FAZAR ALI & ORS.versusSTATE OF ASSAM

                             [2017] 6 S.C.R. 646



A                           FAZARALI & ORS·
                                      y

                             STATE OF ASSAM
                     (Criminal Appeal No. l 062 of 2007)
B                              APRIL21,2017
              [A. K. SIKRI AND ASHOK BHUSHAN, JJ.J
            Penal Code, 1860 - s.302 rlw s.149 - Murder - Prosecution
    case that the accused persons armed with various weapons attacked
    complainant, his father, brother and mother-in-law and after
c   inflicting injuries, did not allow the injured to be taken to hospital
    for about 3 hours - Consequently, complainants brother died -
     Trial court convicted accused-appellants ulss. 302 r/w. 149 and
    sentenced them to life imprisonment - Appeal dismissed by High
     Court - Appellants contended that complainant had mentioned name
D   of only five accused persons in FIR, whereas charge sheet was
    submitted against twelve accused and further, there were
    contradictions in evidence of eye-witnesses - Held: FIR from the
     beginning itself mentions that the number of accused persons were
     twelve, although mentions name of five persons only - During
     investigation, names of seven others had surfaced and charge sheet
E
    was submitted against twelve accused - Informant clearly mentioned
     in his cross- examination that he had told the name of other seven
    accused as well to the writer of FIR as he is illiterate - No substance
     in the plea that since other accused were not mentioned in the· FIR
    except five, others could not have been convicted - Further, all the
F    eye-witnesses, in their statements had assigned the role of all the
     accused of causing injuries - Two independent witnesses also proved ·
     the incident and role of accused - Mere fact that, there are certain
     inconsistencies with regard to the manner of causing injuries, cannot
    shake the entire evidence or make the statement of witnesses
G    unreliable - It is unreasonable to expect from a witness to give picture
    perfect report of the incident - Thus, the findings of trial court are
     based on correct appreciation of evidence.
          Dismissing the appeal, the Court
           HELD: 1. From the facts and circumstances of this case, it
H   is clear: Firstly, FIR although mentions name of only five accused
                                  646
           FAZAR ALI & ORS. v. STATE OF ASSAM                        647


but FIR clearly mentions that seven more accused persons were A
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
                                                                    B
had surfaced, the charge-sheet 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 charge-
sheeted, can not be accepted. Secondly, in his cross-examination
informant clearly mentioned that he had told the names of other
seven accused persons also to the person who had written the c
FIR but, informant being illiterate had put only thumb impression
on the FIR. Not naming other seven accused although, number
of seven other accused were mentioned in the FIR is
inconsequential and on this ground, there is no substance in the
submission of the appellants that since names of other accused D
were not mentioned in the FIR except five names, others could
not have been convicted. [Para 15) [652-D-G]
      2. All the eye-witnesses 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       E
inconsistencies with regard to the manner of causing injuries to
father and brother of complainant 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. [Para 20) [654-C]                 F
      3.1 There are two reasons for not accepting the arguments
of appellants; firstly, before the Police also the role of accused
was mentioned by eye-witnesses. In their statements under
Section 161 Cr.P C and before the Court also eye-witnesses
proved the role of the accused and presence of the accused.          G
Hence, the eye-witness account of witnesses proves the presence
of the accused. They have been rightly convicted under Section
302 read with 49 IPC. [Para 21) (654-D-E)
      3.2 Secondly, there is clear evidence of eye-witnesses that
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648            SUPREME COURT REPORTS                       [2017] 6 S.C.R.


A     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 persons
      to come out or to go for treatment. Finding to this effect has
      been recorded both by trial court and High Court. Each person
B
      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. [Para 22] [654-F-H]
            Chandrappa and Others v. State of Karnataka (2008)
c           11 sec 328 - relied on.
             3.3 It is also relevant to notice that. accused party has ·also
      filed a cross-case against the complainant, his father and brother
      under Section 325 IPC which resulted in acquittal by the trial
      court. The accused were found aggressor and after accused being
D     found present and having caused injuries which resulted in death
      of complainant's brother both the Courts below did not commit
      any error in convicting the accused under Section 302 read with
      149 IPC. [Para 23) [655-G-H]
            4. The finding of guilt recorded by trial court is based on
 E    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. [Para
      24) (656-B)
                             Case Law Reference
 F
      (2008) 11 sec 328               relied on               Para 22
            CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
      1062 of2007.
        From the Order dated 21.12.2005 of the High Court ofGauhati in
 G Criminal Appeal No. 420 of2002.
            Ms. Smita Hazarika, Adv. for the appellants.
            Debojit Borkakati and Shuvodeep · Roy, Advs. for the
      respondent.
H
             FAZAR ALI & ORS. v. STATE OF ASSAM                               649


      The Judgment of the Court was delivered by                              A
        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 B
 complainant, his father Samsuddin, his brother Abdul Rahman and his
 mother-in-law. Accused were armed with dao, lathi, jathi, dagger etc.
 After injuring Samsuddin and Abdul 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 c
 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 ofAbdul Rahman, which had the thumb impression D
 of Afazuddin whereunder names of five accused Sekendar Ali, Abu
 Taher,Abdul Sattar, Fazar Ali andAkkashAli 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.
                                                                           E
        3. I.0. on the same day of incident examined Rustam Ali,
 Afazuddin, Muslemuddin, Abdul Sattar (Son ofMafizuddin), 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 accused named Abu Taher          F
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 of99, GR No.979/
93) held all the accused guilty and convicted them to the following effect:
                                                                              G
      "15. So, in view of discussion above, 1 convict and sentence
      accused Sattar, Rafiqul, Akkash Ali, Fakaruddin, Nuruddin,
      Sekander, Molin, Idrish Ali and Fazar to undergo rigorous
      imprisonment for one year each for their offence punishable
      under Section 148 /PC and also I convict and sentence all
      these accused persons to undergo their rigorous life H
650            SUPREME COURT REPORTS                          (2017] 6 S.C.R.



A           imprisonment with a fine ofRs. 10001- each in default rigorous
            imprisonment for two months for their offence. Offence
            punishable U/s 3021149 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 Uls. 3231149 IPC. The prosecution failed
B
            to establish case punishable U/s. 148130213231149 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 above
            will run concurrently.''
c            5. It is also relevant to note that with regard to the incident on
      12.11.1993 a cross-case was also registered being Case No. 978/93 in
      which Samsuddin and three others were accused. In the cross-case, it
      was alleged that injury was inflicted by Samsuddin and his sons in which
      Abdul Sattar received injuries.
D           6. On cross-case Sessions Case No. 41199 (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
      cross-case.
             7. Accused aggrieved by the judgment, against the conviction have
 E    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 colinsel for the appellant in support of the appeal
 F    contends that in First Information Report which was lodged by Afazuddin
      son of Samsuddin and brother ofAbdul Rahman( deceased) had mentioned
      only five names of the accused whereas charge sheet was submitted
      against twelve accused. It is submitted that Afazuddin claims to be eye-
      witness, hence, there was no reason for not mentioning the names of all
 G    the accused in the FIR and non-mention 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
H
             FAZAR ALI & ORS. v. STATE OF ASSAM                             651
                    [ASHOK BHUSHAN, J.]

eye-witnesses makes their evidence untrustworthy. The trial court ought A
to have taken note of such contradiction and discarded the evidence of
eye-witneses.
       10. Learned counsel for the State refuting the submission of the
learned counsel for the appellants contends that mere non-mention of
other accused in the FIR cannot mean that other accused could not B
have been charge-sheeted after investigation. It is submitted that
contradiction pointed out in the statement of witnesses does not in any
manner shake their evidence. 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 C
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        D
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 eye-witness ought to have           E
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 column of name an.d residence of accused following   F
is mentioned:
      "Name and residence of accused:-
              !) Sekandar Ali, S/O Amiruddin,
                2) Abu Taber, S/O Do.
                                                                            G
                3) A. Sattar, S/O Eman Ali
                4) Tazor Ali, S/O Do.
                5) Akkash Ali, S/O. Amiruddin
                    and 7 others.
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652            SUPREME COURT REPORTS                          [2017] 6 S.C.R.



A                             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
 B    impression on the FIR. The Afazuddin was examined as PW. 2. In the
      cross-examination, 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 tlte ejaltar written at a /tote/ in Mairabari bus syndicate
            premises. From tltat place tlte police station is about I 001150
 c          yards away. I had not gone to the police station before having
            /tad tlte ejaltar written. I had had five accused named in tlte
            ejaltar. I had told Karim the names of seven others. Karim
            had advised me to add those names only later. He had said
            that I should go to the police station witlt him later and add
D           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
 E    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 charge-sheet 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 charge-sheeted, can not
 F
      be accepted. Secondly, in his cross-examination 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 seven other accused were mentioned
 G    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
 H    for the appellant that there are contradiction in the statements made by
             FAZAR ALI & ORS. v. STATE OF ASSAM                               653
                    [ASHOK BHUSHAN, J.]

witnesses before the Court as compared to the statements made before          A
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              B
examined by Dr. Rafiqul Islam who had appeared, as PW.11 and proved
the injuries. The injuries were noted by Rafiqul Islam PW. I I inflicted on
Samsuddin, Jahura Khatun andAfazuddin. Dr. Rafiqul Islam PW.11 stated
the following in his evidence:
      "On 12.11.1993, I was M&H0-1 at Moirabari C.H.C. On                     c
      tlrat day, I 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 D
      for further investigation and treatment.
      (2) Samsuddin, son o(Late Sudhir Seikh -
      Lacerated injury on scalp, size 11/z" X 1/z" X 1/z". Multiple
      abrasion over the forehead. Fresh and simple wounds caused
      by blunt object. Patient was referred to Nagaon Civil Hospital."        E
       (3) Jahura Khatun, wife oflsmat Ali
      Swelling over the right arm, size 11/z" X 1/z" X 1/z ".
      Laceration over the left thumb, size 1" X 1/z" X 1/z"
       Fresh and simple wounds caused by blunt object.                        F

       (4) Afazuddin, son ofSamsilddin -
      Swelling over the right thumb. Swelling over the back.
       Fresh and simple wounds caused by blunt object."
                                                                              G
      18. Both Samsuddin andAfazuddin 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. 9. All eye-witnesses have corroborated the incident
and have proved the role of accused persons in causing injuries to
Samsuddin, Abdul Rahman( deceased) and others.                                H
654            SUPREME COURT REPORTS                          [2017] 6 S.C.R.


A            19. PW.5 Samsuddin has proved the incident and the role of the
      different accused in his eye-witness account. Much emphasis has been
      laid down by the learned counsel for the appellants that there are
      contradictions in the statement of eye-witnesses recorded before the
      Court as compared to one which was recorded by the Police, it is submitted
B     that several eye-witnesses 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 eye-witnesses have assigned the role of all the accused
      of causing injuries in their statements. PW.I and PW.4 are two
c     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 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
D     or make the statement of witnesses unreliable.
              21. There are two reasons for not accepting the above arguments;
      firstly, before the Police also the rok of accused was mentioned by eye-
      witnesses. In their statements under Section 16 l Cr.P C and before the
      Court also eye-witnesses proved the role of the accused and presence
 E    of the accused. Hence, the eye-witness 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 eye-witnesses that accused
      persons did not allow the injured to come out from their house for about
 F    three hours. In spite of the request being made by neighbours and other
      persons present on the spot, accused have almo~t seized the house and
      did not permit injuredAfazuddin, Abdul Rahman and Samsuddin to come.
      out or to go for treatment. Finding to this effect has been recorded 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
 G    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
 H    extracted as below:-                                               ·
             FAZAR ALI & ORS. v. STATE OF ASSAM                                655
                   [ASHOK BHUSHAN, J.]

      "17. It has been contended by the learned Counsel for the A
      appellants that the discrepancies between the statements of
      tlte eyewitnesses inter se would go to show tltat 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 B
      the injuries caused by each of the accused to the deceased
      and to PW3, the injured eyewitness. We are of the opiliion
      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 tlte deceased or tlte injured more
      particularly wltere it has been proved on record that the C
      injuries had been caused by several accused armed with
      different kinds of weapons.
      18. We also find tltat with tlte 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 D
      the record and find that the evidence had been recorded more
      than jive 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 tlte injuries, it would not detract from
      the substratum oftlteir evidence. It is however very significant
      that PW 2 is the sister of the four appellants, the deceased E
      and PW 3 Devendrappa and in the dispute between tlte
      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 F
      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
cross-case in which Samsuddin and his sons were charge-sheeted under
Section 325 IPC which resulted in acquittal by the trial court by judgment     G
and order dated 08.10.2002. The accused were found aggressor and
after accused being found present and having caused injuries which
resulted in death ofAbdul Rahman both the Courts below did not commit
any error in convicting the accused under Section 302 read with 149
IPC.
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656            , SUPREME COURT REPORTS                           [2017] 6 S.CR.


A             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.
B
             25. The High Court in para IO of its judgment has stated:-
            "JO.Jn 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
c           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 !tours and as a
            consequent, they were deprived of their medical treatment
D           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
 E    dismissed.
      Ankit Gyan                                                    Appeal dismissed.