Hon'ble Mr. Justice Mohan M. Shantanagoudar
NONREPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1839 OF 2010
Md. Rojali Ali & Ors. .....Appellants
Versus
The State of Assam , .....Respondent
Ministry of Home Affairs through
the Secretary
J U D G M E N T
MOHAN M. SHANTANAGOUDAR, J.
In this most unfortunate and beastly incident, four persons
fast asleep in their home in the early hours of the morning,
oblivious to their imminent fate, were mercilessly murdered in a
barbaric manner by the armed accused, without any instigation
or provocation.
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2. Against the concurrent judgments of conviction and
sentence dated 29.04.2006 passed by the Additional Sessions
Judge, Barpeta in Sessions Case No. 68/2001 and the judgment
dated 5.3.2010 passed in Criminal Appeal No. 121 of 2006
passed by the Gauhati High Court, this appeal is presented by
the convicted accused.
3. The case of the prosecution in brief is that 26 persons
including the appellants herein, armed with deadly weapons like
spears, arrows, lathis etc. surrounded the house of Md. Aziz Ali,
Md. Kutub Ali, Md. Mamud Ali and Samir Ali at about 6.00 a.m.
on 9.11.1995 and trespassed into their house, dragged them
outside and then assaulted them. As a result of this, Md. Aziz Ali,
Md. Kutub Ali, Md. Mamud Ali and Samir Ali (not mentioned as
deceased in FIR) succumbed to the injuries sustained by them
and one Md. Atar Ali was injured. Though 26 persons were
arrayed as accused in the first information, the chargesheet came
to be filed against 15 persons. During the course of the trial, one
of the accused died, and two others absconded. Thus, the trial
was held against 12 accused, 8 of whom are the appellants
herein. The Trial Court after following due procedure convicted
the appellants under Sections 148, 323 and 302 read with 149 of
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the Indian Penal Code (for short, “the IPC”), and acquitted the
other accused. The judgment of the Trial Court came to be
confirmed by the High Court. Hence, the convicted accused are
in appeal before us.
4. Shri Raj Kishore Chaudhary, appearing on behalf of the
appellants, took us through the material on record, and
contended that though there are six eyewitnesses to the incident
in question, all these eyewitnesses are closely related to the
family of the deceased. It was also contended that the motive for
commission of the offence is very weak, only being to the effect
that on the day before the incident, a minor quarrel took place
between the parties because the bicycles of PW1, Md. Hanif Ali
and accused Md. Saifuddin (absconding) collided with each other.
Thus, according to the appellants, there was no intention on their
part to commit the murder of the four deceased, and moreover
that no weapons were recovered from them. It was further
contended that the prosecution witnesses have suppressed the
death of one Turen Ali, who was part of the group of the accused,
and whose death occurred during the course of the same
incident. In the same incident, six persons from the group of the
accused were also injured. Thus according to the learned
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Counsel for the appellants, the prosecution witnesses have not
come before the Court with clean hands, inasmuch as they
suppressed the origin and genesis of the incident.
Per contra, the advocate for the State argued in support of
the judgment of the courts below.
5. It is not in dispute that in the case at hand, four persons
have died viz., Md. Aziz Ali, Md. Kutub Ali, Md. Mamud Ali and
Samir Ali, and that PW7 Atar Ali was injured in the same
incident. The incident took place at about 6.00 a.m. on 9.11.1995
and the first information came to be registered at 8.30 a.m. on
the same day. A counter first information was filed by one
Promila Begum, wife of Turen Ali (deceased belonging to the
group of the accused) on 11.11.1995 i.e. two days after the date
of the incident in question. In the said counter case, the trial
went on separately in respect of the death of Turen Ali and the
injuries sustained by the other six persons (accused herein).
Thus, there were cases and counter cases related to the incident
in question. Since the case at hand has to be dealt with on the
basis of the material on record on its own merit, we do not
propose to make any comment in respect of the counter case.
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6. As mentioned supra, there are several eyewitnesses, viz.,
PWs 1, 2, 3, 7, 8 and 9, and among them PW7 is the injured eyewitness. It is also not in dispute that they are inter se closely
related to the deceased. PW5 and PW6 are the doctors who
conducted the postmortem examinations.
7. In view of the ample ocular evidence on record, the motive
for commission of the offence may not be so significant in this
matter.
8. PW7, the injured eyewitness testified that after hearing a
hue and cry at about 5.00 a.m., he went to his courtyard and
saw all the accused assaulting Md. Aziz Ali, Md. Kutub Ali, Md.
Mamud Ali and Samir Ali. He specified the overt acts of each of
the accused by deposing that Accused No.5 stabbed Aziz Ali with
a spear; Accused No.12 assaulted Samir Ali with a lathi; Accused
No.8 stabbed Samir Ali with a spear; Accused Saif (absconding)
assaulted Kutub Ali using a heavy bamboo stick; Accused No.2
stabbed Kutub Ali with a spear; Accused No.1 and Accused No.9
assaulted Mamud Ali on the chest, etc. He also deposed that he
himself was assaulted by Accused No.3. Though the prosecution
crossexamined PW7 at length, his evidence remained unshaken.
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Even in the crossexamination, PW7 has reiterated the incident
in question without any blemishes.
9. The evidence of PW7 is fully supported by the evidence of
the other eyewitnesses, i.e., PWs 1, 2, 3, 8 and 9. To satisfy our
conscience, we have gone through the evidence of these witnesses
as well. On examining the same, we find that the Trial Court and
the High Court are justified in observing that these witnesses are
trustworthy and reliable. We do not wish to burden this
judgment by quoting the evidence of all these eyewitnesses,
inasmuch as their evidence has been dealt with in detail by the
Trial Court and the High Court, and the appreciation of the
evidence by the Courts cannot be faulted by us in any manner.
Having considered the evidence of all the eyewitnesses in detail,
suffice it to say that the evidence of all of these eyewitnesses is
consistent with the case of the prosecution with respect to all
material particulars, and is credible and trustworthy. Their
presence on the spot can also not be doubted as they are family
members of the deceased, who could reasonably be expected to
be in their respective houses at the relevant point of time, i.e., the
early hours of the day, when they (as well as the deceased) could
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be expected to have been asleep, and to be about to wake up and
start their daily routine.
10. As regards the contention that all the eyewitnesses are
close relatives of the deceased, it is by now wellsettled that a
related witness cannot be said to be an ‘interested’ witness
merely by virtue of being a relative of the victim. This Court has
elucidated the difference between ‘interested’ and ‘related’
witnesses in a plethora of cases, stating that a witness may be
called interested only when he or she derives some benefit from
the result of a litigation, which in the context of a criminal case
would mean that the witness has a direct or indirect interest in
seeing the accused punished due to prior enmity or other
reasons, and thus has a motive to falsely implicate the accused
(for instance, see State of Rajasthan v. Kalki, (1981) 2 SCC
752; Amit v. State of Uttar Pradesh, (2012) 4 SCC 107; and
Gangabhavani v. Rayapati Venkat Reddy, (2013) 15 SCC
298). Recently, this difference was reiterated in Ganapathi v.
State of Tamil Nadu, (2018) 5 SCC 549, in the following terms,
by referring to the threeJudge bench decision in State of
Rajasthan v. Kalki (supra):
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“14. “Related” is not equivalent to “interested”. A
witness may be called “interested” only when he or she
derives some benefit from the result of a litigation; in
the decree in a civil case, or in seeing an accused
person punished. A witness who is a natural one and
is the only possible eye witness in the circumstances of
a case cannot be said to be “interested”...”
11. In criminal cases, it is often the case that the offence is
witnessed by a close relative of the victim, whose presence on the
scene of the offence would be natural. The evidence of such a
witness cannot automatically be discarded by labelling the
witness as interested. Indeed, one of the earliest statements with
respect to interested witnesses in criminal cases was made by
this Court in Dalip Singh v. State of Punjab, 1954 SCR 145,
wherein this Court observed:
“26. A witness is normally to be considered
independent unless he or she springs from sources
which are likely to be tainted and that usually means
unless the witness has cause, such as enmity against
the accused, to wish to implicate him falsely.
Ordinarily, a close relative would be the last to screen
the real culprit and falsely implicate an innocent
person…”
12. In case of a related witness, the Court may not treat his or
her testimony as inherently tainted, and needs to ensure only
that the evidence is inherently reliable, probable, cogent and
consistent. We may refer to the observations of this Court in
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Jayabalan v. Union Territory of Pondicherry, (2010) 1 SCC
199:
“23. We are of the considered view that in cases where
the Court is called upon to deal with the evidence of
the interested witnesses, the approach of the Court
while appreciating the evidence of such witnesses
must not be pedantic. The Court must be cautious in
appreciating and accepting the evidence given by the
interested witnesses but the Court must not be
suspicious of such evidence. The primary endeavour of
the Court must be to look for consistency. The
evidence of a witness cannot be ignored or thrown out
solely because it comes from the mouth of a person
who is closely related to the victim.”
13. In the instant matter, as already discussed above, we find
the testimony of the eyewitnesses to be consistent and reliable,
and therefore reject the contention of the appellants that the
testimony of the eyewitnesses must be disbelieved because they
are close relatives of the deceased and hence interested
witnesses.
14. Furthermore, though the counsel for the appellants tried to
convince the Court with regard to minor discrepancies in the
evidence of the six eyewitnesses with respect to the manner in
which the assault took place, such attempt remains futile and
cannot be accepted, inasmuch as minor variations in the
evidence of the witnesses are bound to occur in a case like the
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one on hand, wherein a number of accused came in a group and
assaulted a few persons suddenly and mercilessly, out of which a
few died and others sustained injuries. We do not find any major
contradiction in the evidence of the eyewitnesses. Their evidence
is fully supported by the version of the doctors who conducted
the postmortem examinations.
15. It is relevant to note that PW8 and PW9 have clearly deposed
about the death of Turen Ali, for which the counter case was
lodged. Of course, the other eyewitnesses did not depose about
the same. Since the evidence of the two prosecution witnesses
named above reveals that the accused party had also sustained
injuries and one of them had expired, we do not find any ground
to conclude that the prosecution tried to suppress the origin and
genesis of the incident.
16. The evidence clearly reveals that the accused are the
aggressors who came in a group to the house of deceased,
trespassed into their houses, dragged the deceased out and
mercilessly assaulted the deceased with sharp spears, arrows
and lathis. The incident had taken place at about 6.00 a.m.,
which suggests that all the accused came with the clear intention
to commit the murder of the four persons in the early hours of
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the day. The accused were armed with deadly weapons and they
came with prior preparation and premeditation. There was no
provocation by the deceased or by the injured. In view of the
same, it cannot be said that there was no intention on the part of
the accused to commit murder.
17. Having regard to the totality of the facts and circumstances
of the case, we find no ground to interfere with the impugned
judgment. Hence, the appeal is hereby dismissed.
..........................................J.
(L. Nageswara Rao)
............................................J.
(Mohan M. Shantanagoudar)
New Delhi;
February 19, 2019.
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