Point of Law : conviction cannot be based on the evidence of hostile witnesses and their testimony has to be discarded and the infirm witnesses cannot corroborate each other.

JUDGMENT :

Malasri Nandi, J.

1. Heard Mr. T.J. Mahanta, learned senior counsel assisted by Mr. A. Das, learned counsel for the appellants. We have also heard Ms. B. Bhuyan, learned senior counsel assisted by Ms. B. Bora, learned counsel representing the State respondent.

2. The instant appeal has been preferred by the accused/appellants being aggrieved and dissatisfied with the Judgment of conviction dated 23/12/2014 passed by the Learned Additional Sessions Judge, Karimganj in Sessions Case no 85/2011 whereby the Learned Trial Court had convicted the appellants u/s 302/149 IPC and sentenced them to undergo imprisonment for life and to pay fine of Rs. 50,000/-each in default to undergo rigorous imprisonment for one year each. They were further sentenced to undergo rigorous imprisonment for 3 years for committing the offence u/s 148/149 IPC. All the sentences were directed to run concurrently.

3. The brief facts of the prosecution case is that the informant Kalam Hussain lodged an Ejahar on 07/11/2009 before the O/C, Ratabari P.S. stating inter alia that on 04/11/2009 around 7 A.M. the accused persons namely Suruj Ali, Fakharuddin, Jalaluddin, Haris Ali, Joinul Haque and Hussain Ahmed attacked his elder brother Abul Hussain on the road due to previous enmity. They first abused his brother and then Suruj Ali struck a blow with a lathi on the head of his brother causing injuries thereon. When his brother fell on the ground, the rest of the accused persons started to assault him with lathis as a result of which, he sustained injuries on different part of his bodies. Thereafter, his brother became unconscious and the accused persons had left the place. Subsequently his brother was taken to Ratabari P.S. in a critical condition and the police sent him to Chargola Hospital for treatment. As the condition of his brother was critical, his injured brother had been shifted to Silchar Medical College and Hospital wherein he succumbed to his injuries.

4. On the basis of the complaint, a case was registered vide Ratabari P.S. case no 105/2009 u/s 147/148/302/149 IPC and the investigation had started. In the course of investigation, the investigating officer visited the place of occurrence, recorded the statement of the witnesses and prepared the site plan of the place of occurrence vide exhibit 5. During investigation, inquest on the dead body of the deceased was performed and subsequently, post mortem examination was conducted at Silchar Medical College and Hospital. After completion of investigation, charge sheet was submitted against the aforesaid accused persons, except Haris Ali, u/s 147/148/302/149 IPC before the court of Judicial Magistrate First Class, Karimganj. Learned Judicial Magistrate First Class took cognizance of the case but as section 302 IPC is exclusively triable by the court of sessions, the case was committed accordingly. During trial, all the accused persons aforesaid put their appearance before the court and charge was framed accordingly u/s 148/302/149 IPC to which they pleaded not guilty and claimed to be tried.

5. To substantiate the case of prosecution, eleven witnesses including one court witness Noorjahan Bibi, wife of the deceased, were examined and marked six exhibits. On the other hand, the defence did not choose to adduce any evidence. The case of the defence was total denial. After conclusions of trial the trial, court recorded the statements of the appellants u/s 313 Cr.PC and on being asked against the incriminating materials found against the accused persons, they denied the same.

6. Accused Jalaluddin stated in his statement u/s 313 Cr.P.C that on the date of occurrence, at about 10-11 AM he came to know that deceased fell down from a bridge. He visited the house of the deceased and sent the deceased to hospital. He did not accompany the injured. He was sent to Ratabari and then to SMCH. On the next day, he came to know that Abul Hussain died. He had participated in performing the last rites of Abul Hussain.