IMPORTANT POINT
Contradiction in statements of accused before the court and before the police u/s 161, CrPC cannot shake the entire evidence or make the statement of witnesses unreliable.

JUDGMENT :

Ashok Bhushan, J.

1. This appeal has been filed by eight accused who have been convicted under Section 302 read with Section 149 IPC and sentenced to under go life imprisonment by trial court as well as by High Court. The prosecution case is that on 12.11.1993 in the morning at about 8.00 AM twelve accused persons have attacked complainant, his father Samsuddin, his brother Abdul Rahman and his 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 Rahman could be taken to hospital. Both Samsuddin and Abdul Rahman were referred to Nagaon Civil Hospital where Abdul Rahman died on the same day at 4.00 PM.

2. A written complaint was submitted by Afazuddin son of Samsuddin and brother of Abdul Rahman, which had the thumb impression of Afazuddin whereunder names of five accused Sekendar Ali, Abu Taher, Abdul Sattar, Fazar Ali and Akkash Ali were mentioned with seven other accused. Complaint was initially registered under Section 147, 148, 149 and 326 IPC in which Section 302 IPC was added subsequent to death of Abdul Rahman.

3. I.O. on the same day of incident examined Rustam Ali, Afazuddin, Muslemuddin, Abdul Sattar (Son of Mafizuddin), Samsuddin, Jakir Hussain, Giasuddin, Jahura Khatoon and Fatema Khatoon.

4. After investigation of the appellants, the charge sheet was submitted against eleven accused, one of the accused named Abu Taher had died on 01.03.1999. Prosecution produced thirteen witnesses to prove the charge which included two Investigating Officers and two Medical Officers. The trial court, after considering the entire evidence on record by judgment dated 08.10.2002 (Session Case No.20 of 99, GR No.979/93) held all the accused guilty and convicted them to the following effect:-

“15. So, in view of discussion above, I convict and sentence accused Sattar, Rafiqul, Akkash Ali, Fakaruddin, Nuruddin, Sekander, Motin, Idrish Ali and Fazar to undergo rigorous imprisonment for one year each for their offence punishable under Section 148 IPC and also I convict and sentence all these accused persons to undergo their rigorous life imprisonment with a fine of Rs. 1000/- each in default rigorous imprisonment for two months for their offence. Offence punishable U/s 302, 149 IPC. I also convict and sentence accused Sattar, Rafiqul, Akkash Ali, Fakaruddin, Nuruddin with an imprisonment for a period of six months for their offence punishable U/s. 323, 149 IPC. The prosecution failed to establish case punishable U/s. 148, 302, 323, 149 IPC against accused Islamuddin and Jakir Hussain for which they are acquitted forthwith. The bail bonds of all accused persons stand cancelled. The sentence of all 9 convicts as stated above will run concurrently.”

5. It is also relevant to note that with regard to the incident on 12.11.1993 a crosscase was also registered being Case No. 978/93 in which Samsuddin and three others were accused. In the crosscase, it was alleged that injury was inflicted by Samsuddin and his sons in which Abdul Sattar received injuries.

6. On crosscase Sessions Case No. 41/99 (G.R. Case No.978/93) was registered under Section 325 IPC. Accused Samsuddin and others by judgment dated 8.10.2002 were given clean aquittal in the cross-case.

7. Accused aggrieved by the judgment, against the conviction have filed a Criminal Appeal No. 420/2002. The High Court after hearing the learned counsel for the parties vide its judgment and order dated 21.12.2005 dismissed the criminal appeal, aggrieved by which judgment the eight appellants have filed this appeal.

8. Learned counsel for the appellant in support of the appeal contends that in First Information Report which was lodged by Afazuddin son of Samsuddin and brother of Abdul Rahman (deceased) had