REPORTABLE

                  IN THE SUPREME COURT OF  INDIA             CRIMINAL APPELLATE JURISDICTION   

             CRIMINAL APPEAL NO. 1645   OF 2007

MD. ALI HAIDER & ORS. ..  APPELLANT(S)

vs.

STATE OF ASSAM ..  RESPONDENT(S)

WITH  

CRIMINAL  APPEAL  

NO............OF  2009 (Arising out of SLP(Crl.No. 2182/2008)

MD. AMJAD ALI ..  APPELLANT(S)

vs.

STATE OF ASSAM ..  RESPONDENT(S)

O R D E R

Leave granted.

This appeal is directed against the judgment of the  

Assam High Court dated 14/12/2006 whereby the conviction of  

the appellants recorded by the Sessions Judge under Section  

302/34 of the IPC has been confirmed by the High Court.

As per the prosecution story at about 11.30 p.m. on  

the night of 11th October, 1999 four persons, the appellants  

herein, entered the house of Khalilur Rehman and committed  

his murder.  The motive for the offence apparently was a  

land dispute between the deceased and the appellants. The  

incident  was  witnessed  by  Atabjan  Nessa  PW.1  and  Saida  

Khatun  PW.3,  the  wife  and  daughter  of  the  deceased  

respectively. The alarm raised by them attracted several  

other persons including Md. Moinul Haque (PW.6) a relative

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and neighbour of the deceased and his father Dilowar (PW.2)  

and several other persons as well. On  the  information  

received  by   Md.  Moinul  Haque  (PW.6)  he  rushed  to  the  

police station and lodged the report a short time later.  

Sadananda Hazarika (PW.8) the Investigating Officer and the  

Station House Officer of Police station Abhayapuri reached  

the  place  of  incident  early  next  morning  and  made  the  

necessary  inquiries.  As  he  suspected  that  the  four  

appellants had been involved in the murder he made a search  

for them but without success.  He also seized various items  

relevant to the investigation from the place of incident  

and sent the body for the post-mortem examination which was  

carried out on the next day and it is found that the death

had  been  caused  by  the  severence  of  the  neck  of  the  

deceased.  On  the  completion  of  the  investigation  the  

appellants  were  charged  for  an  offence  punishable  under  

Sec.302/34 of the IPC and as they pleaded not guilty they  

were brought to trial.

The trial Court relying on the evidence of PWs. 1  

and  3,  the  wife  and  daughter  of  the  deceased,  as  

corroborated by the evidence of PWs.2,4,5,6,7 and 8 held  

that  the  case  against  the  accused  appellants  had  been  

proved.  The plea of the defence that the FIR and the  

inquest  proceedings  recorded  on  the  next  day  did  not  

contain the names of the assailants was explained away by  

observing that PW.1 had been rendered unconscious at the  

time of the murder and had not been in a position to give

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all  details  as  to  the  incident.   For  arriving  at  this  

conclusion the trial Court relied on the evidence of Moinul  

Haque (PW.6) who had deposed that PW.1 had been rendered  

unconscious and had remained in that position till the next  

morning. The Court also found that the four assailants had  

arrived in the residential house of the deceased at dead of  

night to settle scores over the land dispute and as such  

the common intention to commit murder had also been proved.  

An appeal was thereafter taken to the High Court which has  

by its judgment dated 14/12/2006 confirmed the decision of  

the trial Court.  It is in this situation that these two

matters are before us.   

Mr.  A.H.Laskar,  the  learned  counsel  for  the  

appellants, has raised primarily one issue before us.  He  

has pointed out that the observation of the trial Court and  

the  High  Court  that  the  statements  of  PWs.1  and  3  had  

precedence over any other evidence and could not be ignored  

under any circumstance was erroneous as the parties were  

well known to each other being immediate neighbours but had  

still not been named in the FIR and inquest proceedings.  

The learned counsel seeks to draw the inference that though  

the  incident  did  happen  at  the  time  alleged  but  the  

assailants had not been identified at that time and it was  

thereafter on suspicion that they had been roped in.  

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Mr.  JR.  Luwang,  the  State  counsel  has,  however,  

urged that the statements of PWs. 1 and 3 could not be  

disbelieved for the simple reason that the incident had  

happened in the residential house and the presence of the  

family at dead of night was natural and that there was no  

occasion to involve the present appellants in a false case.  

We  have  considered  the  arguments  of  the  learned  

counsel.  PW.1 is the star witness in this case.  As per  

her statement in Court many people had gathered at night

soon  after  the  incident  on  the  alarm  raised  by  her  

including PW.2 Dilawar the scribe of the FIR, Siddique Ali  

(PW.4) and Moinul Haque (PW.6) the persons who had actually  

lodged  the  FIR.   PW.1-further  stated  that  the  complete  

details of the incident had been conveyed by her to PW. 2  

and  PW.6  before  the  FIR  had  been  lodged.   She  further  

stated  that  the  Police  had  also  reached  the  place  of  

incident  during  the  night  itself  and  recorded  the  

statements of several other witnesses. She further went on  

to say that soon after the police arrived in the village  

they took Moksed, Sabed, Sattar, Gafur and others to the  

police station but they were subsequently released and the  

present  accused  appellants  were  arrested  thereafter.  We  

find  that  in  the  face  of  this  evidence   that  the

information with regard to the assailants had been conveyed  

by PW.1 to PW.6 yet the FIR and the inquest report referred  

to unknown assailants, proves that the assailants had not  

been identified by PWs. 1 and 3.  We also see from the  

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record that the inquest report had been signed by all the  

persons who had arrived at the place of murder soon after  

the incident on the alarm raised by PW.1.  These persons  

are PW.4 PW.6, PW.7 PW.2 and PW.5.

It is therefore apparent that up to the stage of  

recording of the inquest proceedings on the 12th October,  

1999, the names of the assailants were not known.  The

statement of PW.3 is also extremely relevant in so far as  

the defence is concerned.  She stated that PW. 2 was the  

first to arrive in the house and that she had told him  

every thing and that he had then left the house for a short  

while and returned to that place again.  She further stated  

that her statement had been recorded on the night of the  

incident itself.  PW.3 (who was at the time of the incident  

about 15 years of age) also claimed to have conveyed all  

information to PW. 2 but we find that though he was the  

scribe  of  the  FIR,  the  names  of  the  killers  were  not  

entered therein.  We have also gone through the evidence of  

PW.6  the  first  informant.   He  is  the  only  person  who  

deposed  that  the  names  of  the  assailants  had  not  been  

divulged by PW.1  for the reason that she was unconscious

as  her  husband  had  been  brutally  murdered.  As  already  

pointed out above, PW.1 has not for a moment  stated that  

she had been unconscious and on the contrary she testified  

that she had informed  PW.2 and PW.6 about the names of the  

assailant and given other details of the incident to him.  

The defence has also relied on the evidence of PW.7 Md.  

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Sofiul Haque, the neighbour of both the parties.  As a  

matter  of  fact  this  witness,  though  cited  by  the  

prosecution, had virtually destroyed the prosecution story  

but was not declared hostile.  He categorically stated that  

PW.1 did not disclose the names of the assailants either

before him or to the others.   This glaring contradiction  

further  strengthens  Mr.  Laskar's  submission  that  the  

prosecution  was  groping  around  and  on  suspicion  had  

involved the appellants.  In view of the above observations  

we are of the opinion that the statements of PWs. 1 and 3  

cannot be relied upon.

The trial court as also the High Court have referred  

to  the  fact  that  the  accused  had  absconded.   For  this  

observation reliance has been placed on the statements of  

PW.8 the Investigating officer.  We find from his evidence  

that PW. 8 had made a very casual search for the accused.  

On the contrary it has come in the evidence of Md. Sofiul  

Haque (PW.7) who testified in his cross-examination that

after he had arrived at the place of incident the four  

appellants too had arrived at that place.  The prosecution  

story that the accused had absconded is also, therefore,  

clearly in doubt. We, accordingly, allow these appeals, set  

aside  the  judgments  of  the  courts  below  and  order  the  

acquittal of the appellants.

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We  are  informed  that  the  appellants  in  

Crl.A.No.1645/2007  are  on  bail;  their  bail  bonds  shall

stand discharged.  Appellant Amjad Ali, who  is in custody,  

is directed to be released forthwith if not required in any  

other case.

                     .................J.          (HARJIT SINGH BEDI)

.................J.                                      (DEEPAK VERMA) New Delhi, December 2, 2009.