# MD. JABBAR ALI & ORS v. THE STATE OF ASSAM

- **Citation:** [2022] 15 S.C.R. 773
- **Court:** Supreme Court of India
- **Decided:** 2022-10-17
- **Case number:** Criminal Appeal No. 1105 of 2010
- **Bench:** Ajay Rastogi, B. V. Nagarathna
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/md-jabbar-ali-ors-v-the-state-of-assam-35666
- **Pages:** 27

## Headnote

Penal Code, 1860: ss. 302 r/w 149, 148,123 and 447 - Trial
court convicted accused persons under different provisions of IPC
including ss. 302 r/w 149, 148,123 and 447 - Prosecution had
examined ten witnesses before trial court - High Court upheld the
judgment and sentence passed by trial court - Propriety of conviction
and sentence challenged on the ground that inter alia, witnesses PW1 to PW-6 were related to each other - Prosecution failed to examine
any independent and impartial witness and there were material
contradictions in the depositions made by the witnesses - Held:
Court in appeal may reassess the evidence when there has been an
improper reception or rejection of evidence, which if discarded or
received would leave the conviction unsupportable - Court may
also interfere in a case where there has been a misreading of vital
evidence or the Court omits to notice the important points in favour
of the accused - In the instant case, there were variations in the
evidence of PW-6 who was the first informant and evidence of
PW-1, PW-2, and PW-4 regarding as to who gave fatal blows to the
deceased - Trial court as well as High Court rightly did not rely on
the evidence of these witnesses who were highly inconsistent with
each other in holding the concerned accused guilty - PW-3, PW-4
and PW-5 were not eye witnesses and their deposition did not lend
any credence to the prosecution case on the point of who actually
stabbed the deceased person - The inherent contradictions in the
evidence of the prosecution-witnesses did not prove the case of the
prosecution beyond reasonable doubt - Conviction set aside.
Evidence - Credibility of related/interested/partisan witnesses
- Just because the witnesses are related/interested/ partisan
witnesses, their testimonies cannot be disregarded - However, when
the witnesses are related/interested, their testimonies have to be
scrutinized with greater care and circumspection - In the instant
[2022] 15 S.C.R. 773
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case, it was clear from the testimonies of the prosecution witnesses
that all the witnesses were related to the deceased and to each other,
there was not a single independent witness for prosecution -
Moreover, there was contradiction and inconsistency in their
testimonies - In such circumstances, the evidence could not be relied
upon to convict the accused persons.
Evidence: Inconsistent testimonies - Effect on prosecution
case - Courts have to label as to which category a discrepancy can
be categorized - Material discrepancies corrode the credibility of
the prosecution's case while insignificant discrepancies do not do
so - In the present case there are material discrepancies in the
testimonies of the witnesses and the same is fatal to the case of the
prosecution - The evidence of the prosecution is wholly unreliable
and does not prove the alleged offences against the accusedappellants.
Law of evidence: Material discrepancy in the evidence -
Appreciation thereof.
Allowing the appeals, the Court
HELD: 1. There are variations in the evidence of PW-6
who was the first informant in the instant case and the evidence
of PW-1, PW-2 and PW-4 regarding as to who gave the fatal blows
to deceased. The finding of the (trial court) Fast Track Court
that the evidence of PW-6 finds corroboration with the evidence
of PW-1 and PW-2 is erroneous and cannot be sustained. The
Fast Track Court as well as the High Court ought not to have
relied on the evidence of these witnesses which are highly
inconsistent with each other in holding the concerned accused
guilty. [Para 41][793-H; 794-A, D-E]
2. The evidence of PW-3, who was the brother of the
deceased, also does not support the case of the prosecution since
PW-3 was not an eye-witness but was merely a hearsay witness
who, in his deposition stated that he was informed by PW-4 that
accused Md. Moyan Ali stabbed the deceased On examining the
deposition of this witness PW-3, it is clear that the

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MD. JABBAR ALI & ORS.
v.
THE STATE OF ASSAM
(Criminal Appeal No. 1105 of 2010)
OCTOBER 17, 2022
[AJAY RASTOGI AND B. V. NAGARATHNA, JJ.]
Penal Code, 1860: ss. 302 r/w 149, 148,123 and 447 - Trial
court convicted accused persons under different provisions of IPC
including ss. 302 r/w 149, 148,123 and 447 - Prosecution had
examined ten witnesses before trial court - High Court upheld the
judgment and sentence passed by trial court - Propriety of conviction
and sentence challenged on the ground that inter alia, witnesses PW1 to PW-6 were related to each other - Prosecution failed to examine
any independent and impartial witness and there were material
contradictions in the depositions made by the witnesses - Held:
Court in appeal may reassess the evidence when there has been an
improper reception or rejection of evidence, which if discarded or
received would leave the conviction unsupportable - Court may
also interfere in a case where there has been a misreading of vital
evidence or the Court omits to notice the important points in favour
of the accused - In the instant case, there were variations in the
evidence of PW-6 who was the first informant and evidence of
PW-1, PW-2, and PW-4 regarding as to who gave fatal blows to the
deceased - Trial court as well as High Court rightly did not rely on
the evidence of these witnesses who were highly inconsistent with
each other in holding the concerned accused guilty - PW-3, PW-4
and PW-5 were not eye witnesses and their deposition did not lend
any credence to the prosecution case on the point of who actually
stabbed the deceased person - The inherent contradictions in the
evidence of the prosecution-witnesses did not prove the case of the
prosecution beyond reasonable doubt - Conviction set aside.
Evidence - Credibility of related/interested/partisan witnesses
- Just because the witnesses are related/interested/ partisan
witnesses, their testimonies cannot be disregarded - However, when
the witnesses are related/interested, their testimonies have to be
scrutinized with greater care and circumspection - In the instant
[2022] 15 S.C.R. 773
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case, it was clear from the testimonies of the prosecution witnesses
that all the witnesses were related to the deceased and to each other,
there was not a single independent witness for prosecution -
Moreover, there was contradiction and inconsistency in their
testimonies - In such circumstances, the evidence could not be relied
upon to convict the accused persons.
Evidence: Inconsistent testimonies - Effect on prosecution
case - Courts have to label as to which category a discrepancy can
be categorized - Material discrepancies corrode the credibility of
the prosecution's case while insignificant discrepancies do not do
so - In the present case there are material discrepancies in the
testimonies of the witnesses and the same is fatal to the case of the
prosecution - The evidence of the prosecution is wholly unreliable
and does not prove the alleged offences against the accusedappellants.
Law of evidence: Material discrepancy in the evidence -
Appreciation thereof.
Allowing the appeals, the Court
HELD: 1. There are variations in the evidence of PW-6
who was the first informant in the instant case and the evidence
of PW-1, PW-2 and PW-4 regarding as to who gave the fatal blows
to deceased. The finding of the (trial court) Fast Track Court
that the evidence of PW-6 finds corroboration with the evidence
of PW-1 and PW-2 is erroneous and cannot be sustained. The
Fast Track Court as well as the High Court ought not to have
relied on the evidence of these witnesses which are highly
inconsistent with each other in holding the concerned accused
guilty. [Para 41][793-H; 794-A, D-E]
2. The evidence of PW-3, who was the brother of the
deceased, also does not support the case of the prosecution since
PW-3 was not an eye-witness but was merely a hearsay witness
who, in his deposition stated that he was informed by PW-4 that
accused Md. Moyan Ali stabbed the deceased On examining the
deposition of this witness PW-3, it is clear that the same is not
corroborated by the evidence of any other witness such as PW-1
and PW-2 who stated that accused Md. Jabbar Ali stabbed the
deceased and PW-6 who stated that accused Md. Sahed Ali
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stabbed the deceased. The finding of the Fast Track Court that
the evidence of PW-3 lends support to the correctness of the
prosecution case is therefore incorrect. Thus, the evidence of
PW-3 in no way lends succor to the case of the prosecution. [Para
42][794-E-H]
3. PW-4, who is not an eye-witness to the occurrence. As
per his own deposition, he went to the place of occurrence after
he saw many people gathered there. According to him, accusedMH assaulted the deceased, however, during his crossexamination, he clearly stated that he did not know as to who
told him that accused-MH stabbed the deceased. PW-5 was also
not an eye-witness to the incident of deceased being killed by
the accused persons. He has failed to state which one of the
accused persons actually stabbed the deceased. The evidence of
PW-5 thus, does not lend any credence to the case of the
prosecution. [Paras 43, 44][795-A-D]
4. There is no clinching evidence so as to prove beyond
reasonable doubt the case of the prosecution as there are
contradictions in the evidence/depositions of PW-1, PW-2 and
PW-5. Moreover, the evidence of PW-6, the informant is
inconsistent with the depositions of PW-1, PW-2 and PW-5. We
find that the inherent contradictions in the evidence of the
prosecution-witnesses does not prove the case of the prosecution
beyond reasonable doubt. [Para 46][795-E-G]
5. Just because the witnesses are related/interested/
partisan witnesses, their testimonies cannot be disregarded,
however, it is also true that when the witnesses are related/
interested, their testimonies have to be scrutinized with greater
care and circumspection. In the instant case, it is seen from the
testimonies of the prosecutyion witnesses that all the witnesses
are related to the deceased and to each other. It is necessary to
state here that the evidence of the related witnesses can be
rejected if there are material contradictions and inconsistencies
found in their testimonies. It is observed that there have been
material improvements in the testimony of PW-1. PW1- in his
examination deposed that accused-MH stabbed deceased
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however in his cross-examination, PW-1 stated that he had not
told the police that accused-MH stabbed deceased. The same is
an improvement in the testimony which has to be borne in mind.
All the witnesses have given contradictory versions as to who
gave the fatal blow to deceased and the same amounts to material
contradictions. Owing to the substantial and material
contradictions in the testimonies of the prosecution witnesses,
the evidence of the prosecution is considered wholly unreliable.
Additionally, the prosecution has examined only related witnesses
and not a single independent witness. Therefore, in the facts and
circumstances of the case, the evidence does not prove the alleged
offences against the accused-appellants. [Paras 48, 51, 52 and
54][796-C; 797-B-E; 798-A-B]
6. Another aspect that this Court would like to look into is
as to what extent this Court can reappreciate and reappraise the
evidence on record. In a catena of cases, it has been held that
though in cases of concurrent findings of fact, this Court will
ordinarily not interfere with the said findings, this Court is
empowered to do so if in case it finds inter alia, misreading of the
evidence or where the conclusions of the High Court are
manifestly perverse . In the present case at hand as well, the
finding of conviction was recorded overlooking the material
contradictions in the evidence of the prosecution witnesses and
therefore the said conviction deserves to be set-aside [Paras 55
and 56][798-B-D; 798-D-E]
Saravanabhavan v. State of Madras AIR 1966 SC 1273;
Kashmira Singh v. State of Madhya Pradesh AIR 1952
SC 159 : [1952] SCR 526; Gangadhar Behera and
Ors. v. State of Orissa (2002) 8 SCC 381 : [2002] 3
Suppl. SCR 183; Raju alias Balachandran and Ors. v.
State of Tamil Nadu (2012) 12 SCC 701 : [2012] 11
SCR 109; Ganapathi and Anr. v. State of Tamil Nadu
(2018) 5 SCC 549 : [2018] 3 SCR 51; State of
Rajasthan v. Kalki & Anr. (1981) 2 SCC 752 : [1981] 3
SCR 504; Ashoksinh Jayendrasinh v. State of Gujarat
(2019) 6 SCC 535 : [2019] 7 SCR 309 - relied on.
Sohrab v. State of Madhya Pradesh (1972) 3 SCC 751
: [1973] 1 SCR 472; Bharwada Bhoginbhai Hirjibhai
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v. State of Gujarat (1983) 3 SCC 217 : [1983] 3 SCR
280; State of U.P. v. M.K. Anthony (1985) 1 SCC 505;
Prithu @ Prithi Chand v. State of Himachal Pradesh
(2009) 11 SCC 588 : [2009] 2 SCR 765; State of
Madhya Pradesh v. Chhaakki Lal (2019) 12 SCC 326
: [2018] 12 SCR 184; Dudh Nath Pandey v. State of
Uttar (1981) 2 SCC 166 : [1981] 2 SCR 771; Jitender
Kumar v. State of Haryana (2012) 6 SCC 204 : [2012]
4 SCR 408; State of Maharashtra v. Narsingrao
Gangaram Pimple (1984) 1 SCC 446 - referred to.
Case Law Reference
[1973] 1 SCR 472
referred to
Para 22.2
[1983] 3 SCR 280
referred to
Para 22.2
[2009] 2 SCR 765
referred to
Para 22.2
[2018] 12 SCR 184
referred to Para 22.2
[1981] 2 SCR 771
refereed to
Para 22.3
[2012] 4 SCR 408
referred to Para 22.3
[1952] SCR 526
referred to
Para 26
[2002] 3 Suppl. SCR 183
relied on
Para 48
[2012] 11 SCR 109
relied on
Para 49
[2018] 3 SCR 51
relied on
Para 50
[1981] 3 SCR 504
relied on
Para 52
[2019] 7 SCR 309
relied on
Para 56
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
1105 of 2010.
From the Judgment and Order dated 21.08.2009 of the High Court
of Gauhati (The High Court of Assam, Nagaland, Meghalaya, Manipur,
Tripura, Mizoram and Arunachal Pradesh) in Criminal Appeal No. 48 of
2007.
With
Criminal Appeal No. 1128 of 2010.
MD. JABBAR ALI & ORS. v. THE STATE OF ASSAM
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Raj Kishor Choudhary, Shakeel Ahmed, Anupam Bhati, Nakul
Choudhary, Advs. for the Appellants.
Shuvodeep Roy, Arnav Singh Deo, M/s Corporate Law Group,
Advs. for the Respondent.
The Judgment of the Court was delivered by
NAGARATHNA, J.
1. These Criminal Appeals have been filed assailing the common
impugned judgment and order dated 21.08.2009 passed by the Gauhati
High Court in Criminal Appeal No. 48 of 2007 by which the judgment of
conviction dated 29.12.2006 and order of sentence dated 30.12.2006
passed in Special Case No.46 of 2004 by the Court of Additional Sessions
Judge, Fast Track Court, Barpeta ('Fast Track Court', for the sake of
convenience) has been upheld by dismissing the aforesaid appeals and
consequently confirming the conviction of all the accused persons.
2. Since both the criminal appeals arise out of a common impugned
judgment, these appeals were heard together and are being disposed of
by this common judgment.
3. For the sake of convenience, the parties shall be referred to as
per their rank before the Fast Track Court.
4. The Fast Track Court vide its judgment dated 29.12.2006
convicted the appellants herein viz., Md. Yunush Ali (accused No.1),
Md. Hasan Ali (accused No.2), Md. Omar Ali (accused No.3), Md.
Jabbar Ali (accused No.4), Md. Tabibor Rahman (accused No.5), Mustt.
Hazerabhanu (accused No.6), Mustt. Chandrabanu (accused No.7), Md.
Moyan Ali (accused No.10) and Md. Sahed Ali (accused No.11) [all
appellants in Criminal Appeal No. 1105 of 2010] and Md. Ajmot Ali
(accused No. 8) [appellant in Criminal Appeal No. 1128 of 2010].
5. The present appeal qua accused No.1 stood abated vide order
dated 04.10.2010 since he died on 06.11.2009 during the pendency of
the aforesaid appeals.
6. By its judgment dated 30.12.2006, the Fast Track Court
sentenced accused Nos.4, 10 and 11 to undergo rigorous imprisonment
for life along with a fine of Rs.2,000/- each and in default thereof to
undergo rigorous imprisonment for two months more, for commission of
offence punishable under Section 302 read with Section 149 of the Indian
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Penal Code ('IPC', for short). Each of these accused have been
sentenced to undergo rigorous imprisonment for one year each for the
offence punishable under Section 148 IPC, rigorous imprisonment for
six months for the offence punishable under Section 323 IPC read with
Section 148 IPC and rigorous imprisonment for two months for the
offence punishable under Section 447 IPC read with Section 149 IPC.
All the sentences were directed to run concurrently.
7. By the same judgment of the Fast Track Court, accused Nos.
2, 3, 6, 7 and 8 were sentenced to undergo simple imprisonment for a
period of one year each for the offence punishable under Section 148
IPC, simple imprisonment for six months for the offence punishable under
Section 323 IPC read with Section 149 IPC and simple imprisonment of
two months for the offence punishable under Section 447 IPC read with
Section 149 IPC. All the sentences were directed to run concurrently.
8. By the judgment of the Fast Track Court, accused Nos.1 and 5
were sentenced to undergo simple imprisonment for a period of one
year each for the offence punishable under Section 148 IPC; simple
imprisonment for one year for the offence punishable under Section 324
IPC read with Section 149 IPC, simple imprisonment for six months for
the offence punishable under Section 323 read with Section 149 IPC
and simple imprisonment for two months for the offence punishable under
Section 447 IPC read with Section 149 IPC. All the sentences were
directed to run concurrently.
9. Currently, all the accused-appellants are on bail. accused No.4
and accused No.10 were granted bail vide order of this Court dated
18.08.2017; accused No.11 was granted bail by order dated 03.04.2017
and the accused Nos.2, 3, 5, 6, 7 and 8 were granted bail vide order
dated 25.10.2010.
10. Succinctly stated, the case of the prosecution is that on
19.11.1999 at about 7:00 a.m. when Md. Baju Mollik (PW-6) had gone
to plough his land, an altercation took place between him and accused
No.11. At that time, the other co-accused armed with falla, jong,
dagger, lathi etc. attacked Md. Baju Mollik. Ekkabar Ali, Md. Samad
Ali (PW-1) and Jonab Ali (PW-4) came to the place of occurrence
whereupon accused No.2 stabbed Ekkabar Ali in the abdomen with a
falla as a result of which Ekkabar Ali became unconscious and
succumbed to his injury shortly thereafter. That accused No.11 stabbed
Md. Samad Ali (PW-1) with a falla whereas accused No.8 stabbed
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PW-1 with a fishing prong. Further, accused No.5 stabbed PW-4 with a
spear. The other accused were present at the place of occurrence being
armed with deadly weapons so that no other person could come and
prevent the commission of the alleged offences.
11. An FIR/Ejahar was lodged by Md. Baju Mollik on 19.11.1999
at about 9:00 a.m. which was registered at Police Station, Barpeta being
Case No. 1022/99 under Sections 147/148/149/447/323/324/307/302 IPC.
12. After investigation by the police, a Charge Sheet was submitted
against the persons accused of the aforesaid offences.
13. The accused appeared before the Court of learned Additional
Chief Judicial Magistrate, Barpeta but as the offence punishable under
Sections 307/302 are triable by court of sessions the learned ADJ
committed the case to the Court of Sessions, Barpeta. The accused
appeared before the Court of Sessions, Barpeta but the case was
transferred to the Fast Track Court, Barpeta for adjudication.
14. Thereafter, the accused appeared before the Fast Track Court
and faced trial. Charges were framed against the accused for the
respective offences and the same were read over and explained to the
accused to which they pleaded 'not guilty' and claimed to be tried.
15. The prosecution examined altogether ten witnesses. Thereafter,
statements of the accused under Section 313 of the Code of Criminal
Procedure, 1973 ('CrPC', for short) were recorded. All the accused
denied the alleged occurrence and submitted that they were innocent
and had been falsely implicated. The accused also examined two
witnesses in support of their defence.
16. The Fast Track Court on considering the evidence on record
came to the following conclusions:
(i)
on minutely scrutinizing the evidence of PW-1 and PW-2, it
is noted that the evidence of PW-1 lends support to the
evidence of PW-2. The evidence of PWs-1 and 2 also finds
corroboration with the medical evidence. The presence of
these witnesses at the place of occurrence cannot be
doubted. The two are injured witnesses in the occurrence
and they sustained injuries on the said day. The defence
failed to impeach the credibility of these witnesses in so far
as the involvement of accused persons is concerned and
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therefore, evidence of PW-1 and PW-2 are cogent and
reliable and the same are trustworthy witnesses. The ocular
evidence of these witnesses found corroboration with the
medical evidence adduced by Dr. D.C. Sarma (PW-7) and
Dr. S.C. Sarma (PW-9).
(ii)
no doubt that there are minor variations in the evidence of
PW-6, informant of this case, with the evidence of PWs-1
and 2, but this witness has clearly implicated accused-Sahed
Ali which finds corroboration from the evidence of PWs-1
and 2. There is no ground to disbelieve the version of
PW-6 as well.
(iii)
the evidence of Inam Ali (PW-3) who is a reported witness,
Jonab Ali (PW-4) who sustained injury on his left ring finger
during the incident and Hakim Khan (PW-5) who was not
an eye-witness but saw the accused near the place of
occurrence, lends credence to the correctness of the
prosecution case.
(iv)
the Investigating Officer Biseswar Singha (PW-10)
prepared the sketch/map of the place of occurrence and
proved the same along with his signature. The sketch/map
shows that the place of occurrence is a disputed land.
Though, both the informant and the accused have claimed
the land, it transpires from the evidence of the prosecution
that the disputed land where the incident occurred was in
possession of the complainant's party. During investigation,
PW-10 also seized the weapon of assault and prepared a
seizure list which bears his signature.
(v)
the discrepancies pointed out by the learned counsel for
the defence are trivial in nature and cannot be said to have
destroyed or demolished the case of the prosecution. The
discrepancies are due to normal errors of memory or due
to lapse of time. Further, the evidence of the two defence
witnesses failed to corroborate the plea of alibi taken by
the accused.
(vi)
the defence witnesses failed to establish that the persons
accused were not present at the place of occurrence at the
time of the incident and that they did not kill the deceased
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person. The reports of the doctor show that the deceased
was killed at 7 or 8 a.m. and the FIR was lodged promptly.
All the accused were named in the FIR. The parties were
known to each other. Thus, it is proved that all the accused
came to the place of occurrence being armed with deadly
weapons such as falla, lathi, surki, etc. by forming an
unlawful assembly. Out of them, accused Md. Sahed Ali,
Md. Jabbar Ali and Md. Hasan Ali assaulted PW-1 with a
blunt object; accused-Md. Yunush Ali and Md. Tabibor
Rahman assaulted PW-2 with a sharp pointed weapon;
accused-Md. Ajmot Ali assaulted PW-4 and accused Md.
Sahed Ali assaulted PW-5. accused-Md. Jabbar Ali, Md.
Sahed Ali and Md. Moyan Ali gave a fatal blow to Ekkabar
Ali as a result of which he died. The weapons used by the
accused were dangerous weapons which clearly indicate
that the accused had an intention to kill Ekkabar Ali. Thus,
all the accused were held guilty and were convicted and
sentenced by the Fast Track Court as has already been
mentioned above.
17. In the criminal appeal filed by the accused before the High
Court, on considering the submissions made on their behalf as well as
the State, the High Court noted as under:
(i)
the evidence of PW-1, PW-2 and PW-5 make it clear that
to prevent PW-6 from ploughing the land where the
occurrence took place, the accused had come to the land in
question armed with dangerous weapons like lathi, fishing
prong, falla and surki. An assembly of the accused persons
(who were more than five) was formed on the day of
occurrence and deposition of these witnesses make it clear
that the persons accused had intended to take possession
of the land on which PW-6 was ploughing and to prevent
him from further ploughing the land. The prosecution has
successfully established formation of an unlawful assembly
with a common object.
(ii)
the evidence of PW-1, PW-2, PW-5 and PW-6 make it clear
that when the deceased Ekkabar Ali tried to intervene in
the matter, injuries were caused on his abdomen with a
sharp weapon, resulting in his death and the same were
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caused at the instance of accused-Md. Sahed Ali. The
causing of injuries was in furtherance of the common object
of unlawful assembly formed by the accused persons. While
it is correct that the evidence of the witnesses are at variance
as regards which one of the accused had inflicted injury on
the abdomen of the deceased, the said fact will not be very
relevant if liability is otherwise attributable by virtue of the
provisions of Section 149 of the IPC. Thus, it was held that
Md. Jabbar Ali, Md. Sahed Ali and Md. Moyan Ali, being
members of an unlawful assembly were liable for causing
the death of (deceased) Ekkabar Ali.
(iii)
it is an established principle of law that evidence tendered
by different prosecution witnesses have to be considered
as a whole and such evidence cannot be put in different
compartments and considered separately. The appreciation
must be of the totality of the evidence brought on record by
different witnesses. While it is correct that PW-6 had
implicated only four of the accused persons, the evidence
of the said witness cannot be construed to be another version
of the prosecution case. The evidence of PW-6 is
supplementary and not in derogation of the evidence of other
prosecution witnesses examined in the present case.
(iv)
the injuries suffered by PW-1, PW-2, PW-4 and PW-5 are
fully corroborated by the evidence of PW-7 and PW-9 as
well as the reports of the injuries exhibited by the prosecution
witnesses.
(v)
the evidence of PW-10 established that PW-6 had given
the land for cultivation on 'adhi' basis and that the accused
person's right to possess the land is also not established.
(vi)
there was no fault with the conviction and sentence of the
accused passed by the Fast Track Court under Section 447
of IPC read with Section 149 of IPC. That when all the
persons accused in the instant case had formed an unlawful
assembly and the death of Ekkabar Ali was on account of
injuries caused by some members of the unlawful assembly,
the Fast Track Court convicted only three out of eleven
accused under Section 302 of IPC read with Section 149
of IPC and the others were acquitted of the said charges.
MD. JABBAR ALI & ORS. v. THE STATE OF ASSAM
[B. V. NAGARATHNA, J.]
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That the reason for such acquittal was not clear, however,
since the acquittal of the said accused was not challenged,
the High Court refrained from getting further into the said
question.
(vii)
the judgment and sentence passed by the Fast Track Court
in respect of each person accused was thus upheld and
affirmed wholly.
18. We have heard Sri Raj Kishor Choudhary, learned counsel for
the appellants-accused and Sri Shuvodeep Roy, learned counsel for the
respondent-State and perused the material on record.
19. Learned counsel for the appellants submitted that the High
Court was not right in confirming the judgment of conviction and sentence
passed by the Fast Track Court. The counsel for appellants further
contended that the impugned judgments of the Courts suffer from legal
as well as factual infirmities and the findings therein are perverse and
are to be set-aside and the appellants are liable to be acquitted.
20. The details of the submissions put forth by the learned counsel
for the appellants-accused can be epitomised as under:
20.1
there was no evidence to show any alleged unlawful
assembly, rioting, murder and all the alleged offences have
been falsely fabricated by the Investigating OfficerBiseswar Singha (PW-10). The case of the appellants is
that they were neither present nor participated in the alleged
occurrence.
20.2
the investigation by PW-10 was not done as required by
law. It was urged by the counsel for the appellants that the
prosecution stated that 100 to 150 people gathered at the
place of occurrence. However, the prosecution failed to
examine any independent and impartial witness. The
witnesses examined were under the influence of PW-10
who falsely implicated the appellants. Further, the witnesses,
PW-1 to PW-6, who were examined by the prosecution,
were related to each other. There are material
contradictions in the contents of the FIR and depositions
made by the witnesses. The charge sheet submitted by PW10 did not bear his signatures. The land documents of the
appellants were not verified by PW-10 as the same was
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essential to do so. PW-10 has been negligent in performing
his duty and did not carry out the investigation in a proper
manner.
20.3
the Courts below failed to note that dispute pertained only
regarding land and the ingredients of offence under Section
149 of the IPC were not made out and, as such, the
conviction was bad in law. Since the offence under Section
149 of the IPC was not made out, accused Nos. 4, 10 and
11 could not have been convicted under Section 302 of the
IPC. There is no clear version as to who gave the fatal
blow to the deceased.
20.4
the Courts below ought to have considered the cardinal
principle of the administration of criminal justice i.e.,
presumption of innocence of the accused. In the present
case, nothing was proved beyond reasonable doubt and the
Courts below were not justified in depriving the accused
persons of the benefit of doubt.
21. Per contra, learned counsel appearing for the respondentState supported the impugned judgment and order passed by the High
Court and the Fast Track Court and contended that the Courts below
have rightly perceived and assessed the evidence on record.
22. The submissions of the learned counsel for the respondentState can be summarised as under:
22.1
the present case is a case of clinching evidence and the
involvement of the accused in the offence has been proven
beyond reasonable doubt by the prosecution on the strength
of the depositions of injured eye-witnesses being PW-1, PW2, PW-4 and PW-5 which has been corroborated by medical
evidence duly proved on record.
22.2
both the Courts below have concurrently held that the minor
discrepancies in the deposition of PW-6 does not demolish/
destroy the consistent depositions of PW-1, PW-2, and PW5. The same is actually supplementary and not in derogation
of the evidence of other prosecution witnesses. The
discrepancy regarding who stabbed the deceased does not
negate the value of the testimonies of PW-1 and PW-2 as it
does not go to the root of the matter. As long as the evidence
MD. JABBAR ALI & ORS. v. THE STATE OF ASSAM
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contains a ring of truth, it cannot be discarded on account
of existence of discrepancies. The learned counsel for
respondent-State contended that this Court has settled the
principles relating to treatment of evidence when
discrepancies are alleged and relied on the judgments of
this Court in (i) Sohrab v. State of Madhya Pradesh (1972)
3 SCC 751, (ii) Bharwada Bhoginbhai Hirjibhai v. State
of Gujarat (1983) 3 SCC 217, (iii) State of U.P. v. M.K.
Anthony (1985) 1 SCC 505, (iv) Prithu @ Prithi Chand
v. State of Himachal Pradesh (2009) 11 SCC 588 and
(v) State of Madhya Pradesh v. Chhaakki Lal (2019)
12 SCC 326.
22.3
 the plea of alibi as claimed by the accused has not been
sufficiently proven by the defence. It was contended by
the learned counsel for the State that in respect of plea of
alibi, Section 11 and Section 103 of the Evidence Act, 1872
are relevant. Further, the plea of alibi must be proved with
absolute certainty so as to completely exclude the possibility
of the presence of the person concerned at the place of
occurrence. Neither DW-1 nor DW-2 confirmed the
presence of accused Md. Sahed Ali in his house or the
alleged incident of dacoity at his alibi. The alibi is weak
and does not create a contradiction to the facts presented
by the prosecution. Learned counsel for the respondentState placed reliance on Dudh Nath Pandey v. State of
Uttar (1981) 2 SCC 166, Jitender Kumar v. State of
Haryana (2012) 6 SCC 204 and State of Maharashtra
v. Narsingrao Gangaram Pimple (1984) 1 SCC 446.
23. Having heard the learned counsel appearing for the respective
parties, the following points would arise for our consideration:
(a)
Whether the High Court was justified in confirming the
judgment of conviction and sentence awarded to the
appellants-accused by the Fast Track Court?
(b)
Whether the judgment of the High Court calls for any
interference or modification by this Court?
(c)
What order?
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24. Before proceeding further, it would be useful to recall the
approach to be adopted while deciding an appeal against conviction by
the Trial Court as well as by the High Court.
25. Section 374 of the CrPC deals with appeals from convictions.
Though it is a settled law that this Court shall not reassess the evidence
at large and come to fresh opinion as to the innocence or guilt of the
accused so as to interfere with the concurrent findings of the Courts
below, however this Court may interfere in certain cases. One such
case is when there has been an improper reception or rejection of
evidence, which, if discarded or received would leave the conviction
unsupportable. This Court may also interfere in a case where there has
been a misreading of vital evidence or the Court omits to notice the
important points in favour of the accused. {See Saravanabhavan v.
State of Madras AIR 1966 SC 1273}
26. Where the finding of fact by the High Court is perverse,
inadequate and had resulted in miscarriage of justice, this Court may
itself hear the appeal on the evidence instead of remanding the case to
the High Court for a reconsideration of the evidence when the latter
course would lead to unnecessary delay or hardship. {Kashmira Singh
v. State of Madhya Pradesh AIR 1952 SC 159}
27. In order to appreciate the arguments advanced by the learned
counsel for the rival parties and to determine the correctness of the
conclusions recorded in the judgments passed by the High Court and the
Fast Track Court, it will be necessary to discuss the evidence adduced
by the witnesses examined by the prosecution as well as the defence.
28. PW-1- Md. Samad Ali, is one of the persons allegedly injured
in the occurrence. The deceased Ekkabar Ali was his cousin (paternal
uncle's son). According to him, at about 7:00 a.m. on the day of
occurrence, PW-6 had gone to plough his field when Md. Sahed Ali took
the other accused persons to the field of PW-6. Seeing the persons
accused go to the field of PW-6, PW-1 along with the deceased Ekkabar
Ali, PW-2 and PW-3 also came to the field. As per this witness, Md.
Sahed Ali exhorted the rest of the accused to assault the other persons
whereupon accused Md. Ajmat Ali stuck PW-1 in the left arm with a
fishing prong whereas accused Md. Hasan Ali tried to stab him in the
abdomen with a falla, as a result of which he sustained injury in his left
hand. This witness further deposed that Md. Jabbar Ali stabbed the
deceased Ekabbar Ali in the lower abdomen with a surki (spear)
MD. JABBAR ALI & ORS. v. THE STATE OF ASSAM
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whereupon the deceased fell down. PW-1 also deposed that injuries
were caused to PW-2 and PW-4 and that injured Ekkabar Ali was taken
to the house of Barek Bepari where he died. In his cross examination,
PW-1 stated that his house is situated at a distance of half a kilometer
from the place of occurrence and that Md. Sahed Ali had forcibly taken
possession of the land on which the occurrence took place. PW-1 stated
that PW-6 is the husband of his niece. PW-1, in his cross examination,
further stated that the police did not interrogate him at the place of
occurrence. He further stated that some 15-20 people were present at
the place of occurrence and that PW-6 was ploughing Md. Sahed Ali's
land. The quarrel took place when Md. Sahed Ali objected to the said
act of ploughing his field. PW-1 stated that he did not tell the police
about Mr. Jabbar Ali stabbing him in the arm and that Md. Ajmot Ali did
it. As per his statement in the cross-examination, he did not tell the police
that Md. Tabibor Rahman stabbed him in the right arm. PW-1 stated
that he did not tell the police about Md. Jabbar Ali stabbing Ekkabar Ali
since the police did not ask him. In his cross-examination, PW-1 stated
that it was only when Ekkabar Ali's body was taken from the place of
occurrence that he came to know about Md. Jabbar Ali stabbing Ekkabar
Ali. PW-1 further refused that he had any land near PW-6's land or Md.
Sahed Ali's land.
29. PW-2- Md. Baseruddin is another witness who got injured in
the course of the occurrence who has stated that deceased Ekkabar Ali
was his paternal uncle and that at about 7:00 a.m. while walking on the
road, he heard a hue and cry at the place of occurrence. When PW-2
reached the spot of occurrence, he found all the accused persons present
with lathi, falla, hanna, surki etc. and the accused persons were
quarrelling with PW-6 over ploughing the land. PW-2 deposed that he
had requested the parties not to quarrel. He deposed that at the time of
incident, Md. Sahed Ali exhorted the other accused to stab PW-2. The
deceased Ekkabar Ali was infront of him and that Md. Moyan Ali caught
hold of Ekkabar Ali while accused Md. Jabbar Ali stabbed Ekkabar Ali
in the lower abdomen with a surki. He deposed that accused Md. Yunush
Ali hit him on the upper dorsal side of his right hand with a faska whereas
accused Md. Tabibor Rahman had struck him with a falla on the upper
dorsal side of his left hand. By seeing this he fled away from the place
of occurrence. The accused Md. Ajmot Ali and Md. Hasan Ali injured
PW-1 on his hand and arm. That Ekkabar Ali was carried to the house
of Barek Bepari where he died and that he underwent treatment for his
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injuries. In his cross-examination, the place of occurrence of the incident
belonged to one Rezzak Ali and that the patta is in his name. He stated
that he had no knowledge whether the name of accused Md. Sahed Ali
was mutated in the patta or not. He rushed to the place of occurrence
after 10-15 minutes wherein 50-60 people gathered there. PW-2 stated
Ekkabar Ali sustained injury in the right side of his lower abdomen and
that he sustained only one injury. PW-2 further stated in his crossexamination that he did not know if the people were aware of this incident.
30. PW-3-Md. Inam Ali is the brother of deceased Ekkabar Ali
who deposed that at about 7:00 a.m. on the day of occurrence, when he
had been ploughing the field, a young boy came and informed him of the
incident. He deposed that he went to the place of occurrence and found
his elder brother Ekkabar Ali lying dead. According to him, PW-4 informed
him that Md. Moyan Ali had killed Ekkabar Ali and further that PW-4
and PW-1 were injured by Md. Ajmot Ali. Immediately, on his arrival at
the place of occurrence, the accused persons ran away from there. In
his cross-examination, PW-3 stated that the land on which occurrence
took place is an annual patta land and that he did not know the dag and
patta numbers of the land. He refused that he knew the boundaries of
the land. He stated that he had also seen some Moslem ploughing the
field on which incident took place and that he had been ploughing his
land which some 2-3 bighas away from the place of occurrence. On his
arrival on the place of occurrence, he did not notice who were present
there and that the accused persons ran away. The accused persons
have separate homesteads. PW-3, in his cross-examination further stated
he told the police that PW-4 told him that Md. Moyan Ali assaulted
Ekkabar Ali. The two parties fought over possession of land and that on
the day of occurrence itself, Md. Sahed Ali filed a case against them
(Jonab, Raju Mallik and Baser) alleging looting of his house
31. PW-4-Md. Jonab Ali is another brother of the deceased. He
deposed that at about 7:00 a.m. on the day of occurrence, he was
ploughing his land which is at a short distance from the place of
occurrence. Seeing 100-150 people gathered at the place of occurrence,
he went to the place of occurrence. Md. Ajmot Ali tried to hit him with
a faska, as a result of which, he fell on the ground and on standing up he
saw 4-5 men carrying Ekkabar Ali. He also saw injury on the abdomen
of Ekkabar Ali who, according to him, was assaulted by Md. Hasan Ali.
In his cross-examination, he stated that deceased Ekkabar Ali and
MD. JABBAR ALI & ORS. v. THE STATE OF ASSAM
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PW-6 had a quarrel over possession of the land. He did not see injury on
anyone at the place of occurrence except for on Ekkabar Ali. As per
this witness, PW-2 came to the place of occurrence afterwards. He did
not know the name of the persons who told him that Md. Hasan Ali had
assaulted Ekkabar Ali and that he did not tell that to the police. In his
cross-examination, PW-4 makes a mention of some other quarrel that
took place between the two groups at some place 10-15 bighas away
from Md. Sabed Ali's house. He also made a mention of the case filed
against them alleging dacoity being committed by them in Md. Sabed
Ali's house. In his cross-examination, PW-4 stated that he cannot say if
the accused persons were present at the place of occurrence. PW-1
and PW-3 are his brothers and PW-6 is the husband of his niece.
32. PW-5- Md. Hakim Khan, who is the brother-in-law of deceased
Ekkabar Ali, in his deposition stated that at about 8:00 a.m. on the day of
occurrence, he was going home on a bicycle after purchasing some
fertilizer. As per this witness, Md. Sahed Ali, Md. Tabibur Rahman, Md.
Sabed Ali, Mustt. Chanderbhanu, Mustt. Hazarabhanu and Md. Yunus
Ali came together towards him and said 'Ekkabar Ali' is finished. Catch
this one'. According to him, Md. Sahed Ali hit him on his right shoulder
with a lathi, as a result of which, he fell down and became unconscious
and was taken to the hospital by his eldest son Anowar Khan, son-inlaw and his wife. PW-5 stated that Ekkabar Ali sustained injuries in his
right kidney. In his cross-examination, this witness stated that he was
attacked and injured near the house of one Jittu Ali at Keotpara. The
incidents of assault took place at two places. the distance between the
places where he was attacked and Ekkabar Ali was killed is one furlong.
This witness stated that he did not know what the rest of the accused
persons had done other than running towards him and attacking him.
The cause of quarrel was unknown to him. In his cross-examination,
this witness stated that he did not tell the police about the accused persons
assaulting Ekkabar Ali.
33.