IMPORTANT POINT
There is no material to disturb the concurrent findings recorded by trial court and High Court that the appellants were perpetrators of crime and thus there is no merit in these appeals.

JUDGMENT

Phukan, J.-Four brothers were booked for trial under Section 302 read with Section 34 and other lesser offences of the Indian Penal Code. The Sessions Judge acquitted one accused namely, Aas Mohammed and the High Court acquitted another accused (Sher Mohammed). The High Court affirmed the conviction of two other brothers, namely, Majid and Bashir who have filed these two appeals by special leave and we are disposing of the appeals by this common judgment.

2. On the intervening night of August 11/12, 1995 in the wee hours i.e. about 4 a.m. Smt. Hamidi and her husband Abdul Rahim (PW-7) were subjected to murderous assault and at that time their minor son Hasham (PW-6), aged about 11 years, was the only person present. Both Smt. Hamidi and her husband Abdul Rahim became unconscious and fell down. Hasham saw the assault, raised an alarm and persons from nearby houses came to the house of Abdul Rahim. At about 5.50 a.m., Hasham (PW-6) was taken to the Police station by Jamaluddin, Shaurab and Tahir where Hasham was purported to have made a statement on the basis of which the First Information Report was recorded. In this statement, Hasham was alleged to have made a statement that there was a quarrel between his parents followed by assaults and as a result both of them were injured. Tahir was the nephew of the accused. Hamidi who was taken to the hospital remained unconscious till her death on August 14, 1995. Abdul Rahim (PW-7) who became unconscious after the assault was also taken to the hospital and he regained consciousness only after more than ten days. After Hamidi succumbed to her injuries, on August 15, a supplementary statement of Hasham (PW-6) was recorded by a Police officer of the rank of the Dy. Superintendent and in this Hasham stated that all the four accused assaulted his parents. After further investigation, police submitted charge sheet against the four accused and they were convicted as stated earlier. According to the prosecution, four years prior to occurrence, all the four accused assaulted Abdul Rahim (PW-7), as his eldest son Sher Mohammed was suspected of having illicit relationship with Mehmooda, sister of the accused. Abdul Rahim and his deceased wife with their two sons left the village out of fear of the accused and on their return to the village after more than four years, the present occurrence took place-

3. The plea of the accused was total denial and to prove the alleged statement of Hasham (PW-6) made on August 12, 1995 before police, D.W.1 - Jamalludin - ex-Sarpanch of the Village, was examined as defence witness.

4. The crucial question to be determined in this case is as to whether eye-witness Hasham (PW-6) minor son of the deceased made any statement to the police on August 12, 1995 or not and in the alternatively his alleged statement was under the influence of Jamaluddin, Shaurab and Tahir. If this statement is discarded, the statement recorded by police under section 161 on August 15, 1995 on the line on which Hasham deposed before the court fully supports the case of the prosecution and in addition the evidence of his father PW-7 also supports the said statement.

5. We may now refer to both the statements made by Hasham (PW-6) on 12/15 August, 1995. This witness was examined in court with reference to his statement recorded by the Dy. Superintendent under Section 161 Cr.P.C. on August 15. He stated before the trial court that on August 12, at about 4 a.m. he woke up on hearing noise and saw all the accused inside their house, accused Majid armed with Kulhari (axe) and remaining three accused with lathis. Accused Aas, Bushir and Sher inflicted lathi blows on the head of his mother - Hamidi, who became unconscious and fell down. Thereafter, accused Majid inflicted Kulhari blow on the neck of his father - Abdul Rahim (PW-7), who also fell on the ground and became unconscious. Thereafter, accused ran away. On alarm being raised by him, people from nearby houses came to their house.