The principle of proving guilt beyond all reasonable doubt is essential in criminal cases.

JUDGMENT :

Achintya Malla Bujor Barua, J.

1. Heard Mr. A.M. Bora, learned senior counsel for the appellants. Also heard Mr. M Phukan, learned Additional Public Prosecutor for the State of Assam and Mr. G. Baishya, learned counsel for the informant respondent No. 2.

2. An ejahar dated 16.09.2007 was lodged in the Dhing Police station by one Musstt. Rahima Khatoon stating that at about 2.45 pm on the given day when her husband Mujibur Rahman went to the field to have a look at the cultivation which was located at a little distance from their house, the accused persons named therein had struck her husband repeatedly with a sharp weapon causing his death and thereafter fled away from the place of occurrence.

3. Mr. AM Bora, lerned senior counsel for the appellant by referring to the deposition of PW-1 Azizur Rahman makes submission that in the part of the deposition made on 19.11.2009, it is stated as I do not know as to why I was asked to put my signature in Ext.3. No item was seized in my presence. It is not a fact that while making statement before police, I said that I had seen my younger brothers Sahidur and Wahidur running, carrying blood stained khukris in their hands. Although the said part of the deposition is recorded to be examination in chief on oath, but the nature of the deposition reveals that it was either made after some leading questions being put to the witness or it was made after a suggestion being made. Accordingly, the learned senior counsel submits that the same is more of a cross examination rather than examination in chief and as such PW-1 is to be declared to be a hostile witness.

4. We have verified the deposition of the PW-1 from the original records and could notice that the said part of the deposition was made on oath on 19.11.2009 as an examination in chief and therefore it cannot be construed that it was a part of the cross examination. Further, from the manner in which depositions were made indicates that it was made pursuant to some leading questions or suggestions and if in fact such depositions were made in course of examination-in-chief, it was always open for the defence to object to such leading question or the suggestions being made. Having not so objected while the depositions were made, it would now not be open for the appellant to raise the issue and make a claim that because of such leading questions or suggestions being made, the witness be considered as hostile witness.

5. In the trial, Azizur Rahman who deposed as PW-1 had stated that on the given day, at about 2 or 3 pm, while he was having a hair cut in a barber shop at the centre of the village, he heard a hue and cry from the direction of Laterijaan located to the east. Then one Sattar and some other persons told him that Wahidur and Sahidur had killed Majibur and upon hearing the same he went to the place of occurrence and saw Mujibur s dead body on the bank of Laterjaan. On seeing the deceased, the witness became senseless and fell down on the ground. He also stated that while he was running towards the place of occurrence, he saw the accused persons running away from the direction of the Laterijaan.

6. In the cross-examination, the witness stated that it is not a fact that he did not go to the place of occurrence saw the accused persons from the barber shop itself and further that it is not a fact that he had falsely stated that he had seen the accused persons running away.

7. From the evidence of the Investigating officer, PW-8, in his cross examination, it is taken note of that the PW-1 Azizur Rahman had not stated before the Investigating Officer that after hearing about the incident while he was in the barber shop to have his hair cut, he ran to the place of occurrence, which again conforms the statement of the PW-1 under Section 161 Cr.P.C. wherein he stated that he had seen two persons running away while he was sitting in the barber shop.

8. From the aforesaid contradiction, we are unable to accept the statement of the PW-1 Azizu