The main legal point established in the judgment is the requirement of sufficient evidence to prove the existence of an unlawful assembly with a common object to commit murder, as well as the reasonableness of the delay in filing the FIR.

JUDGMENT :

Suman Shyam, J.

Heard Mr. Z. Kamar, learned senior counsel assisted by Mr. S. C. Biswas, learned counsel appearing for the appellants in both these appeals. We have also heard Ms. S. Jahan, learned Additional Public Prosecutor, Assam appearing on behalf of the State. Mr. A. Ahmed, learned counsel has appeared on behalf of the informant.

2. These two appeals arise out of the judgment dated 17.08.2017 passed by the learned Additional Sessions Judge, Barpeta in connection with Sessions Case No.41/2015 convicting all the seven accused persons under Sections 147/148/149/302 of the IPC for committing the murder of deceased Kader Ali and sentencing each of them to undergo rigorous imprisonments-- for life for committing the offence under sections 302/149 of the IPC; for one year for committing the offence under sections 147/149 IPC ; for two years for the offence committed under section 148/149/IPC and also to separately, pay fine for each of the offences, with default stipulations. Convicted Accused Abdul Malek has preferred Criminal Appeal No.359/2017 whereas, the remaining six convicted accused persons viz., Abdul Gafur @ Gafur Ali, Abbas Ali, Abdul Hai Fakir, Shahjahan Fakir @ Shahjahan Ali, Taibur Rahman @ Taibar Ali and Abdul Hoque have jointly preferred Criminal Appeal No.362/2017. Be it mentioned herein that during the pendency of the appeal, accused/appellant Taibar Ali has expired as a result of which, Criminal Appeal No.362/2017 qua the appellant Taibur Ali, has abated.

3. As per the case projected by the prosecution, the occurrence took place on 16.02.2012 at about 8:00 a.m. in the morning, when the deceased Kader Ali, being accompanied by his wife Kariman Nessa, was going to attend a village ‘mel’ (meeting). At that time, the accused persons, being armed with deadly weapons, forming an unlawful assembly, had waylaid the deceased and his wife and on being exhorted by accused Abdul Malek and Abdul Hoque, accused Shahjahan Fakir @ Shahjahan Ali had stabbed Kader Ali on his belly with a dagger causing serious injury. The wife of the deceased Kariman Nessa was also attacked and injured by two of the accused persons. The victim was taken to the hospital but he succumbed to his injuries.

4. On 16.02.2012, an Ejahar was lodged by wife of the deceased viz., Kariman Nessa, at around 6:00 p.m. in the evening, with the Officer-in-Charge of Sorbhog Police Station narrating the incident. Based on the said Ejahar, Sorbhog P.S. Case No.23/2012 was registered under sections 147/148/149/302/326/324 of the IPC. In the Ejahar, names of all seven accused persons viz., (1) Abdul Malek, (2) Abdul Gafur @ Gafur Ali, 3) Abbas Ali, (4) Abdul Hai Fakir, (5) Shahjahan Fakir @ Shahjahan Ali, (6) Taibur Rahman @ Taibar Ali and 7) Abdul Hoque were mentioned. After registration of the ejahar, Police took up investigation in connection with Sorbhog P.S. Case No.23/2012 and on completion of the investigation, submitted charge-sheet against all the seven accused persons. Based on the charge-sheet submitted by the I.O., charge in respect of offences punishable under Sections 147/148/149/302/323/324 of the IPC were framed against all the accused persons. The same were read over and explained to the accuseds. However, since the accused persons had pleaded innocence and claimed to be tried, the matter went up for trial.

5. During trial, the prosecution had examined as many as 12 witnesses including the doctor (PW-3), who had conducted the post-mortem examination on the dead body of the deceased and the Investigating Officer (PW-11), who had conducted investigation in the connected police case. The case of the accused persons was one of total denial. The defense side, however, did not adduce any evidence. On conclusion of trial, the learned Additional Sessions Judge, Barpeta had passed the impugned judgment and order dated 17.08.2017 convicting all the accused persons and sentencing them in the manner indicated above. All the accused persons were, however