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REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1062 OF 2007

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

VERSUS

STATE OF ASSAM    .........RESPONDENT

J U D G M E N T

ASHOK BHUSHAN, J   .

1. This appeal has been filed by eight accused who

have been convicted under Section 302 read with Section

149 IPC and sentenced to under go life imprisonment by

trial court as well as by High Court.  The prosecution

case is that on 12.11.1993 in the morning at about 8.00

AM twelve accused persons have attacked complainant,

his father Samsuddin, his brother Abdul Rahman and his

mother­in­law. Accused were armed with dao, lathi,

jathi, dagger etc.  After injuring Samsuddin and Abdul

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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

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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

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above will run concurrently.”

5. It is also relevant to note that with regard to

the incident on 12.11.1993 a cross­case was also

registered being Case No. 978/93 in which Samsuddin and

three others were accused. In the cross­case, it was

alleged that injury was inflicted by  Samsuddin and his

sons in which Abdul Sattar received injuries.

6. On cross­case 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 cross­case.  

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

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five names of the accused whereas charge sheet was

submitted against twelve accused. It is submitted that

Afazuddin claims to be eye­witness, hence, there was no

reason for not mentioning the names of all the accused

in the FIR and non­mention 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

eye­witnesses makes their evidence untrustworthy.  The

trial court ought to have taken note of such

contradiction and discarded the evidence of

eye­witneses.

10. Learned counsel for the State refuting the

submission of the learned counsel for the appellants

contends that mere non­mention of other accused in the

FIR cannot mean that other accused could not have been

charge­sheeted after investigation.   It is submitted

that contradiction pointed out in the statement of

witnesses does not in any manner shake their evidence.

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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 eye­witness 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

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column of name and residence of accused following is

mentioned:  

“Name and residence of accused:­

1) Sekandar Ali, S/O Amiruddin, 2) Abu Taher, S/O Do. 3) A. Sattar, S/O Eman Ali 4) Tazor Ali, S/O Do. 5)  Akkash Ali, S/O. Amiruddin

and 7 others.  

All are Vill. Durabandhi Gaon,  P. S. Moirabari, Dist. Morigaon (Assam).”

14. Further, FIR mentions written report received from

complainant Afazuddin. The written report indicates

that Afazuddin has put his thumb impression on the FIR.

The Afazuddin was examined as PW. 2. In the

cross­examination, 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

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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 charge­sheet 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 charge­sheeted, can

not be accepted.   Secondly, in his cross­examination

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

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seven other accused were mentioned in the FIR is

inconsequential and on this ground, there is no

substance in the submission of the learned counsel for

the appellants that since names of other accused were

not mentioned in the FIR except five names, others

could not have been convicted.

16. Now, we come to the next submission of the learned

counsel for the appellant that there are contradiction

in the statements made by witnesses before the Court as

compared to the statements made before the Police under

Section 161 Cr. P.C.

17. The present is a case where incident took place in

adjoining way/courtyard of the residential house of

informant in the morning at about 8.00 AM. The presence

of  the family members in the  house  at Courtyard of

informant was natural.   Three injured witnesses were

examined by   Dr. Rafiqul Islam who had appeared, as

PW.11 and proved the injuries. The injuries were noted

by Rafiqul Islam PW.11 inflicted on Samsuddin, Jahura

Khatun and Afazuddin.  Dr. Rafiqul Islam PW.11 stated

the following in his evidence:

"On 12.11.1993, I was M&HO­I at Moirabari C.H.C. On that day, I

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examined (1) Abdul Rahman, (2) Samsuddin, (3) Jahura Khatun, and (4) Afazuddin on police requisition and found the following:­

(1) Abdul Rahman, son of Md. Samsuddin of Village Dorabandi. The patient was referred to Nagaon Civil Hospital for further investigation and treatment.

(2) Samsuddin, son of Late Sudhir Seikh ­

Lacerated injury on scalp, size 1½” X ½” X ½”. Multiple abrasion over the forehead. Fresh and simple wounds caused by blunt object. Patient was referred to Nagaon Civil Hospital.”

(3) Jahura Khatun, wife of Ismat Ali Swelling over the right arm, size 1½” X ½” X ½”.  Laceration over the left thumb, size 1” X ½” X ½” Fresh and simple wounds caused by blunt object.

(4) Afazuddin, son of Samsuddin ­

Swelling over the right thumb. Swelling over the back.  Fresh and simple wounds caused by blunt object.”   

18. Both Samsuddin and Afazuddin have examined

themselves in the Court.  Samsuddin  examined himself

as   PW.5 and Afazuddin the informant has examined

himself as PW.2. Jahura Khatun has been examined as PW.

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9. All eye­witnesses 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 eye­witness

account.   Much emphasis has been laid down by the

learned counsel for the appellants that there are

contradictions in the statement of eye­witnesses

recorded before the Court as compared to one which was

recorded by the Police, it is submitted that several

eye­witnesses 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 eye­witnesses 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

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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 eye­witnesses. In their

statements under Section 161 Cr.P C and before the

Court also eye­witnesses proved the role of the accused

and presence of the accused. Hence, the eye­witness

account of witnesses proves the presence of the

accused. They have been rightly convicted under Section

302 read with 49 IPC.

22. Secondly, there is clear evidence of eye­witnesses

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

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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

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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 cross­case in which Samsuddin and his

sons were charge­sheeted 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

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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

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and as a consequent, they were deprived of their medical treatment and when they were taken to the hospital, it was too late for Abdul Rahman, who succumbed to his injuries at the hospital. Hence, the common object and the intention of the accused persons is apparent. ”

26. We do not find any merit in the appeal. The appeal

stands dismissed.

.................J   [A. K. SIKRI]

..................J  [ASHOK BHUSHAN]

New Delhi April 21, 2017.