IMPORTANT POINTS
To invoke section 34 the criminal act done by actual participation of more than one person and existence of prior concert must be proved.
In case of perfunctory examination under Section 313 matter can be remitted back to trial court with the direction to retry from the stage at which the prosecution was closed.
When there are discrepancies in evidence, prosecution case is not supported by medical evidence and there are no recoveries, accused cannot be convicted.

JUDGMENT :

SANJAY KISHAN KAUL, J.

1. The incident is of 17.3.1997 at 7:00 a.m. in the morning. Keramat Ali Maral (the deceased) was having tea at the tea stall known as Kalia Hotel. It is alleged that Abdul Hai, Abdul Rashid, Imdadul Islam, Rahul Amin, Mofizuddin Islam and Abdul Rahim Faruki, being the first six accused entered the stall and all of a sudden accused Nos.2 & 3 fired at Keramat Ali with a pistol, while the other accused injured him by stabbing and hacking with daggers, swords, etc. Keramat Ali is stated to have died on the spot. The son of Keramat Ali, Nazrul Islam (PW-3) lodged the FIR, stating that he was present at the site along with other witnesses, but when they offered resistance, they were threatened with pistols. To save their life, they ran away from the site. Insofar as accused Nos.7, 8 & 9 are concerned, it is stated that “further it may be mentioned that the incident took place at the instance and instigation of accused Nos.7, 8 and 9.”

2. On the investigation being completed, a charge-sheet was filed and charges were framed by the Sessions Judge under Sections 147, 148, 302/149 and 302 of the IPC against all. Accused Nos.7 to 9 faced charges under Sections 302/109 of the IPC. In the course of trial, accused No.4, Rahul Amin, absconded. Accused No.1, Abdul Hai, died/ was allegedly murdered during the course of trial. On completion of trial the Sessions Judge, Morigaon found that accused No.1 was the main culprit who had killed the deceased, Keramat Ali. The trial court also found that the guilt of accused Nos.5 & 6 was also established beyond reasonable doubt.

3. The convicted accused filed an appeal before the Gauhati High Court and so did the State of Assam qua the accused who had been acquitted. The appeal of the convicted accused was dismissed by the High Court and the Special Leave Petition (‘SLP’) filed against the same was also dismissed and, thus, that matter attained finality.

4. The impugned judgment dated 12.2.2009 deals with the appeal of the State and has reversed the judgment of the trial court convicting the five accused.

5. Accused No.9, Samsul Haque has filed Crl. Appeal No.1905/2009, while Abdul Rashid (accused No.2) and Imdadul Islam (accused No.3) filed Crl. Appeal No.246/2011. It is these three accused who are before us.

6. We have heard Mr. R.K. Dash, learned Senior Counsel for accused No.9, Mr. Bijan Ghosh, learned counsel for accused Nos.2 & 3 and learned counsel for the State, Mr. Debojit Borkakati who took us through the record before us. We have also perused the trial court record.

7. We would first deal with the witnesses produced by the prosecution to prove their case. Four witnesses were projected as eyewitnesses to the occurrence, viz., Taher Ali (PW-1); Nazrul Islam (PW-3), who is the son of the deceased and the informant; Sorhab Ali (PW-4), brother of the deceased; Mozammil Hussain (PW-6), son of the elder brother of the deceased. While three of the witnesses are relatives, PW-1 is an independent witness. It may be noted that Mr. Dilip Modak, owner of the hotel, or any other independent witness present at the place of occurrence was not examined. Mr. Somnath Bora, the IO was produced as PW-7. It may also be noted that the defence examined only one witness, i.e. Siraj Ali (DW-1), who was at the place of the occurrence as recognised by the prosecution.

8. Learned Senior Counsel for accused No.9 contended that the complainant in the complaint itself made a very vague statement that “the incident took place at the instance and instigation of” the said accused and two others. Nothing more was said as to how it was at the instance and instigation of these three accused.

9. The second limb of his submission was that three of the witnesses, PW-3, PW-4 and PW-6 were interested and inimical witnesses inasmuch as PW-3, the son of PW-4 and PW-6 were accused in the murder case of the main accused, accused No.1, Abdul Hai. The testimony of these three witnesses was stated to be full of exagg