REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1905 OF 2009

SAMSUL HAQUE            ….Appellant

VERSUS

THE STATE OF ASSAM         ….Respondent

WITH

CRIMINAL APPEAL NO. 246 OF 2011

J U D G M E N T

SANJAY KISHAN KAUL, J.

1. The incident is of 17.3.1997 at 7:00 a.m. in the morning.  Keramat

Ali Maral (the deceased) was having tea at the tea stall known as Kalia

Hotel.  It is alleged that Abdul Hai, Abdul Rashid, Imdadul Islam, Rahul

Amin,  Mofizuddin Islam and Abdul Rahim Faruki,  being the first  six

accused entered the stall and all of a sudden accused Nos.2 & 3 fired at

1

Keramat  Ali  with  a  pistol,  while  the  other  accused  injured  him  by

stabbing and hacking with daggers, swords, etc.  Keramat Ali is stated to

have died on the spot.  The son of Keramat Ali, Nazrul Islam (PW-3)

lodged the FIR, stating that he was present at the site along with other

witnesses, but when they offered resistance, they were threatened with

pistols.  To save their life, they ran away from the site.  Insofar as accused

Nos.7, 8 & 9 are concerned, it is stated that “further it may be mentioned

that  the incident took place at  the instance and instigation of  accused

Nos.7, 8 and 9.”

2. On the investigation being completed, a charge-sheet was filed and

charges  were  framed by the Sessions  Judge under  Sections  147,  148,

302/149  and  302  of  the  IPC against  all.   Accused  Nos.7  to  9  faced

charges  under  Sections  302/109  of  the  IPC.   In  the  course  of  trial,

accused No.4, Rahul Amin, absconded.  Accused No.1, Abdul Hai, died/

was allegedly murdered during the course of trial.  On completion of trial

the  Sessions  Judge,  Morigaon found that  accused No.1 was the main

culprit who had killed the deceased, Keramat Ali.  The trial court also

found that the guilt of accused Nos.5 & 6 was also established beyond

reasonable doubt.

2

3. The convicted accused filed an appeal  before the Gauhati  High

Court  and so  did  the State  of  Assam  qua the accused who had been

acquitted.   The appeal  of the convicted accused was dismissed by the

High Court and the Special Leave Petition (‘SLP’) filed against the same

was also dismissed and, thus, that matter attained finality.

4. The impugned judgment dated 12.2.2009 deals with the appeal of

the State and has reversed the judgment of the trial court convicting the

five accused.

5. Accused No.9, Samsul Haque has filed Crl. Appeal No.1905/2009,

while Abdul Rashid (accused No.2) and Imdadul Islam (accused No.3)

filed Crl. Appeal No.246/2011.  It is these three accused who are before

us.

6. We have heard Mr. R.K. Dash, learned Senior Counsel for accused

No.9,  Mr.  Bijan  Ghosh,  learned  counsel  for  accused  Nos.2  &  3  and

learned counsel for the State, Mr. Debojit Borkakati who took us through

the record before us.  We have also perused the trial court record.

3

7. We  would  first  deal  with  the  witnesses  produced  by  the

prosecution to prove their case.  Four witnesses were projected as eye-

witnesses to the occurrence, viz., Taher Ali (PW-1); Nazrul Islam (PW-3),

who is the son of the deceased and the informant; Sorhab Ali (PW-4),

brother of  the deceased; Mozammil Hussain (PW-6),  son of  the elder

brother of the deceased.  While three of the witnesses are relatives, PW-1

is an independent witness.  It may be noted that Mr. Dilip Modak, owner

of the hotel,  or  any other independent  witness present  at  the place of

occurrence was not examined.  Mr. Somnath Bora, the IO was produced

as  PW-7.   It  may  also  be  noted  that  the  defence  examined only  one

witness, i.e. Siraj Ali (DW-1), who was at the place of the occurrence as

recognised by the prosecution.

8. Learned  Senior  Counsel  for  accused  No.9  contended  that  the

complainant in the complaint itself made a very vague statement that “the

incident took place at the instance and instigation of” the said accused

and two others.  Nothing more was said as to how it was at the instance

and instigation of these three accused.

4

9. The second limb of his submission was that three of the witnesses,

PW-3, PW-4 and PW-6 were interested and inimical witnesses inasmuch

as PW-3, the son of PW-4 and PW-6 were accused in the murder case of

the main accused, accused No.1, Abdul Hai.  The testimony of these three

witnesses  was  stated  to  be  full  of  exaggerations,  embellishments  and

inconsistencies.  An important aspect emphasised in this behalf is that the

version given by PW-3 in the complaint, as recorded in the FIR, is at

variance with the narration of the incident when the said witness entered

the witness box.  Thus, while on the one hand in the complaint it was

alleged that the incident happened at the instance and instigation of the

appellant and two other accused, in the testimony before the court it has

been stated that these three persons ordered the other accused to catch

hold of his father, the deceased, whereafter accused Abdul Rashid, who is

accused No.2 shot at the deceased with a pistol while accused No.1 hit

him in the chest, hands and legs with a sword.  The testimony of PW-4

and  PW-6  states  that  accused  No.9  and  two  others  asked  other

accomplices to hit and kill the deceased.

5

10. The aforesaid testimony, it was submitted before us, has to be read

in the context of the testimony of the only independent witness, i.e., PW-

1,  who did  not  implicate  the  appellant  in  the  crime.   In  fact,  in  his

testimony he has specifically stated that he did not see accused No.8 and

accused No.9 either inside or outside the hotel.  Learned Senior Counsel

also submitted that a reading of the complaint, resulting in the FIR would

show that the appellant had not come to the place of occurrence along

with  the  others.   DW-1,  who was present  at  the place  of  occurrence,

according to the prosecution,  stated that  accused No.1 and two others

committed the crime, but he had not seen any one of the family members

of the deceased at the place of the occurrence.  In fact, the suggestion in

the cross-examination of  the said witness by the prosecution was that

accused  No.7  had  given  orders  to  assault  the  deceased,  but  that

suggestion had been denied by the witness.

11. The third limb of the submission of the learned Senior Counsel is

based on the statement of accused No.9, recorded under Section 313 of

the Cr.P.C.  It was argued that the questions asked did not really put the

case  of  the  prosecution  to  the  accused as  was  mandatory.   Only  two

6

questions were put in the said statement, which are as under:

“Question: PW4 Sohrab Ali has averred in evidence that at about  7 a.m. 17.3.97, you said, “Kill Keramat Ali.”  What is your reply?

Ans: I was not there in the place of occurrence.  My house  is at a distance of 4 or 5 kilometers from there.

Question: PW6 has stated that you asked the other accused to  kill Keramat.  What do you say?

Ans: No I was not present at the place of occurrence.  A  civil suit is pending over the complainant’s purchasing a plot of  land.  I was one witness to (the execution of) the sale deed.  Out of  that grudge they filed a false case against me.”

12. The case of PW-3 was, thus, not even put to the accused.

13. In the aforesaid context learned Senior Counsel has referred to the

judgment  of  this  Court  in  Sharad  Birdichand  Sarda  v.  State  of

Maharashtra1 to  contend that  if  the  circumstances  are  not  put  to  the

accused in his statement under Section 313 of the Cr.P.C., they must be

completely  excluded  from  consideration  because  the  accused  did  not

have any chance to explain them.  This is stated to be the consistent view

of this Court starting from 1953 in the case of Hate Singh Bhagat Singh

1 (1984) 4 SCC 116

7

v. State of Madhya Bharat2.  Learned Senior Counsel also referred to the

judgment in Sujit Biswas v. State of Assam3 for the proposition that the

very purpose of examining the accused persons under Section 313 of the

Cr.P.C. is to meet the requirement of the principles of natural justice, i.e.,

audi alteram partem.  The accused, thus, must be given an opportunity to

explain the incriminating material that has surfaced against him and the

circumstances which are not put to the accused in his examination under

Section  313  of  the  Cr.P.C.  cannot  be  used  against  him  and  must  be

excluded from consideration.

14. The fourth limb of the submission of the learned Senior Counsel

arose  from  the  acquittal  of  accused  No.9  by  the  trial  court  and  the

conviction on reversal of acquittal in appeal.  Thus, the plea was that the

principles of such reversal require that the view of the trial court should

be respected  unless and until  the views are  such as  were perverse  or

otherwise  unsustainable.   Ordinarily,  the judgment  of  acquittal,  where

two views are possible, should not be set aside even if the view formed

2AIR 1953 SC 468 3 (2013) 12 SCC 406

8

by the appellate court may be a more probable one.4

15. The  last  submission  of  the  learned  Senior  Counsel,  possibly

because  it  is  the  weakest  one,  was  that  the  ingredients  of  common

intention under Section 34 of the IPC and abetment under Section 107 of

the IPC are distinct and separate.  The principle of constructive liability,

enunciated in Section 34 of the IPC does not create a substantive offence,

unlike Section 107 of the IPC, which is an independent offence.  It was,

thus, submitted that a person charged with Section 109 of the IPC (the

punishment provision for Section 107 of the IPC) cannot be convicted for

the main offence under Section 34 of the IPC.  To advance this plea,

reliance was placed on Babu v. State of Tamil Nadu5.  However, in the

factual matrix of that case the person was charged under Section 34 of the

IPC and not under Section 109 of the IPC.  The observations made in that

judgment, thus, have to be read in that context since substantive offence

as per Section 107 with punishment under Section 109 of the IPC was not

an aspect which the accused was charged with.  The factual matrix in the

4 Sunil Kumar Sambhudayal Gupta (Dr.) v. State of Maharashtra (2010) 13 SCC 657 5 (2013) 8 SCC 60

9

present case is the opposite where the plea is that there is no charge under

Section 34 of the IPC but charge of abetment has been laid under Section

109.

16. The aforesaid last plea can be dealt with at this stage itself as the

issue is no more  res integra in view of the judgment of this Court in

State of Orissa v. Arjun Das Agarwal & Anr.6 opining that the settled

position of law is that Section 34 of the IPC does not create a distinct

offence and it is with the participation of the accused that the intention of

committing  the  crime  is  established  when  Section  34  of  the  IPC  is

attracted.  To rope in a person with the aid of Section 34 of the IPC, the

prosecution has to prove that the criminal  act  was done by the actual

participation  of  more  than  one  person  and  that  act  was  done  in

furtherance of a common intention of all engaged in prior concert.

17. In view of the aforesaid, the last plea of the learned counsel is only

stated to be rejected.

18. On examination of the earlier pleas advanced by learned Senior

6 AIR 1999 SC 3229

10

Counsel on behalf of accused No.9, we find merit in the same.

19. PW-3 in his complaint did state that the incident took place at the

instance and instigation of accused No.9 along with accused Nos.7 & 8.

20. However,  in his deposition it  has been stated that these persons

asked the other accused to catch hold of the deceased.  This by itself, in

our view, would not be fatal for the case of the prosecution.  Similarly,

there is some variation between what exactly these three persons stated,

as available from the testimonies of even PW-4 and PW-6.  However, the

crucial aspect is that PW-1, the only independent witness, does not even

implicate accused No.9, much less assign any role to him.  He has stated

that he had not even seen accused No.9, even though he was the person

who was at the place of occurrence.  DW-1, who was not produced as a

witness by the prosecution, though was stated to be present at the place of

occurrence, was examined by the defence and deposed against the main

accused (accused No.1) and others, while not assigning even the factum

of presence to accused No.9.  Interestingly, even when the prosecution

sought to cross-examine the said witness, the case of the prosecution was

put as if only accused No.7 ordered the other accused persons to assault

11

the deceased.  Had accused No.9 played a role, that would logically have

been put to DW-1 by the prosecution.

21. The most vital aspect, in our view, and what drives the nail in the

coffin in the case of the prosecution is the manner in which the court put

the case to accused No.9, and the statement recorded under Section 313

of the Cr.P.C.  To say the least it is perfunctory.

22. It is trite to say that, in view of the judgments referred to by the

learned Senior Counsel, aforesaid, the incriminating material is to be put

to the accused so that the accused gets a fair chance to defend himself.

This is in recognition of the principles of  audi alteram partem.  Apart

from the judgments referred to aforesaid by the learned Senior Counsel,

we may usefully refer to the judgment of this Court in Asraf Ali v. State

of Assam7.  The relevant observations are in the following paragraphs:

“21. Section 313 of the Code casts a duty on the Court to put in an enquiry  or  trial  questions  to  the  accused  for  the  purpose  of enabling him to explain any of the circumstances appearing in the evidence against him. It follows as necessary corollary therefrom

7 (2008) 16 SCC 328

12

that each material circumstance appearing in the evidence against the accused is required to be put to him specifically, distinctly and separately and failure to do so amounts to a serious irregularity vitiating trial, if it is shown that the accused was prejudiced.

22. The object of Section 313 of the Code is to establish a direct dialogue  between  the  Court  and  the  accused.  If  a  point  in  the evidence is important against  the accused,  and the conviction is intended to be based upon it, it is right and proper that the accused should be questioned about the matter and be given an opportunity of explaining it. Where no specific question has been put by the trial Court on an inculpatory material in the prosecution evidence, it would vitiate the trial. Of course, all these are subject to rider whether they have caused miscarriage of justice or prejudice. This Court also expressed similar view in S. Harnam Singh v. The State (AIR  1976  SC  2140),  while  dealing  with  Section  342  of  the Criminal Procedure Code, 1898 (corresponding to Section 313 of the Code). Non- indication of inculpatory material in its relevant facets by the trial Court to the accused adds to vulnerability of the prosecution case. Recording of a statement of the accused under Section 313 is not a purposeless exercise.”

23. While making the aforesaid observations, this Court also referred

to its  earlier  judgment of  the three Judge Bench in  Shivaji  Sahabrao

Bobade v. State of Maharashtra8, which considered the fall out of the

omission  to  put  to  the  accused  a  question  on  a  vital  circumstance

appearing against him in the prosecution evidence, and the requirement

8 (1973) 2 SCC 793

13

that the accused’s attention should be drawn to every inculpatory material

so as to enable him to explain it.  Ordinarily, in such a situation, such

material as not put to the accused must be eschewed.  No doubt, it is

recognised, that where there is a perfunctory examination under Section

313 of the Cr.P.C.,  the matter is capable of being remitted to the trial

court, with the direction to retry from the stage at which the prosecution

was closed9.

24. We are, however, not inclined to follow that course in the given

circumstances of this case as the inconsistencies in the testimonies also

create a doubt in the case of the prosecution  qua any role of accused

No.9.  The aforesaid being the factual matrix, the appellate court could

hardly  have  overturned  the  acquittal  of  the  trial  court  into  one  of

conviction.  The trial court took note of the close relationship of PW-3,

PW-4 & PW-6 to the deceased, as also the array of the accused and the

murder of accused No.1, to come to the conclusion that the abetment of

accused No.9, as alleged, had not been proved beyond reasonable doubt.

In fact, it is opined that there is no evidence that the said accused was

inside or outside Kalia Hotel at the time of the occurrence.  Given the

9 Shivaji Sahabrao Bobade v. State of Maharashtra (supra)

14

circumstances, while not disagreeing with the legal proposition stated in

the impugned judgment, that there is no law that the evidence of relatives

cannot be acted upon, but, with extra care and caution, the presence of

disinterested  witnesses  as  PW-1 and  DW-1 relate  another  story.   The

finding in  the  impugned order,  that  in  the  FIR filed  by PW-3 as  the

complainant,  on  the  very  date  of  the  occurrence,  setting  out  the

involvement  of  all  the  accused  as  clearly  stated,  again  cannot  be

sustained  for  the  reason  of  the  improvements  and  embellishments

between what was stated in the FIR and what came from the mouth of

PW-3 as his testimony in the court.

25. We are, thus, of the view that the prosecution has not been able to

establish  a  case  against  accused  No.9,  much  less  beyond  reasonable

doubt.

26. Now, turning to the case of accused Nos.2 & 3, who are still in

custody, unlike accused No.9, who has since been enlarged on bail by this

Court.

27. Learned counsel sought to adopt the arguments advanced on behalf

15

of accused No.9, but then the same would not be of much use as the case

of accused No.9 is quite different from the case against accused Nos.2 &

3.

28. A perusal of the order of the trial court would show that what has

weighed  in  acquitting  these  two  accused  was  the  fact  that  in  the

testimony  of  the  Doctor  (PW-5),  who  performed  the  post-mortem

examination  on  the  body of  the  deceased,  a  number  of  injuries  were

found, caused by sharp pointed objects.  In the cross-examination PW-5

has specifically stated that none of the injuries is a gun-shot injury.  Thus,

the medical evidence suggests the use of daggers and a sword.  The plea

of the Public Prosecutor was that the gun used by these two accused (as

according to the role assigned to them) may have been used only to scare

away the persons.  However, there has been no seizure of arms.  Accused

No.1,  the  main  culprit,  was  subsequently  murdered,  and  the  related

witnesses in the present case are the accused.  PW-6 also did not see the

firing of the gun, though he claims to have heard the gun-shots though

PW-3 and PW-4 state that they saw the firing.  The anomaly is that all the

accused were standing together.

16

29. On a question put by the court, whether any bullets or bullet marks

were found at the site, learned counsel for the State fairly stated in the

negative.

30. The  question,  which,  thus,  arises  is  that  whether,  within  the

parameters required for reversal of an order of acquittal, the needful is

met in the present case.

31. The impugned judgment is, once again, predicated on a reasoning

placing reliance on the testimony of the related witnesses.  The reason to

treat  the  same  with  some  caution  has  already  been  set  out  by  us

hereinbefore.  The testimony of PW-6, that he saw the gun being fired,

but could not make out whether a bullet hit the deceased or not has been

taken into account, but, in the context of the overall testimony of the eye-

witnesses, the story set forth by the prosecution and the witnesses was

found to be believable by the High Court.  However, this story does not

deal  with the aforesaid aspects noted by the trial  court,  i.e.,  no bullet

injury, the weapon not being recovered, no bullets or bullet marks being

found  at  the  place  of  occurrence  and  the  inconsistencies  in  the

17

testimonies of the witnesses.  The trial court rightly observed that it was

accused  No.1  who  was  the  main  accused,  who  was  subsequently

murdered.

32. We may, however,  note that insofar as the statement of accused

No.2, under Section 313 of the Cr.P.C. is concerned, the testimonies of

PW-3, PW-4 and PW-6 all have been put to him but the said accused

claimed absence from the place of the occurrence.  As far as accused

No.3  is  concerned,  once  again,  the  testimonies  of  all  the  three  eye-

witnesses have been put to him, but the role sought to be assigned to him

is stated to be a hit  with the dagger,  and not the role of firing at the

accused as set out in the FIR.

33. The subsequent testimonies, however, sought to assign a different

role than the one assigned in the FIR, bringing about an inconsistency.

The view taken by the trial court is, at least, a plausible view though that

may not  be  the  only  plausible  view or  if  one  may  say  even  the  less

probable one.

18

34. We are, thus, of the considered opinion that the prosecution has not

been able to prove the case beyond reasonable doubt against these two

accused, and they must get the benefit of doubt and consequently have to

be acquitted.

35. The result of the aforesaid findings is that Samsul Haque, accused

No.9 is entitled to a clean acquittal.  He is already on bail and thus, the

bail bonds stand discharged.  Abdul Rashid & Imdadul Islam, accused

Nos.2  &  3  respectively,  are  entitled  to  the  benefit  of  doubt  and  are

consequently acquitted.  The said accused may be released forthwith.

36. The appeals are accordingly allowed, leaving the parties to bear

their own costs.

...……………………………J. [Sanjay Kishan Kaul]

...……………………………J. [K.M. Joseph]

New Delhi. August 26, 2019.

19