Point of Law: Criminal Law – Offence of Murder – Testimony of eye-witnesses – Admissibility of - Testimony of eye-witnesses, we find that one Appellant 2 was identified as a member of the unlawful assembly who had apparently died before commencement of trial. However, none of the witnesses have taken name of “Appellant 2”. If that be so, there is serious doubt as regards the presence of the appellant No.2, in the place of occurrence on the date on which the occurrence took place. The benefit of such doubt must go in favour of appellant No.2.

JUDGMENT :

Suman Shyam, J.

Heard Mr. H.R.A. Choudhury, learned senior counsel assisted by Mr. A. Ahmed, learned counsel appearing for the appellants in Crl. Appeal No.300/2017. We have also heard Mr. B.M. Choudhury, learned counsel appearing for the appellants in Crl. Appeal No.318/2017. Mr. M. Phukan, learned Additional Public Prosecutor, Assam, is present on behalf of the State in both the appeals. None has appeared for the informant.

2. The aforementioned appeals arise out of the judgment and order dated 16.06.2017 passed by the Court of learned Sessions Judge, Goalpara in connection with Sessions Case No.223/2012. There were 16 charge-sheeted accused persons out of which, one accused viz., Md. Abdus Sattar Ahmed died. The remaining 15 accused persons had faced trial. By the judgment and order dated 16.06.2017 passed by the learned Sessions Judge, Goalpara, the 10 appellants in Criminal Appeal No.300/2017 and the 2 appellants in Criminal Appeal No.318/2017 had been convicted under Sections 147/341/323/307/302 read with Section 149 of the Indian Penal Code. Accordingly, the learned Sessions Judge, Goalpara had sentenced the accused persons, viz., Yousuf, Raijuddin @ Raju, Saizuddin, Sher Ali, Amir Ali, Sattar Ali, Abdus Salam, Abdul Hai @ Dillar, Taher Ali @ Guddu, Mirazul, Sadek Ali & Sayed to suffer simple imprisonment for six months for the offence under Section 147 of IPC; to suffer simple imprisonment for one month for the offence under Section 341 of IPC; to suffer simple imprisonment for six months for the offence under Section 323 of IPC; to suffer rigorous imprisonment for life and to pay a fine of Rs.5000/-each and in default, to suffer simple imprisonment for a year for the offence under Section 302 of IPC and also to suffer rigorous imprisonment for three years and to pay a fine of Rs.3000/- each and in default, to suffer simple imprisonment for six months for the offence under Section 307 of IPC. All the sentences were to run concurrently. The accused persons were acquitted in respect of the charge under Section 326 of IPC.

3. The other three accused persons viz., Ramjan Ali, Lalchand Ali and Gole Rahman were, however, honourably acquitted from all the charges on the ground that the prosecution had failed to implicate them with the offences alleged.

4. The prosecution story, briefly stated, is to the effect that on 08.07.2008 at around 8.30 p.m. while the deceased Abdul Wahab was returning home from Karbala Bazar, riding a motorcycle, accompanied by five other persons, the accused persons had laid an ambush in a secluded place in the Gobindapur Rabhapara PWD road by tying three thick wires to a mango tree with an intention to kill the deceased. As soon as the deceased Abdul Wahab and his companions reached the place of occurrence in four motor bikes, the accused persons had pulled the wires causing the first bike to fall down and thereafter, launched a sudden attack on Abdul Wahab by means of deadly weapons such as sword, dao, axe, spear etc. Before attacking him with sharp weapons, one of the accused persons had also sprayed chilli power in the eyes of the victim. Due to the multiple injuries sustained on his person, Abdul Wahab died on the spot and Omar Ali, his son-in-law, also sustained grievous injuries.

5. On 10.07.2008 Md. Najmul Haque had lodged an ejahar before the Officer-in-Charge, Goalpara Police Station reporting the incident with a request to arrest the 13 accused persons including the appellants named therein. Based on the ejahar dated 10.07.2008, Goalpara P.S. Case No.210/08 was registered under Sections 147/341/325/326/307/302 of the IPC. The responsibility for carrying out the investigation in the aforesaid Police case was entrusted upon Inspector Saleh Uddin Ahmed. During the course of investigation, the I.O. had recorded the statements of several witnesses, seized some incriminating materials including the four bikes, dao, spear, lathi as well as the wearing apparels of the victim from the place of