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IN THE COURT OF THE ADDITIONAL SESSIONS JUDGE NO. 1
KAMRUP (METRO), GUWAHATI.
PRESENT : Shri A. Chakravarty, M.A., LL.M., AJS
Sessions Case No. 278(K)/2001Under Section 302/34 IPC
Corresponding to G.R. Case No. 4443/94
STATE OF ASSAM
–Versus-
1. SYED ZAKIR HUSSAIN
2 SRI SANKAR SARMAH
3. SRI PRANJAL DAS @ BABA
4. MD. RUBUL ALI @ BABLU ALI
5. SRI HEMEN MALAKAR
6.SRI ARUP DAS ...Accused
(The Case was committed by the learned Special Judicial
Magistrate, Assam, Guwahati)
Evidence recorded on : 26.04.02, 17.12.02, 03.04.03, 11.06.03, 07.04.04, 27.06.06, 10.01.07, 09.02.07, 04.09.08, 15.02.10, 06.12.10 & 25.08.11
Arguments heard on : 18.03.2014
Judgment delivered on : 02.04.2014
Advocates who appeared in this case are:-
Shri G.Das, Addl. P.P., for the prosecution
Shri R.D. Lal, Shri B.B. Talukdar, Shri S. Das, Shri R.R.
Baishya, Shri Z. Alam Advocates, for the defence
J U D G M E N T
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1. This case may perhaps be treated as a worst example of
denial of justice for the proverbial delay, which took almost two
decades to complete the trial. The case is regarding the murder of a
college student by some of his collegemates over a quarrel
regarding some monetary transactions between them. The delay
may perhaps be attributed to the Court, as well as to the dilatory
tactics of the accused. Even today, the case will not be finally
disposed of. Because one of the accused, namely Rajib Hussain,
has approached the Hon’ble High Court over the plea of juvenility,
which was earlier rejected by my learned predecessor long back on
7.4.2004 and his petition has not yet been disposed of by the
Hon’ble High Court. But, my learned predecessor separated his
case from the other accused as the case was pending for disposal
for about two decades and when I joined the Court, I found that the
case was fixed for arguments, and hence, I had to hear the
arguments, though I believe, that the case should not have been
separated and should have been disposed of after disposal of the
aforesaid petition by the Hon’ble High Court. But, as this criminal
Court has no inherent power to review its own order and as the
learned counsel for the other accused were ready to argue their
case, I heard the arguments and deliver the following judgment:-
2. On the fateful day of 22.12.1994, at about 8.00 PM,
accompanied by his friends Gautam Kalita (the deceased) and
Simanta Bora (the PW2), while the informant Hemen Kalita (the
PW4), was proceeding towards Nepali chowk, to meet Pradip and
Dhruba for marketing and collecting money for the picnic scheduled
for the next day, near Haldi (turmeric) mill at Jyotinagar, the accused
Rajib Hussain, Jakir Hussain, Hemen Malakar, Shankar Sharma,
Bablu Ali, and Pranjal waylaid them. Thereafter, the accused
Shankar caught hold of Gautam by his neck and the other accused
hold him by his hands and the accused Rajib assaulted him by
means of a dagger ( a sharp cutting and pointed weapon normally
used as a weapon of offence), on his lower abdomen. Frightened at
the same and as the accused also wanted to assault them, Hemen
and Simanta ran away from the place of occurrence. Later on, they
came to know that their friend Gautam had expired at the East End
Nursing Home (in short, “the nursing home”). Therefore, the
informant lodged the first information report (in short “the FIR”), of
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the incident narrating the above facts with the Chandmari Police
station on 22.12.1994 itself, at 9.40 P.M.
3. On receiving the F.I.R., the Officer-Incharge of the Chandmari
Police Station registered the case No. 387/94, for commission of
offences punishable under Sections 341,302,34 of the Indian Penal
Code, 1860 (In short “the IPC”) and caused investigation. During
course of investigation, several statements came to be recorded
and after collecting the post-mortem examination report, etc., and
completion of investigation, the Investigation Officer submitted
charge sheet for offences under Sections 143, 341, 302 IPC
against accused (1) Rajib Hussain, (2) Zakir Hussain, (3) Sankar
Sharma, (4) Pranjal Das @ Baba, (5) Rubul Ali @ Bablu Ali, (6)
Hemen Malakar and (7) Arup Das, before the Court of the learned
Chief Judicial Magistrate, Kamrup, Guwahati . As the offence under
Section 302 IPC is exclusively triable by the Court of Sessions, after
complying with the provisions of Section 207 of the Code of Criminal
Procedure, 1973 (In short “the Cr.P.C.”), the learned Magistrate
committed the case to the Court of the learned Sessions Judge,
Kamrup, Guwahati for trial. The learned Sessions Judge, Kamrup,
Guwahati transferred the case to this Court for disposal. Hence this
Case.
4. During trial, upon consideration of the record of the case, the
documents submitted therewith and after hearing the submissions of
the accused and the prosecution, finding sufficient grounds for
presuming that the accused have committed an offence punishable
under section 302 read with section 34 IPC which is exclusively
triable by the Court of Sessions, my learned predecessor framed
charge under the said section of law against the accused. When the
charge was read over and explained to the accused, they pleaded
not guilty and claimed to be tried.
5. The prosecution, in order to prove its case, examined eight
witnesses. The accused Hemen Malakar took the plea that at the
time of commission of the alleged offence he was a juvenile and
examined two witnesses to prove the same. The other accused did
not examine any witness.
6. In their examination under Section 313 Cr.P.C., the accused
have denied the prosecution case and have stated that the
allegations levelled against them are false and baseless.
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7. The Point for determination in this case is:-
Whether on 22.12.1994, at about 8.00 P.M., near Haldi mill at
Jyotinagar, under Chandmari Police Station, in furtherance of
common intention of them all, the accused Zakir Hussain, Sankar
Sarmah, Pranjal Das @ Rubul Ali @ Bablu Ali, Hemen Malakar and
Arup Das did commit murder by intentionally causing the death of
Gautam Kalita and thereby committed an offence punishable under
Section 302 read with section 34 IPC?
If so, what punishment they deserve?
DECISION AND REASONS THEREOF
8. I have carefully examined the evidence on record, gone
through the relevant documents on record and after hearing the
arguments advanced by the learned counsel for both the sides and
perusing the written arguments submitted by the learned defence
counsel, give my decision on the above point as follows:-
9. PW1 Prahlad Mahanta, a maternal uncle of the deceased
Gautam Kalita has deposed that on 22.12.1994 two unknown youths
came to his house and informed him that near the Haldi mill at
Ganesh Nagar, Gautam was assaulted by means of dagger and was
taken to the nursing home. He then rushed to the nursing home and
found that Gautam was lying dead. This witness was declared
hostile and was cross-examined by the prosecution. But, in the
cross-examination by the prosecution also, he did not depose
anything more.
10. PW2 Simanta Bora has deposed that he knows the accused
persons. The deceased Gautam was his class mate. On 22,12,1994,
at about 12.00 noon he and Gautam went from Anuradha Cinema
hall to the Gauhati College. Shankar and others were sitting in the
college. At that time, Shankar was not a student of the college. His
friend Rinku Chaudhury and one of Shankar’s friend entered into an
altercation over some monetary transactions. Thereafter, Gautam
went inside a class room. Shankar and his friends then abused
Gautam uttering filthy words. He then gave a slap to one of
Shankar's friends. Shankar then threatened him and told that he will
see him. Thereafter he and Gautam went to their home.
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11. In the evening, at about 04.30/05.00 PM, after taking tea at
Bijay restaurant near Anuradha cinema hall, while he and Gautam
were proceeding towards their home, at Jyotinagar tiniali, Jakir
Hussain, Rajib Hussain, Bablu Ali, Hamen Malakar, Shankar Das,
Arup Sharma and Dalimi waylaid them and Jakir Hussain slapped
him and the others instigated Jakir to assault him. Bablu Ali kicked
Gautam. Hemen Malakar broke the quarrel and rescued them.
Thereafter, they went home. On the way to their home, they met
their friend Hemen Kalita and told him about the incident. Hamen
then wanted to know whether they will go to the picnic or not. He
then told that as a quarrel had taken place, it would not be proper to
go to the picnic. Then Hemen assured them that he will ensure that
nothing will happen. Thereafter, at about 6.30 PM, he Gautam and
Hemen went to Shalbari to meet the boys planning to go to picnic,
through a different road near the Haldi mill. Before reaching the
Haldi mill, they saw the accused Rajib Hussain and others standing
on the road. When they reached near the accused, all the accused
surrounded them and the accused Shankar Das caught hold of
Gautam Kalita by his neck and the accused Rajib Hussain gave
blows to Gautam by means of a dagger. The other accused were
present there and they wanted to assault them. They then ran away
through three different roads and the accused also ran away, but
Dalimi remained there. After a few minute, he returned and saw that
Gautam Kalita was running away with injuries. Then he took Gautam
Kalita to the hospital by a passing Maruti vehicle. Dalimi helped him.
While they were proceeding towards the nursing home, he saw that
Jakir Hussain was running away through the road. Gautam asked
him to hold him and thereafter Gautam stopped talking. After they
reached the nursing home, the doctor told him that Gautam has
expired. He then went to Gautam’s house and told his maternal
uncle about the incident. For some time, he was not present in the
nursing home. The Police interrogated him in the nursing home
itself. He went to the police station with the dead body. The post
mortem examination was done at the MMC hospital, Panbazar. Next
day evening the last rite of Gautam was performed. The dead body
was taken to the College. The public also went to the police station
and hospital.
12. In the cross-examination he has stated that he did not tell the
police about the incidents of 12.00 noon and 6.30 PM and has
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deposed about the same to make the incident important. He did not
see the weapon by which the accused Rajib assaulted Gautam. He
informed about the incident at the house of the deceased and the
nursing home informed the police. The accused are friends. He has
denied the suggestions that as Shankar threatened him at the
college that he will see him, he has deposed falsely that at about
7.00 PM, the accused surrounded them and the accused Rajib
Hussain assaulted Gautam. He has denied the suggestions that
actually he did not see who had assaulted Gautam and that due to
previous enmity, he had deposed falsely against the accused. He
has further stated that on the day of the incident there was load
shedding from 07.00 to 8.00 PM. Gautam was a healthy boy. He
used to play kabaddi (a team game), and exercise. He has further
deposed that at the time of the incident there was darkness but, in
the darkness also he recognised the accused.
13. The PW2 was re-cross-examined after about eight years and
thereafter, was further cross-examined. Then he has stated that he
saw the accused Bablu Ali, Rajib Ali and Shankar Ali. He saw Rajib
Hussain from the backside. It was a cold winter day and everybody
was wearing winter clothing and caps. He did not see who amongst
the accused gave the blow. After the assault started they remained
in the place of occurrence and did not flee away. After assaulting the
deceased, the accused left the place of occurrence. After the assault
started they retreated to about thirty feet. Firstly, he took the
deceased to the nursing home and thereafter, he informed the
villagers. That, his statement to the police that from the place of
occurrence he went to the village and called the villagers was not
true. That when the Dagger blow was given, there were three
persons present in the place of occurrence. There were altogether
eight persons. He saw three persons face to face and the rest from
behind. Shankar caught hold of Gautam by neck and Rajib gave a
blow to him by means of a dagger above the left thigh. Thereafter,
he, Hemen Kalita and Gautam Kalita ran away through three
different roads and the accused also left the place of occurrence.
14. PW3 Jonmoni Bora has deposed he knows the accused. They
are his neighbours. He knew the deceased Gautam Kalita. Simanta
Bora (the PW3) happens to be his own brother. On the day of the
alleged incident, at about 07.00/08.00 PM, a youth informed at their
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house that near the Haldi mill, Jakir, Rajib, Shankar, Hemen, Pranjal,
Arup, etc., had quarrelled with Simanta, Gautam and Hemen.
Gautam sustained stab injuries and he was shifted to the hospital.
He then went to the nursing home and found the dead body of
Gautam there. Police were also present at the nursing home. He
identified the dead body before the police. An inquest was held in his
presence. The exhibit-1 is the inquest report and exhibit 1(1) is his
signature thereon. At the prayer of the prosecution, this witness was
declared hostile and he was cross-examined by the prosecution.
But, by cross-examining him, the prosecution could not bring out
anything more, which is obvious, as he is a reported witness.
15. In the cross-examination by the defence, he has stated that
Simanta and Hemen gave the information to him. He has denied the
suggestion that he did not receive the information of the incident.
16. PW4 Hemen Kalita, the informant has deposed that the
incident occurred about eight years ago. On the day of the alleged
incident, at about 7.00 PM he went out from his house for collecting
money for the picnic scheduled for the next day. When he reached
near Aashray hotel at Jyotinagar, he saw that three youths were
quarrelling with Simanta and Gautam. There was darkness. One ran
towards Jyotinagar tiniali and another ran towards the Haldi mill.
Dalim remained standing there. Gautam ran after one youth towards
the Haldi mill. Earlier, himself, Gautam and Simanta went for
collection. The quarrel took place in his presence. Simanta chased
another through the Jyotinagar road. He and Dalimi remained in the
place of occurrence for some time. After sometime, he went to his
house. After half an hour of the said incident, he heard that
somebody stabbed Gautam to death. He then lodged the exhibit-2
FIR of the case. Exhibit 2(1) is his signature thereon. He did not
recognize the assailants who had quarrelled in his presence earlier.
17. At the prayer of the prosecution, this witness was also
declared hostile, and the prosecution cross-examined him. But, in
the cross-examination also, he remained firm to his deposition. In
the cross-examination by the defence, he has stated that some
people gave him in writing the statement written in the exhibit-2 and
asked him to write the same in a separate sheet of paper and lodged
the FIR. He then copied the same and thinking the same to be true,
signed over the same. The accused were not his friends as they
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were junior to him. Gautam Kalita was his bosom friend. He did not
see the accused Hemen Malakar. He had not heard that the
accused Hemen Malakar was also involved in the alleged incident.
The accused Jakir and Rajib are brothers.
18. PW5 Dr. Rajib Borbora, has deposed that on 22.12.1994 he
was working at the Baihata PHC as a medical and health officer. He
did not know the deceased Gautam Kalita. He has been staying at
Jyotinagar since 1988. He does not know about the alleged incident.
The police did not record his statement.
19. PW6 Shri Sobhan Chandra Borah, the investigating officer of
the case has deposed that on 22.12.1994 he was working at the
Chandmari police station as a sub-inspector of police. On that day,
the Officer Incharge of the police station entrusted him to investigate
the instant case. Accordingly he investigated the case. During the
course of investigation, he visited the place of occurrence. The
exhibit-4 is the site plan and exhibit-4(1) is his signature thereon. He
also visited the nursing home and held inquest on the dead body.
Exhibit-1 is the inquest report. He entrusted Constable Jamsher Ali
to take the dead body for post mortem examination. Exhibit-5 is the
command for the same and exhibit 5(1) is his signature thereon.
Exhibit-6 is the dead body challan and exhibit-6(1) is his signature
thereon. He also seized the trouser and under wear worn by the
deceased vide exhibit-7 seizure list. The exhibit-7(1) is his signature
thereon. Material exhibit-I and II are the said seized articles. In the
meantime he was transferred and he handed over the case diary to
Officer Incharge. Thereafter the Officer Incharge entrusted sub-
Inspector Sukumar Sinha to conduct the investigation. Accordingly
he investigated the case and after completion of investigation filed
the exhibit-8 charge sheet against accused Rajib Hussain, Jakir
Hussain, Rubul Ali @ Bablu Ali Shankar Sharma, Pranjal Das, Arup
Das and Hemen Malakar, under sections 143,341,302 IPC.
20. In the cross-examination he has stated that the place of
occurrence was littered with blood but, he did not collect the sample
of blood for sending the same to the FSL to ascertain whether the
same was human blood or not. He did not record the statement of
PW5 Dr. Rajib Borbora. He did not seize any document from the
nursing home. He did not examine the driver of the Maruti vehicle, or
Pradip and Dhruba.
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21. PW7 Sukumar Sinha, the other investigating officer of the
case has deposed that he completed the investigation and submitted
the exhibit-8 charge sheet of the case. In the cross-examination he
has stated that after going through the statements of the witnesses
and the accused, post mortem examination report, etc., he had filed
the charge sheet of the case.
22. PW8 Dr. Deepak Ch. Das, the medical officer who had
conducted the post mortem examination, has deposed he found the
following injuries on the dead body:-
(i) One stab wound 3 cm X 1 cm X abdominal cavity deep in left
iliac region above the inguinal ligament directing obliquely. Lower
end of the wound 7 cm from the root of penis and 5 cm left from
the mid line. Upper end 12 cm left from umbilicus and 7 cm left
from the mid line. Margin of the injury was short. Shape- elliptical.
Blood clot adherent to the margins resistant to water wash.
(ii) Abrasion 2 cm X 1 cm in front of the right knee.
(iii) Walls underneath the injury No.1 were contused.
(iv) Paritoriam staffed at the iliac region. Big vessels cut in the left
iliac region. Abdominal cavity contains 2 litres of blood which
were both liquid and clotted.
(v) Stab wound 3 cm long of lumen deep present 12 cm above
rectum. All structures nearing the wound were contused.
Opinion: Cause of death was shock haemorrhage resulting from
the stab injuries as described. The stab injury was ante mortem and
caused by sharp, pointed weapon and was homicidal in nature.
Approximate time since death was 12 to 24 hours. Exhibit-9 is the
post mortem examination report and exhibit-9 (1) is his signature
thereon.
23. Thus from the evidence of the prosecution witnesses as
discussed above, it can be safely held that, on 22.12.1994, at about
8.00 P.M., near Haldi Mill at Jyotinagar, the accused Zakir Hussain,
Rajib Hussain, Shankar Sarmah, Pranjal Das @ Rubul Ali @ Bablu
Ali, Hemen Malakar and Arup Das, in furtherance of common
intention of them all, voluntarily caused bodily injuries to the
deceased Gautam Kalita by means of a sharp cutting and pointed
instrument which caused his death.
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24. Though there are some discrepancies in the testimonies of the
prosecution witnesses, the same does not make the prosecution
case unbelievable. Rather the same makes the prosecution case
believable and proves that the witnesses were not tutored. The most
important witness of the case, namely PW2 Simanta Bora has not
only proved the case of the prosecution, but has also proved the
motive behind the alleged crime. The motive was to teach a lesson
to the deceased Gautam for the quarrel that took place earlier at
12.00 noon and 5.30 P.M., between the deceased, the PW2 and the
PW4 on the one side and the accused persons on the other side.
The learned defence counsel vehemently argued that as there is
discrepancies regarding who assaulted the deceased Gautam Kalita
and also PW2 has contradicted his earlier statement in regard to the
names and numbers of the accused and how the alleged incident
occurred, the prosecution case is unbelievable and the accused
must, at least, be given the benefit of the doubt. I do not agree with
this contention of the learned defence counsel. Because, firstly, the
PW2 has deposed about the entire incident, and hence, his
subsequent deviation seems to be due to some other reasons,
maybe he was won over by the accused. Further as his subsequent
cross examinations were done after many years of his first
examination, and as human memory fades with the passage of time,
he might have forgotten some of the events. Further, why for three
times cross examination of the PW2 was the allowed and that too,
after long intervals, defy all logic and as has been stated earlier this
Court should be equally blamed for the delay in disposal of the case.
The learned defence counsel further argued that as the PW4, that is,
the other friend of the deceased who was accompanying him at the
time of the alleged incident and has lodged the FIR of the case, has
turned hostile, the prosecution case is liable to be rejected in its
entirety, I do not agree with this contention of the learned defence
counsel either. Because, though the PW4 has turned hostile and has
stated that he simply copied the FIR, he has not denied that he did
not write the FIR. Therefore, his statement that he lodged the FIR of
the incident at the instance of some others is not true in the fact and
circumstances of the case. Further he was one of the natural
persons who could have lodged the FIR as he was with the
deceased at the time of the earlier incidents also, as can be seen
from the deposition of the PW2 Simanta Bora.
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25. The learned defence counsel further argued that as the
Investigating Officer did not put forward any reason for non-
examination of the driver of the Maruti vehicle by which the
deceased was taken to the nursing home, the other companion of
the accused, namely Dalimi, and any persons of locality as witness,
the prosecution case is liable to be rejected in its entirety. I do not
agree with this contention of the learned defence counsel either.
Because, the learned defence counsel did not put forward any
explanation as to why the PW2 Simanta Bora had falsely implicated
the accused persons with the commission of the alleged crime, or
the Investigating Officer had submitted false charge sheet against
the accused. Very strong reason is required to hold that the PW2
and the Investigating Officer had falsely implicated the accused with
the commission of the alleged crime only to save some other
persons. Therefore, the prosecution case must be accepted to be
true.
26. In view of the above testimonies of the prosecution witnesses,
it can be safely held that, on 22.12.1994, at about 8.00 P.M., near
Haldi Mill at Jyotinagar, the accused Zakir Hussain, Sankar Sarmah,
Pranjal Das @ Rubul Ali @ Bablu Ali, Hemen Malakar and Arup
Das, along with the accused Rajib Hussain, in furtherance of
common intention of them all, voluntarily caused bodily injuries to
the deceased Gautam Kalita which caused his death. Now,
therefore, the questions which remain to be answered is whether the
accused assaulted Gautam Kalita with intent to cause such bodily
injuries as they knew to be likely to be cause his death and they
intentionally inflicted such bodily injuries to Gautam Kalita intending
to be sufficient in the ordinary course of nature to cause his death?
27. On this point the testimonies of the PW2 is clear, cogent and
reliable. Further, PW8 Dr. Deepak Ch. Das, the Medical Officer who
had conducted the post-mortem examination on the dead body has
stated in the cross examination that Gautam Kalita died due to the
cut injuries sustained by him. But, in the cross-examination he has
stated that an injury on paritorium cannot, ordinarily, itself cause
death. But, the said fact perhaps was not known to the accused. So,
in the case in hand, as the accused gave more than one blow to
Gautam Kalita by means of the sharp cutting instrument (the PW8
found another stab wound on the dead body), it must be held that
12
the accused stabbed Gautam Kalita with the intent to murder him.
The PW8 has also deposed that the death was due to the shock
and haemorrhage resulting from the stab injuries.
28. The learned counsel for the accused Shankar Sharma and
Rubul Ali @ Bablu Ali, Mr. R.D. Lal has stated in his written
argument that the Investigating Officer should be censured for citing
Dr Rajib Borbora, the PW5, as a witness and for not examining
some material witnesses, like the doctor who had treated the
deceased Gautam Kalita at the nursing home, ward boy and nurse
of the nursing home; and any person having knowledge or
information about the murder of Gautam Kalita. Though, this
contention of the learned defence counsel has merit, for the same
the entire prosecution case, which the prosecution has been able to
prove beyond all reasonable doubt, cannot be thrown out. He has
further argued that police was first informed about the death of
Gautam Kalita by Dr Gajen Kalita and based on his information the
Investigating Officer went to the nursing home for investigation.
Therefore, the said information should have been treated as the FIR
and not the subsequent information lodged by the PW4. Therefore,
for suppressing the FIR, the prosecution case is liable to be rejected.
I do not agree with this contention of the learned defence counsel
either. Because, though on receipt of the information from Dr Gajen
Kalita the Investigating Officer went to the nursing home, that was
routine information and the FIR was lodged by the PW4 immediately
thereafter. Further, Dr Gajen Kalita could not have lodged the FIR as
he had no knowledge about the actual happenings.
29. In the case of Motilal and Anr. Vs. State of Rajasthan, reported in 2009(9)SCALE1, (2009)7SCC454, the Hon’ble
Supreme Court has held that faulty investigation cannot be a
determinative factor and would not be sufficient to throw out a
credible prosecution version.”
30. Again in the case of Dayal Singh and Ors. Vs. State of Uttaranchal, reported in (2012) 8 SCC 263, the Hon’ble Supreme
Court observed as follows:-
“10. This Court has repeatedly held that an eye-witness version
cannot be discarded by the Court merely on the ground that such
eye-witness happened to be a relation or friend of the deceased.
The concept of interested witness essentially must carry with it the
13
element of unfairness and undue intention to falsely implicate the
accused. It is only when these elements are present, and statement
of the witness is unworthy of credence that the Court would examine
the possibility of discarding such statements. But where the
presence of the eye-witnesses is proved to be natural and their
statements are nothing but truthful disclosure of actual facts leading
to the occurrence and the occurrence itself, it will not be permissible
for the Court to discard the statements of such related or friendly
witness.”
31. The learned counsel for the accused Zakir Hussain, Mr. Z.
Alam has submitted in his written argument that the evidence of
PW2 shows that the accused Zakir Hussain had only slapped the
PW2 in the 2nd incident and in the 3rd incident the accused Zakir
Hussain was seen running through the road while the deceased was
being taken to the hospital. The PW2 has stated that the alleged
incident took place in a dark night and he saw the accused from
behind. From the above testimony it cannot be held beyond
reasonable doubt that the accused Zakir Hussain had the knowledge
that the accused Rajib Hussain was carrying a knife when they
surrounded the deceased. Therefore the accused Zakir Hussain
cannot be held guilty of committing the alleged offence with the aid
of section 34 IPC. The learned counsel relied upon the judgments
rendered in the following cases in support of his argument:-
i. 2006 CRL.J. 1632:- For difference between common intention
and common object.
ii. AIR 1989 SC 1593:-There must be material to show that overt
act or acts were done in furtherance of common intention of all the
accused or in prosecution of the common object of members of the
unlawful assembly.
iii. AIR 1999 SC 1557:-Appellant merely standing when the act of
murder was committed by the other four, no evidence led by
prosecution to prove that any of the appellant committed any
criminal act which resulted in death of the victim. Appellant not guilty.
iv. AIR 1994 SC 1961:-The accused along with the co-accused
caught hold of deceased and another accused taking out knife from
his pocket and inflicting single injury on deceased, accused not
14
having prior knowledge that another accused was armed with knife,
common intention on his part, not proved.
v. AIR 1975 SC 12: The fact that the appellant, on whose cycle
the accused was sitting, the accused fired the pistol and the
appellant continued to paddle the bicycle after the accused fired the
pistol and that he too ran away with the accused, would not
necessarily go to show that the shot had been fired in furtherance of
common intention of the two accused. The appellant thereof could
not be held vicariously liable.
vi. AIR 2001 SC 1929:- Accused merely accompanying co-
accused to the house of deceased Merely because the accused
knew that co-accused was himself armed with pistol and also has
knowledge about previous enmity between co-accused and
deceased, inference that accused had common intention to kill
cannot be drawn.
vii. AIR 1998 SC 3243:- Appellant and three others were armed
with knife and lathis. No overt act attributed to appellant. Appellant
dealt lathi blows to other witnesses while other assaulted deceased.
No evidence of exhortation or that appellant assaulted witness to
keep them away and facilitate killing of deceased. Thus there was no
direct evidence that the appellant and other shared common
intention to kill deceased.
Viii. 2013(1) GLT 576:- Accused persons all assaulting the
deceased but no evidence showing who had caused injuries which
proved fatal. No materials to show that appellants shared an
intention to cause fatal injuries found on the deceased. Appellants
however liable for their individual acts. No concrete materials on
record attracting the provision of section 34 IPC. Conviction under
Section 302 read with Section 34 cannot be sustained.
32. But, as can be seen from the discussion made earlier, the
cases referred to by the learned defence counsel will not absolve the
accused Zakir Hussain from his guilt. Because, the fact and the
circumstances of the cases referred to by the learned defence
counsel are different from the facts and circumstances of the case in
our hand. In the case in hand, the evidence of the PW2 shows that
the accused Sankar Sarma caught hold of the deceased by his neck
and the accused Rajib Hussain gave blows to him by means of a
15
sharp cutting, pointed weapon while the other accused were holding
the deceased Gautam Kalita by his hand. Therefore as the accused
Rajib Hussain assaulted the deceased Gautam Kalita by means of a
dagger and all other accused assisted in the said assault, they not
only knew that the accused Zakir Hussain was carrying the sharp
cutting, pointed instrument, but also knew that it was the only
weapon by which the accused wanted to assault and assaulted the
deceased Gautam Kalita. Therefore, all the accused did share a
common intention to assault the deceased.
33. In the case of Virsa Singh v. State of Punjab, reported in MANU/SC/0041/1958 : 1958 CriLJ 818 SC , Hon’ble Supreme
Court has held that,
“To put it shortly, the prosecution must prove the following
facts before it can bring a case under s. 300, "3rdly";
First, it must establish, quite objectively, that a bodily injury is
present;
Secondly, the nature of the injury must be proved; these are
purely objective investigations.
Thirdly, it must be proved that there was an intention to inflict
that particular bodily injury, that is to say, that it was not accidental or
unintentional, or that some other kind of injury was intended.
Once these three elements are proved to be present, the
enquiry proceeds further and.
Fourthly, it must be proved that the injury of the type just
described made up of the three elements set out above is sufficient
to cause death in the ordinary course of nature. This part of the
enquiry is purely objective and inferential and has nothing to do with
the intention of the offender.
Once these four elements are established by the prosecution
(and, of course, the burden is on the prosecution throughout), the
offence is murder under s. 300, 3rdly. It does not matter that there
was no intention to cause death. It does not matter that there was no
intention even to cause an injury of a kind that is sufficient to cause
death in the ordinary course of nature (not that there is any real
distinction between the two). It does not even matter that there is no
knowledge that an act of that kind will be likely to cause death. Once
16
the intention to cause the bodily injury actually found to be proved,
the rest of the enquiry is purely objective and the only question is
whether, as a matter of purely objective inference, the injury is
sufficient in the ordinary course of nature to cause death. No one
has a licence to run around inflicting injuries that are sufficient to
cause death in the ordinary course of nature and claim that they are
not guilty of murder. If they inflict injuries of that kind, they must face
the consequences; and they can only escape if it can be shown, or
reasonably deduced that the injury was accidental or otherwise
unintentional.”
34. As can be seen from the above discussion, in the case in
our hand, the prosecution has been able to prove the existence of
all the above mentioned elements, except the fourth element. The
prosecution has been able to prove beyond all reasonable doubt
that the nature of injuries sustained by the deceased were
grievous, that the injuries were caused by sharp cutting, pointed
weapon, that in furtherance of the common intention of them all
the accused inflicted the said bodily injuries to the deceased and
that, the injuries sustained by the deceased were not accidental or
unintentional, or that the accused intended to inflict some other
kind of injuries to the deceased. But, In view of the categorical
statement of the PW8 Dr Deepak Ch. Das, the medical officer who
had conducted the post mortem examination on dead body, that
an injury on paritorium cannot ordinarily be itself a cause of death,
it cannot be safely held that the injuries were sufficient in the
ordinary course of nature to cause the death of the deceased
Gautam Kalita.
35. In view of the above, the accused cannot be held guilty of
committing murder of Gautam Kalita, which is an offence punishable
under section 302 IPC, but, for the same, they must be held guilty of
committing culpable homicide not amounting to murder, which is an
offence punishable under section 304 read with section 34 IPC.
36. In the case of Jagtar Singh v. State of Punjab, reported in
MANU/SC/0105/1983 : (1983) 2 SCC 342, the Hon’ble Supreme
Court has held that, “ the accused in the spur of the moment inflicted
a knife blow in the chest of the deceased. The injury proved to be
fatal. The doctor opined that the injury was sufficient in the ordinary
course of nature to cause death. This Court observed that the
17
quarrel was of a trivial nature and even in such a trivial quarrel the
appellant wielded a weapon like a knife and landed a blow in the
chest. In these circumstances, it is a permissible inference that the
appellant at least could be imputed with knowledge that he was
likely to cause an injury which was likely to cause death. This Court
altered the conviction of the appellant from section 302 IPC to
section 304 Part II IPC and sentenced the accused to suffer
rigorous imprisonment for five years. Likewise, in the case in our
hand also, the accused inflicted the fatal injuries to the deceased
Gautam Kalita after a trivial quarrel over some monetary
transactions between them but, the accused did not inflict the
injuries in the spur of the moment; and also committed the crime in a
pre-planned manner. Therefore, as Gautam Kalita succumbed to the
said injuries, the accused must be held guilty of committing an
offence punishable under section under section 304 read with
section 34 IPC.
37. Section 304 IPC reads as under:
“304. Punishment for culpable homicide not amounting to murder: -
Whoever commits culpable homicide not amounting to
murder shall be punished with imprisonment for life, or imprisonment
of either description for a term which may extend to ten years, and
shall also be liable to fine, if the act by which the death is caused is
done with the intention of causing death, or of causing such bodily
injury as is likely to cause death, or with imprisonment of either
description for a term which may extend to ten years, or with fine, or
with both, if the act is done with the knowledge that it is likely to
cause death, but without any intention to cause death, or to cause
such bodily injury as is likely to cause death.”
38. Section 34 IPC reads as follows:-
“34. Acts done by several persons in furtherance of common
intention:- When a criminal act is done by several persons in
furtherance of the common intention of all, each of such persons is
liable for that act in the same manner as if it were done by him
alone.”
39. In the case of Mrinal Das and Ors. Vs. The State of Tripura AIR 2011 SC 3753, reported in, the Hon'ble Supreme Court has
18
held that, the reading of the section 34 IPC makes it clear that the
burden lies on prosecution to prove that the actual participation of
more than one person for commission of criminal act was done in
furtherance of common intention at a prior concept. Further, where
the evidence did not establish that particular accused has dealt blow
the liability would devolve on others also who were involved with
common intention and such conviction in those cases are not
sustainable
40. In the case of Vikas and Ors.V: State of Maharashtra, reported in (2008) 2 SCC 516, the Hon'ble Supreme Court had
upheld conviction of the accused when even the father of the
deceased turned hostile to the prosecution case. The hon'ble
Supreme Court has held that having heard the learned Counsel
for the parties, in our considered opinion, both the courts were
right in convicting the appellants for offences punishable
under Sections 302 and 342 read with Section 34, IPC. It is no
doubt true that PW 1, Laxman Pingale, father of deceased Rekha
did not support the prosecution.
41. In the case of Jai Bhagwan and Ors. v. State of Haryana, reported in (1999) 3 SCC 102., the Huon'ble Supreme Court had
held as under:
“10. To apply Section 34 IPC apart from the fact that there should be
two or more accused, two factors must be established: (i) common
intention and (ii) participation of the accused in the commission of
an offence. If a common intention is proved but no overt act is
attributed to the individual accused, Section 34 will be attracted as
essentially it involves vicarious liability but if participation of the
accused in the crime is proved and a common intention is
absent, Section 34 cannot be invoked. In every case, it is not
possible to have direct evidence of a common intention. It has to be
inferred from the facts and circumstances of each case.”
The facts of the present case examined in light of the above
principles do not leave any doubt that all the accused had a
common intention in commission of this brutal crime. Each one of
them actually participated in the crime.
42. In the case in our hand, as can be seen from the discussion
made above and the evidence of the PW2, when the PW2, PW4 and
19
the deceased Gautam Kalita reached near the accused, they
surrounded them and the accused Sankar Sarma caught held of
Gautam Kalita by his neck, the other accused hold his hand and the
accused Rajib Hussain inflicted the blows by means of a dagger.
Therefore, the attack was a premeditated one and as all the accused
actually surrounded and caught hold of the deceased Gautam Kalita
for the accused Rajib Hussain to assault him by means of the
dagger, all the accused did share a common intention to attack the
deceased by means of the dagger. They also did not attack the
deceased Gautam Kalita by any other means. Therefore, they can
be held guilty of the committing of the alleged crime without even the
aid of Section 34 IPC as they all actually took part in the alleged
attack. Therefore, the point is decided in the affirmative.
43. The learned counsel Mr. R.R. Baishya argued that at the
time of commission of the alleged crime the accused Hemen
Malakar was below 18 years of age and hence, he was a juvenile in
conflict with law. Therefore, he cannot be tried by this court and
should be forwarded to the Juvenile Justice Board. The learned
counsel has submitted that for deciding the juvenility, the evidence
adduced by the defence in this regard may be looked into. The
defence examined the then Secretary, Board of Secondary
Education, Assam, namely Mr. Bhuban Chandra Konwar as DW1
and the father of the accused Hamen Malakar, namely Khargeswar
Malakar as DW2, to prove the same. The defence exhibited the
original certificate of the High School Leaving Certificate
Examination of the accused as exhibit-1 and the Marksheet Roll
Sheets of the High School Leaving Certificate examination, 1994 as
exhibit-2. By comparing with the original registers, the DW1 has
stated that the same are genuine certificates. The exhibit-1 shows
that the date of birth of the accused Hemen Malakar is 1.03.1978.
Therefore, on the date of the commission of the alleged crime on
22.12.1994, his age was 16 years, 9 months, 22 days.
Section 2(l) of the Juvenile Justice (Care and Protection of
Children) Act, 2000, define a "juvenile in conflict with law" as a
"juvenile who is alleged to have committed an offence and has not
completed 18 years of age as on the date of commission of such
offence". The Legislature brought Amendment Act 33/2006 proviso
and explanation in Section 20 to set at rest doubts that have arisen
with regard to the applicability of the Act to the cases pending on
20
01.04.2001, where a juvenile, who was below 18 years of age at the
time of commission of the offence, was involved. The explanation to
Section 20 which was added in 2006 makes it clear that in all
pending cases, which would include not only trials but even
subsequent proceedings by way of revision or appeal, the
determination of juvenility of a juvenile would be in terms of Clause
(l) of Section 2, even if juvenile ceased to be a juvenile on or before
01.04.2001, when the Act came into force and the provisions of the
Act would apply as if the said provision had been in force for all
purposes and for all material times when the alleged offence was
committed. As such, on the date of the commission of the alleged
offence on 22.12.1994, the accused Hamen Malakar was a juvenile
in conflict with law.
44. The above view is fortified by the decision of the Hon’ble
Supreme Court rendered in the case of Subodh Nath and Anr Vs. State of Tripura, reported in (2013) 4 SCC 122. In the said case,
the Hon’ble Supreme Court has held that, “We have considered the
submissions of the learned Counsel for the parties with regard to the
appeal of the Appellant No. 2 and we find that the High Court has
held in Para 28 of the impugned judgment that Paritosh (Appellant
No. 2) is satisfactorily shown to be 16 years of age at the time of the
alleged occurrence, i.e., on 09.10.1998, and he was not a juvenile
under the 1986 Act. The questions that we have to decide in the
appeal of the Appellant No. 2 are whether the Appellant No. 2 was
entitled to claim that he was a juvenile as defined in the 2000 Act,
and whether his claim to juvenility has to be decided in accordance
with the provisions of the 2000 Act, as amended from time to time
and the rules made thereunder. Sections 7A and 20 of the 2000 Act,
which are relevant for deciding these questions are quoted herein
below:
Section 7A. Procedure to be followed when claim of
juvenility is raised before any court.- (1) Whenever a claim of
juvenility is raised before any court or a court is of the opinion that
an accused person was a juvenile on the date of commission of
the offence, the court shall make an inquiry, take such evidence as
may be necessary (but not an affidavit) so as to determine the age
of such person, and shall record a finding whether the person is a
juvenile or a child or not, stating his age as nearly as may be:
21
Provided that a claim of juvenility may be raised before any
court and it shall be recognised at any stage, even after final
disposal of the case, and such claim shall be determined in terms
of the provisions contained in this Act and the rules made
thereunder, even if the juvenile has ceased to be so on or before
the date of commencement of this Act.
(2) If the court finds a person to be a juvenile on the date of
commission of the offence under Sub-section (1), it shall forward
the juvenile to the Board for passing appropriate orders and the
sentence, if any, passed by a court shall be deemed to have no
effect.
Section 20. Special provision in respect of pending cases.-
Notwithstanding anything contained in this Act, all proceedings in
respect of a juvenile pending in any court in any area on the date
on which this Act comes into force in that area, shall be continued
in that court as if this Act had not been passed and if the court
finds that the juvenile has committed an offence, it shall record
such finding and instead of passing any sentence in respect of the
juvenile, forward the juvenile to the Board which shall pass orders
in respect of that juvenile in accordance with the provisions of this
Act as if it had been satisfied on inquiry under this Act that a
juvenile has committed the offence.
Provided that the Board may, for any adequate and special
reason to be mentioned in the order, review the case and pass
appropriate order in the interest of such juvenile.
Explanation.-- In all pending cases including trial, revision,
appeal or any other criminal proceedings in respect of a juvenile in
conflict with law, in any court, the determination of juvenility of
such a juvenile shall be in terms of Clause (1) of Section 2, even if
the juvenile ceases to be so on or before the date of
commencement of this Act and the provisions of this Act shall
apply as if the said provisions had been in force, for all purposes
and at all material times when the alleged offence was committed.
Section 7A and the proviso and the Explanation in the
aforesaid Section 20 quoted above were inserted by the
Amendment Act of 2006, w.e.f. 22.08.2006 and before the
insertion of the Section 7A and proviso and the Explanation in
22
Section 20, this Court delivered the judgment in Pratap Singh v.
State of Jharkhand and Anr. (supra) on 12.02.2005 cited by Mr.
Biswas. The judgment of this Court in Pratap Singh v. State of
Jharkhand and Anr. (supra) therefore is of no assistance to decide
this matter. After the insertion of Section 7A and the proviso and
explanation in Section 20 in the 2000 Act, this Court delivered the
judgment in Hari Ram v. State of Rajasthan and Anr. (supra). The
facts of this case were that the accused committed the offences
punishable under Sections 148, 302, 149, 325 /1 49 and323 /149 of
the Indian Penal Code on 30.11.1998. The date of birth of the
accused was 17.10.1982. The medical examination of the accused
conducted by the Medical Board indicated his age to be between
16-17 years when he committed the offence on 30.11.1998. The
High Court held that on the date of the incident the accused was
about 16 years of age and was not a juvenile under the 2000 Act
and the provisions of 2000 Act were, therefore, not applicable to
him. This Court set aside the order of the High Court and held that
the accused had not attained the age of 18 years on the date of
the commission of the offence and was entitled to the benefit of
the 2000 Act, as if the provisions of Section 2(k) thereof had
always been in existence even during the operation of the 1986
Act by virtue of Section 20 of the 2000 Act as amended by the
Amendment Act of 2006 and accordingly remitted the case of the
accused to the Juvenile Justice Board, Ajmer, for disposal in
accordance with law. Considering the aforesaid judgment of this
Court in Hari Ram v. State of Rajasthan and Anr. (supra) and the
provisions of Section7A and 20 of the 2000 Act and considering
that the Appellant No. 2 is below 18 years of age as per his birth
certificate, the impugned judgment of the High Court qua the
Appellant No. 2 will have to be set aside and the case will have to
be remitted to the concerned Juvenile Justice Board, of North
Tripura district for disposal of his case in accordance with the
provisions of the said Act.”
Section 2(l) defines a "juvenile in conflict with law" as a
"juvenile who is alleged to have committed an offence and has not
completed 18 years of age as on the date of commission of such
offence"
23
The explanation to Section 20 which was added in 2006
makes it clear that in all pending cases, which would include not
only trials but even subsequent proceedings by way of revision or
appeal, the determination of juvenility of a juvenile would be in
terms of Clause (l) of Section 2, even if juvenile ceased to be
a juvenile on or before 01.04.2001, when the Act came into force
and the provisions of the Act would apply as if the said provision
had been in force for all purposes and for all material times when
the alleged offence was committed. Section 20 enables the Court
to consider and determine the juvenility of a person even after
conviction by the regular court and also empowers the court, while
maintaining the conviction, to set aside the sentence imposed and
forward the case to the Board concerned for passing sentence in
accordance with the provisions of the Act.
45. Therefore, the juvenile in conflict with law, namely Hemen
Malakar, has to be forwarded to the learned Principal Magistrate,
Juvenile Justice Board, Kamrup, Guwahati, for placing his case
before the Juvenile Justice Board, and the Board shall be required
to pass appropriate orders in respect of him in accordance with the
provisions of the Juvenile Justice (Care and Protection of Children)
Act, 2000, as if it had been satisfied on inquiry under this Act that
the juvenile has committed the offence. The Board may, for any
adequate and special reason to be mentioned in the order, review
the case and pass appropriate order in the interest of the juvenile.
46. In the result, from the facts and circumstances of the case and
above discussion, I hold that the prosecution has succeeded in
bringing home the charge under section 304 Part-II, read with
Section 34 IPC against accused Zakir Hussain, Sankar Sharma,
Pranjal Das @ Baba, Rubul Ali @ Bablu Ali, Hemen Malakar and
Arup Das beyond all reasonable doubt, but has failed to bring home
the charge under section 302 read with Section 34 IPC against
them. Though, the accused have not been charged with committing
an offence under Section 304 IPC, as the same is a minor offence
than the offence under section 302 IPC, for which they have been
charged with, as per the provisions of section 222 Cr.P.C., they may
be convicted for the minor offence. Therefore, I hold all the accused
guilty of committing an offence punishable under section 304 Part-II
24
read with section 34 IPC and convict them under the said section of
law.
47. In the above facts and circumstances of the case, I do not
think it proper to extend to the accused the benefit of the
ameliorative relief as envisaged under section 4 of the Probation of
Offenders Act. Because, for committing culpable homicide in a pre-
planned manner, though the same may not amount to murder, one
should not get the benefit of the ameliorative relief as envisaged
under the Probation of Offenders Act.
48. Heard the convicted accused on the question of sentence.
They have pleaded leniency in awarding the punishment on the
ground have already undergone the harassment and agony of this
trial for about two decades. . Hence, I deem it proper to punish the
accused leniently.
O R D E R
49. Considering the entire facts and circumstances of the case, I
sentence the accused (1) Zakir Hussain, (2) Shankar Sharma, (3)
Pranjal Das @ Baba, (4) Rubul Ali @ Bablu Ali (5) Arup Das and to
undergo rigorous imprisonment for three years (each), and to pay a
fine of Rs. 10,000/- (Rupees ten thousand) only, (each) in default to
undergo simple imprisonment for one month, (each), for committing
the offence punishable under section 304, Part II, read with section
34 IPC, which, in my opinion, will meet the ends of justice in this
case. The period of detention already undergone by the accused
during investigation and trial, if any, shall be set off from the
sentence of imprisonment.
50. Forward the Juvenile in conflict with law, namely Hamen
Malakar, along with a copy of this judgment, to the learned Principal
Magistrate, Juvenile Justice Board, Kamrup, Guwahati for placing
his case before the Juvenile Justice Board, and the Board shall
pass appropriate orders in respect of him in accordance with the
provisions of the Juvenile Justice (Care and Protection of Children)
Act, 2000, as if it had been satisfied on inquiry under this Act that
the juvenile has committed the offence. The Board may, for any
adequate and special reason to be mentioned in the order, review
the case and pass appropriate order in the interest of the juvenile.
51. Destroy the seized articles in due course of time.
25
52. Furnish a copy of the judgment to each of the convicted
accused free of cost, immediately.
53. Signed, sealed and delivered in the open Court on this the 2nd
day of April, 2014, at Guwahati.
(A.Chakravarty) Addl. Sessions Judge No.1 Kamrup (Metro) Guwahati
Dictated & corrected by me.
( A. Chakravarty )Addl. Sessions Judge, No.1 Kamrup (Metro), Guwahati
26
A P P E N D I X
1. PROSECUTION WITNESSES:
P.W.1 Sri Prahlad Mahanta
P.W.2 Sri Himanta Borah @ Simanta Borah
P.W.3 Sri Junmoni Borah
P.W.4 Sri Hemen Kalita
P.W.5 Dr. Rajib Borbora
P.W.6 Sri Subhan Chandra Baruah (I/O)
P.W. 7 Sri Sukumar Sinha (I/O)
P.W. 8 Dr. Deepak Ch. Das (M/O)
2. PROSECUTION EXHIBITS:
Exhibit-1 Inquest Report.
Exhibit-2 Ejahar
Exhibit-3 F.I.R.
Exhibit-4 Site Plan
Exhibit-5 Command Certificate
Exhibit-6 Dead body Challan
Exhibit-7 Seizure List
Exhibit-8 Charge sheet
3. DEFENCE WITNESSES:
DW-1 Sri Bhuban Ch. Konwar
DW-2 Sri Khargeswar Malakar
4. MATERIAL EXHIBITS:
Material Exhibit- 1 Long Pant (Trouser)
Material Exhibit-2 Under Wear.
(A. Chakravarty)
Addl. Sessions Judge No. I Kamrup (Metro), Guwahati.
:I
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