IMPORTANT POINTS
(1) Every contradiction or omission is not a ground to discredit witness or to disbelieve his/her testimony.
(2) Theory of last seen together is helpful to prosecution if deceased was seen in company of accused in proximity of time at which dead body is found.

FACTUAL ASPECT

1. The appellants are accused nos. 3, 1, 6 and 7 respectively. The appellants have been convicted for the offences punishable under Section 302, read with Section 149 of the Indian Penal Code (for short, ‘IPC’). The allegation against the appellants is of committing culpable homicide amounting to the murder of one Sahabuddin Choudhury. The incident is of 3rd February 2013. There were eight accused who were tried for the offence. Out of the eight accused, the Trial Court convicted five. One died during the pendency of the trial. An appeal against conviction was preferred before the High Court. By the impugned judgment, the High Court confirmed the appellants' conviction. However, the High Court set aside the conviction of accused no. 5. The case of the prosecution is that accused no. 1 (Md. Abdul Kadir) picked up the victim of the offence from his residence at 4 pm on the date of the incident and took him to Bhojkhowa Chapori Bazar. The accused killed the victim behind L.P. School by assaulting him with a sharp weapon.

SUBMISSIONS

2. Learned senior counsel appearing for the appellants has taken us through the notes of evidence of the material prosecution witnesses. He pointed out that in paragraph 42 of its judgment, the Trial Court held that the claim of PW-1 (Md. Akhtar Hussain Choudhury) that he was an eyewitness was fallacious. He pointed out that even evidence of PW-3 (Md. Afazuddin Chaudhury) needs to be discarded, as his evidence is full of omissions and contradictions. Moreover, he cannot be termed an eyewitness. As far as evidence of PW-4 (Md. Saidur Ali) is concerned, he again submitted that the evidence is not worthy of acceptance, as it is wholly unreliable. He pointed out that evidence of PW-6 (Mustt Hasen Banu, wife of the deceased) shows that there was a prior enmity between her husband and the accused. He pointed out that PW-6 admitted that her husband had lodged a police complaint against the accused on the allegation that the accused had dispossessed him from his land. He submitted that evidence of last seen together in the form of testimony of PW-7 (Md. Sultan Ali) cannot be relied upon. He submitted that the same is true with evidence of PW-9 (Md. Abdul Haque). He pointed out that evidence of PW-10 (Md. Anisul Haque) does not help the prosecution at all. He also invited our attention to the evidence of PW-11 (Sri Bidyut Bikash Baruah, Investigating Officer). He submitted that while recording the cross-examination of the prosecution witnesses, the contradictions had not been properly recorded in accordance with the law.

3. Learned senior counsel appearing for the State submitted that the evidence of prosecution witnesses shows that the deceased was last seen together with the accused. He submitted that coupled with the evidence of last seen together, the motive for the commission of offence had been established. Even otherwise, there is convincing evidence against the appellants. He, therefore, submitted that no fault can be found with the view taken by the High Court.

CONSIDERATION OF SUBMISSIONS

4. There is one aspect that was not brought to the notice of this Court, which goes to the root of the matter. As can be seen from paragraph 108 of the judgment of the Trial Court, the appellants have been convicted for the offence punishable under Section 302 with the aid of Section 149 of IPC. We may note here that ultimately, the High Court held that only four accused were guilty. Under Section 149 of IPC, every member of an unlawful assembly is guilty of the offences committed in the prosecution of the common object of the unlawful assembly. Therefore, to apply Section 149 of IPC, there has to be an unlawful assembly. Section 141 of IPC defines unlawful assembly as an assembly of five or more persons. The High Court has not held that apart from the present appellants whose conviction was confirmed, others formed part of the unlawful assembly. Hence, there was no unlawful assembly within the meaning of S