Point of Law:Offence of murder – Convicted under S. 325 of IPC - Although prosecution witnesses have deposed that the injuries on the leg of the deceased was caused by axe, rod, crowbar and stick etc. in absence of specific evidence as to which of the weapon was used and in the face of clear medical evidence that no incised wound was found on the body of the deceased

JUDGMENT :

M.A. Ali, J

Learned Counsel, Mr. A.I. Uddin appearing for the appellants and learned Addl. Public Prosecutor, Mr. M. Phukan for the State were heard.

2. This appeal is directed against the judgment and order passed by the learned Sessions Judge, Hojai, Sankardev Nagar, in Sessions Case No. 514(N)/2013, whereby, the appellants were convicted u/s 302 IPC and sentenced to undergo rigorous imprisonment for life and fine of Rs.10,000/-each with default stipulation.

3. The prosecution case in a nutshell was that on 19-06-2009, at about 3.30 PM, nine accused persons named in the FIR entered into the land possessed by Habibur Rahman (deceased) and started cutting bamboos and accused Mukutar (since deceased) pelted stone at the house of the informant. When the informant Lutfur came out of the house, the accused Sahidur Rahman, Hasibur and Rafique Ali, all armed with “dao”, chased Lutfur Rahman and he ran away out of fear. Thereafter, the accused Sahidur Rahman, Hasibur Rahman, Rafique Ali, Hafizur Rahman and Saidur Rahman assaulted Habibur Rahman (deceased), Motibur Rahman and Dhan by “dao”, “lathi”, spear etc. and also demolished the dwelling house of Habibur Rahman. Habibur Rahman succumbed to the injuries at the spot. Lutfur Rahman(PW-1) lodged the FIR(Ext.-1), on the basis of which, police registered Kaki PS Case No. 32/2009 u/s 147/148/149/447/302/326/336/302/427 IPC and upon completion of investigation submitted charge-sheet against nine accused persons including the present appellants.

4. Based on the charge-sheet and the materials produced therewith, learned Sessions Judge framed charges against all the charge-sheeted accused persons u/s 447/34 and u/s 147/148 IPC. Further, the learned Sessions Judge framed charges u/s 302/336 read with Section 34 IPC against Mukutar Rahman, Sahidur Rahman, Hafijur Rahman, Rafique Ali and Hasibur Rahman. All the accused persons including the present appellants denied the charges and claimed to be tried. Prosecution examined 10 witnesses to substantiate the charges against the appellants. Upon completion of the prosecution evidence the accused persons were examined u/s 313 CrPC, wherein, all of them took the plea of innocence and examined one witness in their defence.

5. Lutfur Rahman, the informant was examined as PW-1. He deposed that on 19-06-2009 at about 4.30 PM, the accused Mukutar, Sahidur, Hafizur, Saidur, Hasibur, Jahidur, Rafique, Adilur and Kasem entered into the residential campus of the deceased and started cutting bamboos and they also pelted stone at the house of PW-1. He also stated that the accused Sahidur, Hasibur and Rafique chased him and he had fled the scene out of fear. According to him, when he came back after about an hour, he had found his father lying dead in the house of Mukut, and by that time all the accused persons had left the place of occurrence.

6. The PW-2, Azizur Rahman deposed that on 19-06-2009, at about 2.30 PM, accused Mukutar Rahman (since deceased) asked for demarcation of the land. He further stated that accused Sahidur, Hafizur, Saidur, Adilur, Jehidur, Hasibur, Sarif, Rafique and Abdur @ Kasem entered into their campus and started cutting bamboos and Mukutar pelted stone at their house. When his elder brother Lutfur was fleeing from the house out of fear, accused Sahidur and Hasibur chased him and Mukutar stabbed into the abdomen of his brother Motibur with a spear. He also stated that Hafijur, Sahidur and Mukutar inflicted fracture injury on the leg of his father (deceased) by means of a crowbar and axe and also plucked his right eye. He further stated that when he tried to flee the scene, having been chased by the accused persons, Hafizur intercepted him and fell him into a pond. He also stated that the accused persons tied the deceased with a mango tree. However, during cross-examination he stated that his father and brother were lying on the ground and the accused persons did not tie them.

7. PW-3, Motibur Rahman was also an injured witness. He