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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

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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

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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

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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