REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1062 OF 2007
FAZAR ALI & ORS. ........APPELLANT(S)
VERSUS
STATE OF ASSAM .........RESPONDENT
J U D G M E N T
ASHOK BHUSHAN, J.
1. This appeal has been filed by eight accused who have been convicted
under Section 302 read with Section 149 IPC and sentenced to under go life
imprisonment by trial court as well as by High Court. The prosecution case
is that on 12.11.1993 in the morning at about 8.00 AM twelve accused
persons have attacked complainant, his father Samsuddin, his brother Abdul
Rahman and his mother-in-law. Accused were armed with dao, lathi, jathi,
dagger etc. After injuring Samsuddin and Abdul Rahman the accused did not
allow the injured to be taken to hospital for about three hours and it was
only when large number of villagers assembled and impressed upon the
accused to let the injured to be taken to hospital, Samsuddin and Abdul
Rahman could be taken to hospital. Both Samsuddin and Abdul Rahman were
referred to Nagaon Civil Hospital where Abdul Rahman died on the same day
at 4.00 PM.
2. A written complaint was submitted by Afazuddin son of Samsuddin and
brother of Abdul Rahman, which had the thumb impression of Afazuddin
whereunder names of five accused Sekendar Ali, Abu Taher, Abdul Sattar,
Fazar Ali and Akkash Ali were mentioned with seven other accused. Complaint
was initially registered under Section 147, 148, 149 and 326 IPC in which
Section 302 IPC was added subsequent to death of Abdul Rahman.
3. I.O. on the same day of incident examined Rustam Ali, Afazuddin,
Muslemuddin, Abdul Sattar (Son of Mafizuddin), Samsuddin, Jakir Hussain,
Giasuddin, Jahura Khatoon and Fatema Khatoon.
4. After investigation of the appellants, the charge sheet was submitted
against eleven accused, one of the accused named Abu Taher had died on
01.03.1999. Prosecution produced thirteen witnesses to prove the charge
which included two Investigating Officers and two Medical Officers. The
trial court, after considering the entire evidence on record by judgment
dated 08.10.2002(Session Case No.20 of 99, GR No.979/93) held all the
accused guilty and convicted them to the following effect:
"15. So, in view of discussion above, I convict and sentence accused
Sattar, Rafiqul, Akkash Ali, Fakaruddin, Nuruddin, Sekander, Motin, Idrish
Ali and Fazar to undergo rigorous imprisonment for one year each for their
offence punishable under Section 148 IPC and also I convict and sentence
all these accused persons to undergo their rigorous life imprisonment with
a fine of Rs. 1000/- each in default rigorous imprisonment for two months
for their offence. Offence punishable U/s 302/149 IPC. I also convict and
sentence accused Sattar, Rafiqul, Akkash Ali, Fakaruddin, Nuruddin with an
imprisonment for a period of six months for their offence punishable U/s.
323/149 IPC. The prosecution failed to establish case punishable U/s.
148/302/323/149 IPC against accused Islamuddin and Jakir Hussain for which
they are acquitted forthwith. The bail bonds of all accused persons stand
cancelled. The sentence of all 9 convicts as stated above will run
concurrently.”
5. It is also relevant to note that with regard to the incident on
12.11.1993 a cross-case was also registered being Case No. 978/93 in which
Samsuddin and three others were accused. In the cross-case, it was alleged
that injury was inflicted by Samsuddin and his sons in which Abdul Sattar
received injuries.
6. On cross-case Sessions Case No. 41/99 (G R Case No.978/93) was
registered under Section 325 IPC. Accused Samsuddin and others by judgment
dated 8.10.2002 were given clean aquittal in the cross-case.
7. Accused aggrieved by the judgment, against the conviction have filed
a Criminal Appeal No. 420/2002. The High Court after hearing the learned
counsel for the parties vide its judgment and order dated 21.12.2005
dismissed the criminal appeal, aggrieved by which judgment the eight
appellants have filed this appeal.
8. Learned counsel for the appellant in support of the appeal contends
that in First Information Report which was lodged by Afazuddin son of
Samsuddin and brother of Abdul Rahman(deceased) had mentioned only five
names of the accused whereas charge sheet was submitted against twelve
accused. It is submitted that Afazuddin claims to be eye-witness, hence,
there was no reason for not mentioning the names of all the accused in the
FIR and non-mention of other accused in the FIR naturally indicates that
others have been roped in subsequently.
9. It is further submitted that there was a lot of contradiction in the
statement of witnesses recorded before the Court and that of recorded by
Police under Section 161 Cr. P.C. The contradiction in evidence of eye-
witnesses makes their evidence untrustworthy. The trial court ought to
have taken note of such contradiction and discarded the evidence of eye-
witneses.
10. Learned counsel for the State refuting the submission of the learned
counsel for the appellants contends that mere non-mention of other accused
in the FIR cannot mean that other accused could not have been charge-
sheeted after investigation. It is submitted that contradiction pointed
out in the statement of witnesses does not in any manner shake their
evidence. The incident took place in the courtyard/joining pathway of house
of Afazuddin. All the accused being armed with different weapons have
caused injuries. Injured witnesses were not allowed to come out from their
houses for about three hours. All the witnesses in their statements have
proved the specific role of accused in causing injury to Samsuddin and
deceased Abdul Rahman. Both trial court and the High Court have correctly
appreciated the evidence and relying on the evidence have rightly convicted
the accused.
11. We have considered submissions of learned counsel for the parties and
perused the record.
12. The first submission of learned counsel for the appellants is that
their being only five accused named in the FIR others have been wrongly
roped in the FIR. He has submitted that Afazuddin, the informant being son
of the Samsuddin and being an eye-witness ought to have mentioned the names
of all the accused who had participated in the incident.
13. To appreciate this submission, few facts need to be noted. The
translated copy of the First Information Report is in the record of the
High Court, in the column of name and residence of accused following is
mentioned:
“Name and residence of accused:-
1) Sekandar Ali, S/O Amiruddin,
2) Abu Taher, S/O Do.
3) A. Sattar, S/O Eman Ali
4) Tazor Ali, S/O Do.
5) Akkash Ali, S/O. Amiruddin
and 7 others.
All are Vill. Durabandhi Gaon,
P. S. Moirabari,
Dist. Morigaon (Assam).”
14. Further, FIR mentions written report received from complainant
Afazuddin. The written report indicates that Afazuddin has put his thumb
impression on the FIR. The Afazuddin was examined as PW. 2. In the cross-
examination, when he was put the question why names of other accused were
not mentioned in the FIR, he stated the following:-
"Cross Examination: Giasuddin is my younger brother. I had had the ejahar
written at a hotel in Mairabari bus syndicate premises. From that place the
police station is about 100/150 yards away. I had not gone to the police
station before having had the ejahar written. I had had five accused named
in the ejahar. I had told Karim the names of seven others. Karim had
advised me to add those names only later. He had said that I should go to
the police station with him later and add those seven names.”
15. From the above, three facts are clear:- Firstly, FIR although
mentions name of only five accused but FIR clearly mentions that seven more
accused persons were there. Thus, FIR clearly mentions that the number of
accused persons were twelve. Thus present is not a case where only those
five persons who were named, were accused, but FIR from the very beginning
is claiming that apart from those five, seven others are also accused. In
the investigation, when names of seven others had surfaced the charge-sheet
was submitted against twelve accused. The submission that since in the
FIR names of seven other accused were not disclosed, they could not have
been charge-sheeted, can not be accepted. Secondly, in his cross-
examination informant clearly mentioned that he had told the names of other
seven accused persons also to writer Karim, who had written the FIR but,
informant being illiterate had put only thumb impression on the FIR. Not
naming other seven accused although, number of seven other accused were
mentioned in the FIR is inconsequential and on this ground, there is no
substance in the submission of the learned counsel for the appellants that
since names of other accused were not mentioned in the FIR except five
names, others could not have been convicted.
16. Now, we come to the next submission of the learned counsel for the
appellant that there are contradiction in the statements made by witnesses
before the Court as compared to the statements made before the Police under
Section 161 Cr. P.C.
17. The present is a case where incident took place in adjoining
way/courtyard of the residential house of informant in the morning at about
8.00 AM. The presence of the family members in the house at Courtyard of
informant was natural. Three injured witnesses were examined by Dr.
Rafiqul Islam who had appeared, as PW.11 and proved the injuries. The
injuries were noted by Rafiqul Islam PW.11 inflicted on Samsuddin, Jahura
Khatun and Afazuddin. Dr. Rafiqul Islam PW.11 stated the following in his
evidence:
"On 12.11.1993, I was M&HO-I at Moirabari C.H.C. On that day, I examined
(1) Abdul Rahman, (2) Samsuddin, (3) Jahura Khatun, and (4) Afazuddin on
police requisition and found the following:-
(1) Abdul Rahman, son of Md. Samsuddin of Village Dorabandi. The patient
was referred to Nagaon Civil Hospital for further investigation and
treatment.
(2) Samsuddin, son of Late Sudhir Seikh -
Lacerated injury on scalp, size 1½” X ½” X ½”. Multiple abrasion over the
forehead. Fresh and simple wounds caused by blunt object. Patient was
referred to Nagaon Civil Hospital.”
(3) Jahura Khatun, wife of Ismat Ali
Swelling over the right arm, size 1½” X ½” X ½”.
Laceration over the left thumb, size 1” X ½” X ½”
Fresh and simple wounds caused by blunt object.
(4) Afazuddin, son of Samsuddin -
Swelling over the right thumb. Swelling over the back.
Fresh and simple wounds caused by blunt object.”
18. Both Samsuddin and Afazuddin have examined themselves in the Court.
Samsuddin examined himself as PW.5 and Afazuddin the informant has
examined himself as PW.2. Jahura Khatun has been examined as PW. 9. All eye-
witnesses have corroborated the incident and have proved the role of
accused persons in causing injuries to Samsuddin, Abdul Rahman(deceased)
and others.
19. PW.5 Samsuddin has proved the incident and the role of the different
accused in his eye-witness account. Much emphasis has been laid down by
the learned counsel for the appellants that there are contradictions in the
statement of eye-witnesses recorded before the Court as compared to one
which was recorded by the Police, it is submitted that several eye-
witnesses who appeared before the Court and assigned the role to different
accused had not so assigned to the different accused before the Police when
their statement under Section 161 Cr.P.C. was recorded.
20. All the eye-witnesses have assigned the role of all the accused of
causing injuries in their statements. PW.1 and PW.4 are two independent
witnesses who have also proved the incident and role of the accused. The
mere fact that, there are certain inconsistencies with regard to the manner
of causing injuries to Samsuddin and Abdul Rahman by the witnesses as
deposed in the court and as noted in the statement under Section 161
Cr.P.C., can in no manner shake the entire evidence or make the statement
of witnesses unreliable.
21. There are two reasons for not accepting the above arguments; firstly,
before the Police also the role of accused was mentioned by eye-witnesses.
In their statements under Section 161 Cr.P C and before the Court also eye-
witnesses proved the role of the accused and presence of the accused.
Hence, the eye-witness account of witnesses proves the presence of the
accused. They have been rightly convicted under Section 302 read with 49
IPC.
22. Secondly, there is clear evidence of eye-witnesses that accused
persons did not allow the injured to come out from their house for about
three hours. In spite of the request being made by neighbours and other
persons present on the spot, accused have almost seized the house and did
not permit injured Afazuddin, Abdul Rahman and Samsuddin to come out or to
go for treatment. Finding to this effect has been recorded both by trial
court and High Court. Each person being a member of unlawful assembly is
guilty of offence being committed in prosecution of common object, has been
held both by trial court and High Court. This Court in Chandrappa and
Others versus State of Karnataka, (2008) 11 SCC 328 has laid down that it
is unreasonable to expect from a witness to give a picture perfect report
of the incident and minor discrepancies in their statement have to be
ignored. Para 17 and 18 of the judgment is extracted as below:-
“17. It has been contended by the learned Counsel for the appellants that
the discrepancies between the statements of the eyewitnesses inter se would
go to show that they had not seen the incident and no reliance could thus
be placed on their testimony. It has been pointed out that their statements
were discrepant as to the actual manner of assault and as to the injuries
caused by each of the accused to the deceased and to PW3, the injured
eyewitness. We are of the opinion that in such matters it would be
unreasonable to expect a witness to give a picture perfect report of the
injuries caused by each accused to the deceased or the injured more
particularly where it has been proved on record that the injuries had been
caused by several accused armed with different kinds of weapons.
18. We also find that with the passage of time the memory of an eyewitness
tends to dim and it is perhaps difficult for a witness to recall events
with precision. We have gone through the record and find that the evidence
had been recorded more than five years after the incident and if the memory
had partly failed the eye witnesses and if they had not been able to give
an exact description of the injuries, it would not detract from the
substratum of their evidence. It is however very significant that PW 2 is
the sister of the four appellants, the deceased and PW 3 Devendrappa and in
the dispute between the brothers she had continued to reside with her
father Navilapa who was residing with the appellants, but she has
nevertheless still supported the prosecution. We are of the opinion that in
normal circumstances she would not have given evidence against the
appellants but she has come forth as an eyewitness and supported the
prosecution in all material particulars.”
23. It is also relevant to notice that accused party has also filed a
cross-case in which Samsuddin and his sons were charge-sheeted under
Section 325 IPC which resulted in acquittal by the trial court by judgment
and order dated 08.10.2002. The accused were found aggressor and after
accused being found present and having caused injuries which resulted in
death of Abdul Rahman both the Courts below did not commit any error in
convicting the accused under Section 302 read with 149 IPC.
24. We have gone through the oral evidence recorded before the trial
court. A translated copy of such statement in English is being available on
the record of the High court. We are of the view that finding of guilt
recorded by trial court is based on correct appreciation of evidence. Minor
contradictions and inconsistencies as pointed out by the learned counsel
for the appellants rightly have been ignored by the courts below.
25. The High Court in para 10 of its judgment has stated:-
“10.In this case, we find from the evidence on record that the
intention/object of the unlawful assembly was to assault and teach the
victims a lesson and for that purpose they came armed with weapons in the
early hours of the day and they also did not remain satisfied by assaulting
the accused persons and causing injuries on them. Despite of all pleas for
mercy, they did not allow the injured persons to be taken to hospital,
detained them in the house for long three hours and as a consequent, they
were deprived of their medical treatment and when they were taken to the
hospital, it was too late for Abdul Rahman, who succumbed to his injuries
at the hospital. Hence, the common object and the intention of the accused
persons is apparent. ”
26. We do not find any merit in the appeal. The appeal stands dismissed.
.................J
[A. K. SIKRI]
..................J
[ASHOK BHUSHAN]
New Delhi
April 21, 2017.
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1062 OF 2007
FAZAR ALI & ORS. ........APPELLANT(S)
VERSUS
STATE OF ASSAM .........RESPONDENT
J U D G M E N T
ASHOK BHUSHAN, J.
1. This appeal has been filed by eight accused who have been convicted
under Section 302 read with Section 149 IPC and sentenced to under go life
imprisonment by trial court as well as by High Court. The prosecution case
is that on 12.11.1993 in the morning at about 8.00 AM twelve accused
persons have attacked complainant, his father Samsuddin, his brother Abdul
Rahman and his mother-in-law. Accused were armed with dao, lathi, jathi,
dagger etc. After injuring Samsuddin and Abdul Rahman the accused did not
allow the injured to be taken to hospital for about three hours and it was
only when large number of villagers assembled and impressed upon the
accused to let the injured to be taken to hospital, Samsuddin and Abdul
Rahman could be taken to hospital. Both Samsuddin and Abdul Rahman were
referred to Nagaon Civil Hospital where Abdul Rahman died on the same day
at 4.00 PM.
2. A written complaint was submitted by Afazuddin son of Samsuddin and
brother of Abdul Rahman, which had the thumb impression of Afazuddin
whereunder names of five accused Sekendar Ali, Abu Taher, Abdul Sattar,
Fazar Ali and Akkash Ali were mentioned with seven other accused. Complaint
was initially registered under Section 147, 148, 149 and 326 IPC in which
Section 302 IPC was added subsequent to death of Abdul Rahman.
3. I.O. on the same day of incident examined Rustam Ali, Afazuddin,
Muslemuddin, Abdul Sattar (Son of Mafizuddin), Samsuddin, Jakir Hussain,
Giasuddin, Jahura Khatoon and Fatema Khatoon.
4. After investigation of the appellants, the charge sheet was submitted
against eleven accused, one of the accused named Abu Taher had died on
01.03.1999. Prosecution produced thirteen witnesses to prove the charge
which included two Investigating Officers and two Medical Officers. The
trial court, after considering the entire evidence on record by judgment
dated 08.10.2002(Session Case No.20 of 99, GR No.979/93) held all the
accused guilty and convicted them to the following effect:
"15. So, in view of discussion above, I convict and sentence accused
Sattar, Rafiqul, Akkash Ali, Fakaruddin, Nuruddin, Sekander, Motin, Idrish
Ali and Fazar to undergo rigorous imprisonment for one year each for their
offence punishable under Section 148 IPC and also I convict and sentence
all these accused persons to undergo their rigorous life imprisonment with
a fine of Rs. 1000/- each in default rigorous imprisonment for two months
for their offence. Offence punishable U/s 302/149 IPC. I also convict and
sentence accused Sattar, Rafiqul, Akkash Ali, Fakaruddin, Nuruddin with an
imprisonment for a period of six months for their offence punishable U/s.
323/149 IPC. The prosecution failed to establish case punishable U/s.
148/302/323/149 IPC against accused Islamuddin and Jakir Hussain for which
they are acquitted forthwith. The bail bonds of all accused persons stand
cancelled. The sentence of all 9 convicts as stated above will run
concurrently.”
5. It is also relevant to note that with regard to the incident on
12.11.1993 a cross-case was also registered being Case No. 978/93 in which
Samsuddin and three others were accused. In the cross-case, it was alleged
that injury was inflicted by Samsuddin and his sons in which Abdul Sattar
received injuries.
6. On cross-case Sessions Case No. 41/99 (G R Case No.978/93) was
registered under Section 325 IPC. Accused Samsuddin and others by judgment
dated 8.10.2002 were given clean aquittal in the cross-case.
7. Accused aggrieved by the judgment, against the conviction have filed
a Criminal Appeal No. 420/2002. The High Court after hearing the learned
counsel for the parties vide its judgment and order dated 21.12.2005
dismissed the criminal appeal, aggrieved by which judgment the eight
appellants have filed this appeal.
8. Learned counsel for the appellant in support of the appeal contends
that in First Information Report which was lodged by Afazuddin son of
Samsuddin and brother of Abdul Rahman(deceased) had mentioned only five
names of the accused whereas charge sheet was submitted against twelve
accused. It is submitted that Afazuddin claims to be eye-witness, hence,
there was no reason for not mentioning the names of all the accused in the
FIR and non-mention of other accused in the FIR naturally indicates that
others have been roped in subsequently.
9. It is further submitted that there was a lot of contradiction in the
statement of witnesses recorded before the Court and that of recorded by
Police under Section 161 Cr. P.C. The contradiction in evidence of eye-
witnesses makes their evidence untrustworthy. The trial court ought to
have taken note of such contradiction and discarded the evidence of eye-
witneses.
10. Learned counsel for the State refuting the submission of the learned
counsel for the appellants contends that mere non-mention of other accused
in the FIR cannot mean that other accused could not have been charge-
sheeted after investigation. It is submitted that contradiction pointed
out in the statement of witnesses does not in any manner shake their
evidence. The incident took place in the courtyard/joining pathway of house
of Afazuddin. All the accused being armed with different weapons have
caused injuries. Injured witnesses were not allowed to come out from their
houses for about three hours. All the witnesses in their statements have
proved the specific role of accused in causing injury to Samsuddin and
deceased Abdul Rahman. Both trial court and the High Court have correctly
appreciated the evidence and relying on the evidence have rightly convicted
the accused.
11. We have considered submissions of learned counsel for the parties and
perused the record.
12. The first submission of learned counsel for the appellants is that
their being only five accused named in the FIR others have been wrongly
roped in the FIR. He has submitted that Afazuddin, the informant being son
of the Samsuddin and being an eye-witness ought to have mentioned the names
of all the accused who had participated in the incident.
13. To appreciate this submission, few facts need to be noted. The
translated copy of the First Information Report is in the record of the
High Court, in the column of name and residence of accused following is
mentioned:
“Name and residence of accused:-
1) Sekandar Ali, S/O Amiruddin,
2) Abu Taher, S/O Do.
3) A. Sattar, S/O Eman Ali
4) Tazor Ali, S/O Do.
5) Akkash Ali, S/O. Amiruddin
and 7 others.
All are Vill. Durabandhi Gaon,
P. S. Moirabari,
Dist. Morigaon (Assam).”
14. Further, FIR mentions written report received from complainant
Afazuddin. The written report indicates that Afazuddin has put his thumb
impression on the FIR. The Afazuddin was examined as PW. 2. In the cross-
examination, when he was put the question why names of other accused were
not mentioned in the FIR, he stated the following:-
"Cross Examination: Giasuddin is my younger brother. I had had the ejahar
written at a hotel in Mairabari bus syndicate premises. From that place the
police station is about 100/150 yards away. I had not gone to the police
station before having had the ejahar written. I had had five accused named
in the ejahar. I had told Karim the names of seven others. Karim had
advised me to add those names only later. He had said that I should go to
the police station with him later and add those seven names.”
15. From the above, three facts are clear:- Firstly, FIR although
mentions name of only five accused but FIR clearly mentions that seven more
accused persons were there. Thus, FIR clearly mentions that the number of
accused persons were twelve. Thus present is not a case where only those
five persons who were named, were accused, but FIR from the very beginning
is claiming that apart from those five, seven others are also accused. In
the investigation, when names of seven others had surfaced the charge-sheet
was submitted against twelve accused. The submission that since in the
FIR names of seven other accused were not disclosed, they could not have
been charge-sheeted, can not be accepted. Secondly, in his cross-
examination informant clearly mentioned that he had told the names of other
seven accused persons also to writer Karim, who had written the FIR but,
informant being illiterate had put only thumb impression on the FIR. Not
naming other seven accused although, number of seven other accused were
mentioned in the FIR is inconsequential and on this ground, there is no
substance in the submission of the learned counsel for the appellants that
since names of other accused were not mentioned in the FIR except five
names, others could not have been convicted.
16. Now, we come to the next submission of the learned counsel for the
appellant that there are contradiction in the statements made by witnesses
before the Court as compared to the statements made before the Police under
Section 161 Cr. P.C.
17. The present is a case where incident took place in adjoining
way/courtyard of the residential house of informant in the morning at about
8.00 AM. The presence of the family members in the house at Courtyard of
informant was natural. Three injured witnesses were examined by Dr.
Rafiqul Islam who had appeared, as PW.11 and proved the injuries. The
injuries were noted by Rafiqul Islam PW.11 inflicted on Samsuddin, Jahura
Khatun and Afazuddin. Dr. Rafiqul Islam PW.11 stated the following in his
evidence:
"On 12.11.1993, I was M&HO-I at Moirabari C.H.C. On that day, I examined
(1) Abdul Rahman, (2) Samsuddin, (3) Jahura Khatun, and (4) Afazuddin on
police requisition and found the following:-
(1) Abdul Rahman, son of Md. Samsuddin of Village Dorabandi. The patient
was referred to Nagaon Civil Hospital for further investigation and
treatment.
(2) Samsuddin, son of Late Sudhir Seikh -
Lacerated injury on scalp, size 1½” X ½” X ½”. Multiple abrasion over the
forehead. Fresh and simple wounds caused by blunt object. Patient was
referred to Nagaon Civil Hospital.”
(3) Jahura Khatun, wife of Ismat Ali
Swelling over the right arm, size 1½” X ½” X ½”.
Laceration over the left thumb, size 1” X ½” X ½”
Fresh and simple wounds caused by blunt object.
(4) Afazuddin, son of Samsuddin -
Swelling over the right thumb. Swelling over the back.
Fresh and simple wounds caused by blunt object.”
18. Both Samsuddin and Afazuddin have examined themselves in the Court.
Samsuddin examined himself as PW.5 and Afazuddin the informant has
examined himself as PW.2. Jahura Khatun has been examined as PW. 9. All eye-
witnesses have corroborated the incident and have proved the role of
accused persons in causing injuries to Samsuddin, Abdul Rahman(deceased)
and others.
19. PW.5 Samsuddin has proved the incident and the role of the different
accused in his eye-witness account. Much emphasis has been laid down by
the learned counsel for the appellants that there are contradictions in the
statement of eye-witnesses recorded before the Court as compared to one
which was recorded by the Police, it is submitted that several eye-
witnesses who appeared before the Court and assigned the role to different
accused had not so assigned to the different accused before the Police when
their statement under Section 161 Cr.P.C. was recorded.
20. All the eye-witnesses have assigned the role of all the accused of
causing injuries in their statements. PW.1 and PW.4 are two independent
witnesses who have also proved the incident and role of the accused. The
mere fact that, there are certain inconsistencies with regard to the manner
of causing injuries to Samsuddin and Abdul Rahman by the witnesses as
deposed in the court and as noted in the statement under Section 161
Cr.P.C., can in no manner shake the entire evidence or make the statement
of witnesses unreliable.
21. There are two reasons for not accepting the above arguments; firstly,
before the Police also the role of accused was mentioned by eye-witnesses.
In their statements under Section 161 Cr.P C and before the Court also eye-
witnesses proved the role of the accused and presence of the accused.
Hence, the eye-witness account of witnesses proves the presence of the
accused. They have been rightly convicted under Section 302 read with 49
IPC.
22. Secondly, there is clear evidence of eye-witnesses that accused
persons did not allow the injured to come out from their house for about
three hours. In spite of the request being made by neighbours and other
persons present on the spot, accused have almost seized the house and did
not permit injured Afazuddin, Abdul Rahman and Samsuddin to come out or to
go for treatment. Finding to this effect has been recorded both by trial
court and High Court. Each person being a member of unlawful assembly is
guilty of offence being committed in prosecution of common object, has been
held both by trial court and High Court. This Court in Chandrappa and
Others versus State of Karnataka, (2008) 11 SCC 328 has laid down that it
is unreasonable to expect from a witness to give a picture perfect report
of the incident and minor discrepancies in their statement have to be
ignored. Para 17 and 18 of the judgment is extracted as below:-
“17. It has been contended by the learned Counsel for the appellants that
the discrepancies between the statements of the eyewitnesses inter se would
go to show that they had not seen the incident and no reliance could thus
be placed on their testimony. It has been pointed out that their statements
were discrepant as to the actual manner of assault and as to the injuries
caused by each of the accused to the deceased and to PW3, the injured
eyewitness. We are of the opinion that in such matters it would be
unreasonable to expect a witness to give a picture perfect report of the
injuries caused by each accused to the deceased or the injured more
particularly where it has been proved on record that the injuries had been
caused by several accused armed with different kinds of weapons.
18. We also find that with the passage of time the memory of an eyewitness
tends to dim and it is perhaps difficult for a witness to recall events
with precision. We have gone through the record and find that the evidence
had been recorded more than five years after the incident and if the memory
had partly failed the eye witnesses and if they had not been able to give
an exact description of the injuries, it would not detract from the
substratum of their evidence. It is however very significant that PW 2 is
the sister of the four appellants, the deceased and PW 3 Devendrappa and in
the dispute between the brothers she had continued to reside with her
father Navilapa who was residing with the appellants, but she has
nevertheless still supported the prosecution. We are of the opinion that in
normal circumstances she would not have given evidence against the
appellants but she has come forth as an eyewitness and supported the
prosecution in all material particulars.”
23. It is also relevant to notice that accused party has also filed a
cross-case in which Samsuddin and his sons were charge-sheeted under
Section 325 IPC which resulted in acquittal by the trial court by judgment
and order dated 08.10.2002. The accused were found aggressor and after
accused being found present and having caused injuries which resulted in
death of Abdul Rahman both the Courts below did not commit any error in
convicting the accused under Section 302 read with 149 IPC.
24. We have gone through the oral evidence recorded before the trial
court. A translated copy of such statement in English is being available on
the record of the High court. We are of the view that finding of guilt
recorded by trial court is based on correct appreciation of evidence. Minor
contradictions and inconsistencies as pointed out by the learned counsel
for the appellants rightly have been ignored by the courts below.
25. The High Court in para 10 of its judgment has stated:-
“10.In this case, we find from the evidence on record that the
intention/object of the unlawful assembly was to assault and teach the
victims a lesson and for that purpose they came armed with weapons in the
early hours of the day and they also did not remain satisfied by assaulting
the accused persons and causing injuries on them. Despite of all pleas for
mercy, they did not allow the injured persons to be taken to hospital,
detained them in the house for long three hours and as a consequent, they
were deprived of their medical treatment and when they were taken to the
hospital, it was too late for Abdul Rahman, who succumbed to his injuries
at the hospital. Hence, the common object and the intention of the accused
persons is apparent. ”
26. We do not find any merit in the appeal. The appeal stands dismissed.
.................J
[A. K. SIKRI]
..................J
[ASHOK BHUSHAN]
New Delhi
April 21, 2017.
