JUDGMENT
Aftab H. Saikia, J.
1. Heard Mr. Sk. Muktar and Mrs. P. Lahkar, learned Counsel for the appellant as well as Mr. K.A. Mazumdar, learned P.P., Assam.
The conviction of the appellant under Sections 302/34 IPC read with Sections 457/34 IPC and sentence to undergo imprisonment for life under Sections 302/34 IPC and rigorous imprisonment for one year with a fine of Rs. 1000/- and in default, rigorous imprisonment for one month under Sections 457/34 IPC so handed down to the appellant by the learned Sessions Judge, Darrang at Mangaldoi by his judgment and order dated 22.10.99 rendered in Sessions Case No. 18 (DM) 91 have been put under challenge in this instant criminal appeal.
2. Facts briefly stated, as projected in the prosecution case, is (are) that on 19.10.88 at about 2 A.M. accused Sahar Ali @ Sahir Ali and Hazrat Ali, the appellant, entered the house of Md. Miaruddin Sheikh (hereinafter referred to as ‘the deceased’) and killed him by assaulting with axe and dagger. On raising alarm by the wife of the deceased, Siratan Nessa (P.W. 5), she was threatened with dagger and caught by her neck. At that time, P.W.-5 could recognize and identify the accused person including the appellant in the light of a burning lamp. However, the accused persons fled away on arrival of the neighbours. An FIR was lodged to that effect by P.W. 5 herself whereupon the Dhula police registered a case being Dhula PS. Case No. 50/88 under Sections 457/302 IPC.
3. After investigation, police submitted chargesheet against both the accused persons namely Sahar Ali @ Sahir Ali and Hazrat Ali, the appellant under Sections 457/302/34 IPC.
4. On being committed, the learned Sessions Judge took up the trial wherein on appearance of the accused persons and after hearing the learned Counsel for the parties, charges were framed under Sections 457/302/34 IPC against both the accused persons. Both the accused persons pleaded not guilty and claimed to be tried.
5. After completion of examination of the “Witnesses as adduced by the prosecution, the present appellant Hazrat Ali was found to be absent for which he was declared absconder vide order dated 30.9.97. The other accused Sahar Ali @ Sahir Ali after completion of trial was found to be guilty of the commission of offence of murder of the deceased and accordingly; he was convicted under Sections 302/457/34 IPC and sentenced to suffer life imprisonment by the learned Sessions Judge by his judgment and order dated 11.3.98 cassed in Sessions Case No. 18 (DM) 91.
6. On the other hand, the present appellant could be apprehended only on 21.6.99 and brought for trial and on the basis of the same set of evidence the present appellant was convicted by the learned Sessions Judge under Sections 302/457/34 PC and sentenced accordingly as already indicated above.
7. At the very outset Sk. Muktar, learned Counsel for the appellant has submitted that the conviction and sentence so imposed upon the other accused Sahar Ali @ Sahir Ali as noticed above, having been challenged before this Court, were set aside and quashed by this Court by judgment and order dated 21.5.03 passed in Crl. Appeal No. 113 (J)/98 holding that the testimony of P.W. 2 Abdul Latif, P.W.-3 Omar Ali and P.W.-5 Siratan Nessa, the informant who was also being the eye witness, as she claimed seeing the occurrence at the fateful night while she was sleeping in her house with her husband, the deceased, was unreliable and inadequate for a criminal Court to arrive at the definite conclusion that the appellant therein was an assailant of the deceased Miaruddin.
8. Accordingly, it is forcefully submitted that relying on the same set of evidence, the prosecution failed to prove its case against the appellant beyond reasonable doubt for which the appellant is entitled to get the benefit of doubt against the charges under Sections 457/302 read with Section 34 IPC.
9. We have scrupulously Scrutinized the entire evidence made available on record as adduced by the prosecution. We have also given our thoughtful consideration to the extensive arguments and submissions so made on behalf of the appellant as well as the State of Assam.
We have also thoroughly gone through the judgment and order dated 21.5.2003 whereby the other accused Md. Sahar Ali @ Sahir Ali was acquitted by this Court.
10. Having meticulously considered and -appreciated the testimony of the prosecution witnesses more particularly, P.W.-3 (Md. Omar Ali) and P.W.-5 (Mustt Siratan Nessa), the informant and the only eye witness, it is found that P.W. 5 in her evidence in chief deposed that on the night of occurrence accused Sahar Ali @ Sahir Ali, who was acquitted by this Court as indicated above, along with Hazrat Ali, the present appellant, entered the room by breaking the wall at night where a lamp was kept burning. They assaulted her husband with axe and dagger. It was the accused Sahar Ali who held her by throat and the present appellant Hazrat Ali assaulted her husband the deceased. Since both the accused persons hailed from the same village, she knew both of them. However, in cross she categorically testified that both the accused had come by covering their face with black cloth and the lamp which was burning at that time got broken on falling on the ground.
11. Keeping in mind the evidence of this witness, we have no hesitation to hold that there is no clinching evidence to rope in the present appellant in committing the killing of the deceased as one of the assailants of the deceased.
12. That apart, since one of the co-accused was already acquitted by this Court and it also appears that this appellant too stands on the same footing as that of the earlier convicted acquitted co-accused Sahar Ali, the present appellant is also entitled to get acquittal.
13. To arrive at this finding, we have been guided by a decision of the Supreme Court rendered in a case reported in 2004 AIR SCW 1329 (Charan Singh and Ors. v. State of U.P.). In paragraph 12 it was held as under:
12. We shall first deal with the accused-appellant Raj Pal. As noted by the High Court he stands on the same footing as that of the acquitted accused persons. The Trial Court and the High Court, however, distinguished his case by observing that being the son of accused Harkesh who was prime mover of the crime, he may have a motive. In the absence of any positive material in that regard, there is no scope for distinguished his case from the other accused persons who have been acquitted. Therefore, his conviction cannot be maintained.
14. In view of what has been stated, ob-served and discussed above and also having regard to the cited judicial pronouncement of the Apex Court as well as the judgment and order dated 21.5.03 rendered in Crl. Appeal No. 113(J)/1998 as already discussed above, we are of the considered view that the appellant is entitled to get acquittal. We do order accordingly.
15. The appellant be set at liberty forthwith, if he is not required in any other case.
In the result, the appeal succeeds and stands allowed.
Send down the LCR forthwith.
