Point of law: Offence of Murder – Chain of circumstances proved – Common intention – Conviction justified.

JUDGMENT :

A.D. Choudhury. J.

1. Heard Mr. A. Choudhury and Mr. A. Ahmed, the learned counsels for the appellants. We have also heard Ms. B. Bhuyan, the learned Additional P.P., Assam, appearing for the State.

2. This appeal against conviction has been preferred by the 4 (four) appellants assailing the judgment and order dated 20.06.2018 passed by the learned Sessions Judge, Nalbari in Sessions Case No. 89/2016.

3. The prosecution case unfolded from the materials available on record is to the effect that at about 08:30 PM on 05.07.2004, the appellant No. 1, 2 and 3 suddenly attacked the victim Md. Nimuddin Ali with deadly weapon like lathi, degar, axe, spear etc, fell him down on the road. Thereafter, some villagers, including Khalil Ali took Nimuddin to his house in an unconscious state and thereafter, took the victim to Tihu Hospital on a vehicle and subsequently doctors declared Md. Nimuddin dead. It was also stated in the FIR that at the time of the incident, Md. Rafique Ali, the P.W. 3, was coming a little behind of Md. Nimuddin Ali and the said PW-3 fled away when one of the accused chased to attack him. It is also the case as narrated in the FIR that there had been a quarrel between the family of the deceased and the accused persons with regard to right of farming of land of Rajiv Gandhi College. On the next date of the incident i.e. on 06.07.2004, the brother of the victim viz. Md. Kashed Ali (PW-1) had lodged an ejahar before the Officer In-Charge of Tihu Police Station. On the basis of the said Ejahar, Tihu P.S. Case No. 41/2004 under sections 341/302/34 of the IPC was registered and the matter was taken up for investigation.

4. Upon completion of the investigation, the Investigating Officer had submitted charge sheet against the accused/appellants namely Uzir Ali (Appellant No. 4) Md. Nashir Ali (Appellant No. 1), Md. Rashim Ali (Appellant No. 2) Md. Nur Ali and Md. Jalal Ali (Appellant No. 3). Though the name of Uzir Ali was not mentioned in the Ejahar, but his name was included in the charge sheet on the basis of the statement made by witnesses during the course of investigation. Accused persons/appellants namely Rashim Ali, Nur Ali and Jalal Ali were absconding at the time of filing of the charge sheet.

5. Based on the charge sheet submitted by the Investigation Officer, charges were framed against the accused/appellants under Section 148 IPC read with Section 302/149 of the IPC. The charges were read out and explained to them but the accused persons/appellants had pleaded not guilty and claimed to be tried. Hence, the matter went up to trial.

6. In order to bring home the charges, the prosecution had examined as many as fourteen witnesses including the Medical Officer (PW-10) who had conducted the post mortem examination on the dead body of the deceased and the Investigation Officer (PW-12). PW-2, Mustt. Jakima Begum and PW-3 Md. Rafique Ali had claimed to have seen the occurrence; therefore, they were examined as eye witnesses.

7. By the impugned judgment and order dated 20.06.2018, the learned Sessions Judge, Nalbari, had convicted the accused persons/appellant Nos. 1, 2, 3 and 4 namely Nazir Ali, Rashim Ali, Md. Jalal Ali and Md. Uzir Ali under Section 302/34 IPC and sentenced each of them to undergo Rigorous Imprisonment of life and also to pay fine of Rs. 5000/-each and in default to suffer Simple Imprisonment for one month each. However, accused Nur Ali was acquitted on the ground that the prosecution had failed to bring home the charge against the accused under Sections 148/149/302 of the IPC. All the accused persons, including the present appellants were acquitted from the charge framed under Section 148 IPC on the ground that the prosecution had failed to establish the said charge.

8. By the impugned judgment and order dated 20.06.2018, the learned trial court had held that the prosecution had succeeded in establishing the charges brought against the appellants beyond reasonable doubt by direct evidence of the e