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Thursday, May 18, 2017

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. ”


                        IN THE SUPREME COURT OF INDIA

                      CRIMINAL APPEAL NO. 1062 OF 2007

              FAZAR ALI & ORS.            ........APPELLANT(S)


             STATE OF ASSAM                 .........RESPONDENT

                               J U D G M E N T


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

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-

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
“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
"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

(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
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.

                                               [A. K. SIKRI]

New Delhi
April 21, 2017.

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