SAMSUL HAQUE versus THE STATE OF ASSAM on 26 August 2019

[2019] 11 S.C.R. 1 [2019] 11 S.C.R. 229

SAMSUL HAQUE

v.

THE STATE OF ASSAM

(Criminal Appeal No.1905 of 2009)

AUGUST 26, 2019

[SANJAY KISHAN KAUL AND K. M. JOSEPH, JJ.]

Penal Code, 1860: s.302 – Prosecution case was that thevictim-deceased was sitting in a tea stall on the fateful day, whenthe first six accused entered and accused no.2 and 3 all of a suddenstarted firing at the deceased with a pistol, while the other accusedstarted stabbing and hacking him with daggers, swords etc. andthe incident occurred at the instigation of accused nos.7, 8 and 9 –Son of the deceased (PW-3) lodged FIR stating that he was presentat the site along with other witnesses and tried to resist the accused– They were threatened with pistol and to save their life, they ranaway – Trial court found that accused no.1 who died duringpendency of trial was the main accused – Instant appeals filed byaccused nos. 2, 3 and 9 against conviction by High Court – Held:PW-1, the only independent witness present at the time of occurrencedid not implicate accused No.9 nor assign any role to him – As perhis deposition, he did not even see him at the site – The manner inwhich court put the case to accused No.9, and recorded his statementunder s.313 of the Cr.P.C. was also perfunctory – The inconsistenciesin the testimonies created a doubt in the case of the prosecutionqua any role of accused No.9 – Thus, prosecution was not able toestablish case against him much less beyond reasonable doubt –Accused No.9 is, therefore, entitled to acquittal – With regard toaccused Nos.2 and 3, order of trial court showed that what hasweighed in acquitting these two accused was the fact that in thetestimony of the Doctor (PW-5), who performed the post-mortemexamination on the body of the deceased, a number of injuries werefound, caused by sharp pointed objects – In the cross-examination,PW-5 specifically stated that none of the injuries was a gun-shotinjury – Thus, medical evidence suggested use of daggers and asword – The plea of the prosecution was that the gun used by thesetwo accused (as according to the role assigned to them) may have

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Abeen used only to scare away the persons – The testimony of PW-6that he saw the gun being fired, but could not make out whether abullet hit the deceased or not was taken into account, but, in thecontext of the overall testimony of the eye-witnesses, the story setforth by the prosecution and the witnesses was found to be believableby the High Court – However, this story did not deal with the saidBaspects noted by the trial court, i.e., no bullet injury, the weaponnot being recovered, no bullets or bullet marks being found at theplace of occurrence and the inconsistencies in the testimonies ofthe witnesses – Trial court rightly observed that it was accused No.1who was the main accused, who was subsequently murdered –CInsofar as the statement of accused No.2, under s.313 of the Cr.P.C.was concerned, the testimonies of PW-3, PW-4 and PW-6 all wereput to him but the said accused claimed absence from the place ofthe occurrence – In case of accused No.3, once again, the testimoniesof all the three eye-witnesses were put to him, but the role sought to be assigned to him was stated to be a hit with the dagger, and notDthe role at the accused as set out in the FIR – The subsequenttestimonies, however, sought to assign a different role than the oneassigned in the FIR, bringing about an inconsistency – Theprosecution was not able to prove the case beyond reasonable doubtagainst these two accused – Accused Nos.2 and 3 respectively, areEentitled to the benefit of doubt and are also acquitted.

Allowing the appeals, the Court

Conclusion

HELD: 1.1 PW-3 in his complaint stated that the incidenttook place at the instance and instigation of accused No.9 alongwith accused Nos.7 and 8. However, in his deposition, it was statedFthat these persons asked the other accused to catch hold of thedeceased. This by itself, would not be fatal for the case of theprosecution. Similarly, there was some variation between whatexactly these three persons stated, as available from thetestimonies of even PW-4 and PW-6. However, the crucial aspectGis that PW-1, the only independent witness, did not even implicateaccused No.9, much less assign any role to him. DW-1, who wasnot produced as a witness by the prosecution, though was statedto be present at the place of occurrence, was examined by thedefence and deposed against the main accused (accused No.1)and others, while not assigning even the factum of presence toHaccused No.9. Even when the prosecution sought to cross- examine the said witness, the case of the prosecution was put asif only accused No.7 ordered the other accused persons to assaultthe deceased. Had accused No.9 played a role, that would logicallyhave been put to DW-1 by the prosecution. [Paras 19, 20] [238-D-G]

State of Orissa v. Arjun Das Agarwal & Anr. AIR 1999SC 3229 : [1999] 1 Suppl. SCR 442 ; Asraf Ali v. Stateof Assam (2008) 16 SCC 328 : [2008] 10 SCR 1115 –relied on.

1.2 The manner in which the court put the case to accusedNo.9, and the statement recorded under Section 313 of the Cr.P.C.was perfunctory. The incriminating material is to be put to theaccused so that the accused gets a fair chance to defend himself.This is in recognition of the principles of audi alteram partem.The inconsistencies in the testimonies also created a doubt inthe case of the prosecution qua any role of accused No.9. Theappellate court could hardly have overturned the acquittal of thetrial court into one of conviction. The trial court took note of theclose relationship of PW-3, PW-4 and PW-6 to the deceased, asalso the array of the accused and the murder of accused No.1, tocome to the conclusion that the abetment of accused No.9, asalleged, had not been proved beyond reasonable doubt. Therewas no evidence that accused No.9 was inside or outside KaliaHotel at the time of the occurrence. The prosecution was notable to establish a case against accused No.9, much less beyondreasonable doubt. [Para 21, 22, 24, 25] [239-A-B; 240-D-F; 241-A]

2.1 With regard to accused Nos.2 and 3, the order of thetrial court showed that what has weighed in acquitting these twoaccused was the fact that in the testimony of the Doctor (PW-5),who performed the post-mortem examination on the body of thedeceased, a number of injuries were found, caused by sharppointed objects. In the cross-examination PW-5 specifically statedthat none of the injuries was a gun-shot injury. Thus, the medicalevidence suggested the use of daggers and a sword. The plea ofthe Public Prosecutor was that the gun used by these two accused(as according to the role assigned to them) may have been usedonly to scare away the persons. However, there was no seizure A

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Aof arms. PW-6 also did not see the firing of the gun, though heclaimed to have heard the gun-shots though PW-3 and PW-4stated that they saw the firing. The anomaly is that all the accusedwere standing together. [Para 28] [241-C-E]

2.2 The testimony of PW-6 that he saw the gun being fired,Bbut could not make out whether a bullet hit the deceased or notwas taken into account, but, in the context of the overall testimonyof the eye-witnesses, the story set forth by the prosecution andthe witnesses was found to be believable by the High Court.However, this story did not deal with the said aspects noted bythe trial court, i.e., no bullet injury, the weapon not beingCrecovered, no bullets or bullet marks being found at the place ofoccurrence and the inconsistencies in the testimonies of thewitnesses. The trial court rightly observed that it was accusedNo.1 who was the main accused, who was subsequently murdered.Insofar as the statement of accused No.2, under Section 313 ofDthe Cr.P.C. was concerned, the testimonies of PW-3, PW-4 andPW-6 all have been put to him but the said accused claimedabsence from the place of the occurrence. As far as accusedNo.3 is concerned, once again, the testimonies of all the threeeye-witnesses have been put to him, but the role sought to beassigned to him is stated to be a hit with the dagger, and not theErole of firing at the accused as set out in the FIR. The subsequenttestimonies, however, sought to assign a different role than theone assigned in the FIR, bringing about an inconsistency. Theview taken by the trial court is, at least, a plausible view thoughthat may not be the only plausible view or if one may say even theFless probable one. The prosecution was not able to prove thecase beyond reasonable doubt against these two accused, andthey must get the benefit of doubt and consequently have to beacquitted. Accused No.9 is entitled to acquittal. Accused Nos.2and 3 respectively, are entitled to the benefit of doubt and areconsequently acquitted. [Paras 31-35] [241-H; 242-A-G]GBabu v. State of Tamil Nadu (2013) 8 SCC 60 – heldinapplicable.

Sharad Birdichand Sarda v. State of Maharashtra(1984) 4 SCC 116: [1985] 1 SCR 88; Hate SinghHBhagat Singh v. State of Madhya Bharat AIR 1953 SC

468 ; Sujit Biswas v. State of Assam (2013) 12 SCC 406: [2013] 3 SCR 830; Shivaji Sahabrao Bobade v. Stateof Maharashtra (1973) 2 SCC 793 : [1974] 1 SCR489 ; Sunil Kumar Sambhudayal Gupta (Dr.) v. State ofMaharashtra (2010) 13 SCC 657 : [2010] 15 SCR 452

– referred to.

Case Law Reference

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 1905 of 2009.

From the Judgment and Order dated 12.02.2009 of the High Courtat Guwahati in Criminal Appeal No. 174 of 2002

With

Criminal Appeal No. 246 of 2011.

R. K. Dash, Sr. Adv., Suchit Mohanty, Ms. Vandana Mohanty,Rahul Pratap, Bijan Ghosh, Ujjwal Banerjee, Asit Kumar Rari,Mrs. Sarla Chandra, Debojit Borkakati, Vivek Sonkar, M/S. CorporateLaw Group, Shuvodeep Roy, Advs. for the appearing parties.

The Judgment of the Court was delivered by SANJAY KISHAN KAUL, J.

1. The incident is of 17.3.1997 at 7:00 a.m. in the morning.Keramat Ali Maral (the deceased) was having tea at the tea stall knownas Kalia Hotel. It is alleged that Abdul Hai, Abdul Rashid, Imdadul Islam,Rahul Amin, Mofizuddin Islam and Abdul Rahim Faruki, being the firstsix accused entered the stall and all of a sudden accused Nos.2 & 3fired at Keramat Ali with a pistol, while the other accused injured him bystabbing and hacking with daggers, swords, etc. Keramat Ali is stated tohave died on the spot. The son of Keramat Ali, Nazrul Islam (PW-3)

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Alodged the FIR, stating that he was present at the site along with otherwitnesses, but when they offered resistance, they were threatened withpistols. To save their life, they ran away from the site. Insofar as accusedNos.7, 8 & 9 are concerned, it is stated that “further it may be mentionedthat the incident took place at the instance and instigation of accusedNos.7, 8 and 9.”B

2. On the investigation being completed, a charge-sheet was filedand charges were framed by the Sessions Judge under Sections 147,148, 302/149 and 302 of the IPC against all. Accused Nos.7 to 9 facedcharges under Sections 302/109 of the IPC. In the course of trial, accusedNo.4, Rahul Amin, absconded. Accused No.1, Abdul Hai, died/ wasCallegedly murdered during the course of trial. On completion of trial theSessions Judge, Morigaon found that accused No.1 was the main culpritwho had killed the deceased, Keramat Ali. The trial court also foundthat the guilt of accused Nos.5 & 6 was also established beyondreasonable doubt.D3. The convicted accused filed an appeal before the Gauhati High D3. The convicted accused filed an appeal before the Gauhati HighCourt and so did the State of Assam qua the accused who had beenacquitted. The appeal of the convicted accused was dismissed by theHigh Court and the Special Leave Petition (‘SLP’) filed against thesame was also dismissed and, thus, that matter attained finality.E4. The impugned judgment dated 12.2.2009 deals with the appealof the State and has reversed the judgment of the trial court convictingthe five accused.

5. Accused No.9, Samsul Haque has filed Crl. Appeal No.1905/2009, while Abdul Rashid (accused No.2) and Imdadul Islam (accusedFNo.3) filed Crl. Appeal No.246/2011. It is these three accused who arebefore us.

6. We have heard Mr. R.K. Dash, learned Senior Counsel foraccused No.9, Mr. Bijan Ghosh, learned counsel for accused Nos.2 & 3and learned counsel for the State, Mr. Debojit Borkakati who took usGthrough the record before us. We have also perused the trial courtrecord.

7. We would first deal with the witnesses produced by theprosecution to prove their case. Four witnesses were projected as eye-witnesses to the occurrence, viz., Taher Ali (PW-1); Nazrul Islam (PW-H3), who is the son of the deceased and the informant; Sorhab Ali (PW-

4), brother of the deceased; Mozammil Hussain (PW-6), son of the elderbrother of the deceased. While three of the witnesses are relatives,PW-1 is an independent witness. It may be noted that Mr. Dilip Modak,owner of the hotel, or any other independent witness present at theplace of occurrence was not examined. Mr. Somnath Bora, the IO wasproduced as PW-7. It may also be noted that the defence examined onlyone witness, i.e. Siraj Ali (DW-1), who was at the place of the occurrenceas recognised by the prosecution.

8. Learned Senior Counsel for accused No.9 contended that thecomplainant in the complaint itself made a very vague statement that“the incident took place at the instance and instigation of” the said accusedand two others. Nothing more was said as to how it was at the instanceand instigation of these three accused.

9. The second limb of his submission was that three of thewitnesses, PW-3, PW-4 and PW-6 were interested and inimical witnessesinasmuch as PW-3, the son of PW-4 and PW-6 were accused in themurder case of the main accused, accused No.1, Abdul Hai. Thetestimony of these three witnesses was stated to be full of exaggerations,embellishments and inconsistencies. An important aspect emphasised inthis behalf is that the version given by PW-3 in the complaint, as recordedin the FIR, is at variance with the narration of the incident when the saidwitness entered the witness box. Thus, while on the one hand in thecomplaint it was alleged that the incident happened at the instanceand instigation of the appellant and two other accused, in thetestimony before the court it has been stated that these three personsordered the other accused to catch hold of his father, the deceased,whereafter accused Abdul Rashid, who is accused No.2 shot at thedeceased with a pistol while accused No.1 hit him in the chest, handsand legs with a sword. The testimony of PW-4 and PW-6 states thataccused No.9 and two others asked other accomplices to hit and kill thedeceased.

10. The aforesaid testimony, it was submitted before us, has to beread in the context of the testimony of the only independent witness, i.e.,PW-1, who did not implicate the appellant in the crime. In fact, in histestimony he has specifically stated that he did not see accused No.8and accused No.9 either inside or outside the hotel. Learned SeniorCounsel also submitted that a reading of the complaint, resulting in theFIR would show that the appellant had not come to the place of occurrence A

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Aalong with the others. DW-1, who was present at the place of occurrence,according to the prosecution, stated that accused No.1 and two otherscommitted the crime, but he had not seen any one of the family membersof the deceased at the place of the occurrence. In fact, the suggestionin the cross-examination of the said witness by the prosecution was thataccused No.7 had given orders to assault the deceased, but thatBsuggestion had been denied by the witness.

11. The third limb of the submission of the learned Senior Counselis based on the statement of accused No.9, recorded under Section 313of the Cr.P.C. It was argued that the questions asked did not really putCthe case of the prosecution to the accused as was mandatory. Only twoquestions were put in the said statement, which are as under:

“Question:PW4 Sohrab Ali has averred in evidence that at about7 a.m. 17.3.97, you said, “Kill Keramat Ali.” What is your reply?

DAns: I was not there in the place of occurrence. My house is ata distance of 4 or 5 kilometers from there.

Question:PW6 has stated that you asked the other accused to killKeramat. What do you say?

EAns: No I was not present at the place of occurrence. A civil suitis pending over the complainant’s purchasing a plot of land. I wasone witness to (the execution of) the sale deed. Out of that grudgethey filed a false case against me.”

12. The case of PW-3 was, thus, not even put to the accused.F

13. In the aforesaid context learned Senior Counsel has referredto the judgment of this Court in Sharad Birdichand Sarda v. State ofMaharashtra[1] to contend that if the circumstances are not put to theaccused in his statement under Section 313 of the Cr.P.C., they must becompletely excluded from consideration because the accused did notGhave any chance to explain them. This is stated to be the consistentview of this Court starting from 1953 in the case of Hate Singh Bhagat Singh v. State of Madhya Bharat[2]. Learned Senior Counsel also 1 (1984) 4 SCC 1162 AIR 1953 SC 468H3 (2013) 12 SCC 406

referred to the judgment in Sujit Biswas v. State of Assam[3] for theproposition that the very purpose of examining the accused persons underSection 313 of the Cr.P.C. is to meet the requirement of the principles ofnatural justice, i.e., audi alteram partem. The accused, thus, must begiven an opportunity to explain the incriminating material that has surfacedagainst him and the circumstances which are not put to the accused inhis examination under Section 313 of the Cr.P.C. cannot be used againsthim and must be excluded from consideration.

14. The fourth limb of the submission of the learned Senior Counselarose from the acquittal of accused No.9 by the trial court and theconviction on reversal of acquittal in appeal. Thus, the plea was that theprinciples of such reversal require that the view of the trial court shouldbe respected unless and until the views are such as were perverse orotherwise unsustainable. Ordinarily, the judgment of acquittal, wheretwo views are possible, should not be set aside even if the view formedby the appellate court may be a more probable one.[4]

15. The last submission of the learned Senior Counsel, possiblybecause it is the weakest one, was that the ingredients of commonintention under Section 34 of the IPC and abetment under Section 107of the IPC are distinct and separate. The principle of constructive liability,enunciated in Section 34 of the IPC does not create a substantive offence,unlike Section 107 of the IPC, which is an independent offence. It was,thus, submitted that a person charged with Section 109 of the IPC (thepunishment provision for Section 107 of the IPC) cannot be convictedfor the main offence under Section 34 of the IPC. To advance this plea,reliance was placed on Babu v. State of Tamil Nadu[5]. However, in thefactual matrix of that case the person was charged under Section 34 ofthe IPC and not under Section 109 of the IPC. The observations madein that judgment, thus, have to be read in that context since substantiveoffence as per Section 107 with punishment under Section 109 of theIPC was not an aspect which the accused was charged with. The factualmatrix in the present case is the opposite where the plea is that there isno charge under Section 34 of the IPC but charge of abetment has beenlaid under Section 109.

4 Sunil Kumar Sambhudayal Gupta (Dr.) v. State of Maharashtra (2010) 13 SCC 6575 (2013) 8 SCC 60

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A16. The aforesaid last plea can be dealt with at this stage itself asthe issue is no more res integra in view of the judgment of this Court inState of Orissa v. Arjun Das Agarwal & Anr.[6] opining that the settledposition of law is that Section 34 of the IPC does not create a distinctoffence and it is with the participation of the accused that the intentionBof committing the crime is established when Section 34 of the IPC isattracted. To rope in a person with the aid of Section 34 of the IPC, theprosecution has to prove that the criminal act was done by the actualparticipation of more than one person and that act was done in furtheranceof a common intention of all engaged in prior concert.

C17. In view of the aforesaid, the last plea of the learned counsel isonly stated to be rejected.

18. On examination of the earlier pleas advanced by learned SeniorCounsel on behalf of accused No.9, we find merit in the same.

D19. PW-3 in his complaint did state that the incident took place atthe instance and instigation of accused No.9 along with accused Nos.7& 8.

20. However, in his deposition it has been stated that these personsasked the other accused to catch hold of the deceased. This by itself, inEour view, would not be fatal for the case of the prosecution. Similarly,there is some variation between what exactly these three persons stated,as available from the testimonies of even PW-4 and PW-6. However,the crucial aspect is that PW-1, the only independent witness, does noteven implicate accused No.9, much less assign any role to him. He hasFstated that he had not even seen accused No.9, even though he was theperson who was at the place of occurrence. DW-1, who was notproduced as a witness by the prosecution, though was stated to be presentat the place of occurrence, was examined by the defence and deposedagainst the main accused (accused No.1) and others, while not assigningeven the factum of presence to accused No.9. Interestingly, even whenGthe prosecution sought to cross-examine the said witness, the case ofthe prosecution was put as if only accused No.7 ordered the other accusedpersons to assault the deceased. Had accused No.9 played a role, thatwould logically have been put to DW-1 by the prosecution.

H6 AIR 1999 SC 3229

21. The most vital aspect, in our view, and what drives the nail inthe coffin in the case of the prosecution is the manner in which the courtput the case to accused No.9, and the statement recorded under Section313 of the Cr.P.C. To say the least it is perfunctory.

22. It is trite to say that, in view of the judgments referred to bythe learned Senior Counsel, aforesaid, the incriminating material is to beput to the accused so that the accused gets a fair chance to defendhimself. This is in recognition of the principles of audi alteram partem.Apart from the judgments referred to aforesaid by the learned SeniorCounsel, we may usefully refer to the judgment of this Court in AsrafAli v. State of Assam[7]. The relevant observations are in the followingparagraphs:

“21. Section 313 of the Code casts a duty on the Court to put in anenquiry or trial questions to the accused for the purpose of enablinghim to explain any of the circumstances appearing in the evidenceagainst him. It follows as necessary corollary therefrom that eachmaterial circumstance appearing in the evidence against theaccused is required to be put to him specifically, distinctly andseparately and failure to do so amounts to a serious irregularityvitiating trial, if it is shown that the accused was prejudiced.

22. The object of Section 313 of the Code is to establish a directdialogue between the Court and the accused. If a point in theevidence is important against the accused, and the conviction isintended to be based upon it, it is right and proper that the accusedshould be questioned about the matter and be given an opportunityof explaining it. Where no specific question has been put by thetrial Court on an inculpatory material in the prosecution evidence,it would vitiate the trial. Of course, all these are subject to riderwhether they have caused miscarriage of justice or prejudice.This Court also expressed similar view in S. Harnam Singh v. TheState (AIR 1976 SC 2140), while dealing with Section 342 of theCriminal Procedure Code, 1898 (corresponding to Section 313 ofthe Code). Non- indication of inculpatory material in its relevantfacets by the trial Court to the accused adds to vulnerability of the 7 (2008) 16 SCC 328

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Aprosecution case. Recording of a statement of the accused underSection 313 is not a purposeless exercise.”

23. While making the aforesaid observations, this Court alsoreferred to its earlier judgment of the three Judge Bench in ShivajiSahabrao Bobade v. State of Maharashtra[8], which considered the fallBout of the omission to put to the accused a question on a vital circumstanceappearing against him in the prosecution evidence, and the requirementthat the accused’s attention should be drawn to every inculpatory materialso as to enable him to explain it. Ordinarily, in such a situation, suchmaterial as not put to the accused must be eschewed. No doubt, it isCrecognised, that where there is a perfunctory examination under Section313 of the Cr.P.C., the matter is capable of being remitted to the trialcourt, with the direction to retry from the stage at which the prosecutionwas closed[9].

24. We are, however, not inclined to follow that course in theDgiven circumstances of this case as the inconsistencies in the testimoniesalso create a doubt in the case of the prosecution qua any role of accusedNo.9. The aforesaid being the factual matrix, the appellate court couldhardly have overturned the acquittal of the trial court into one ofconviction. The trial court took note of the close relationship of PW-3, EPW-4 & PW-6 to the deceased, as also the array of the accused and themurder of accused No.1, to come to the conclusion that the abetment ofaccused No.9, as alleged, had not been proved beyond reasonable doubt.In fact, it is opined that there is no evidence that the said accused wasinside or outside Kalia Hotel at the time of the occurrence. Given the circumstances, while not disagreeing with the legal proposition stated inFthe impugned judgment, that there is no law that the evidence of relativescannot be acted upon, but, with extra care and caution, the presence ofdisinterested witnesses as PW-1 and DW-1 relate another story. Thefinding in the impugned order, that in the FIR filed by PW-3 as thecomplainant, on the very date of the occurrence, setting out theGinvolvement of all the accused as clearly stated, again cannot be sustainedfor the reason of the improvements and embellishments between whatwas stated in the FIR and what came from the mouth of PW-3 as histestimony in the court.

8 (1973) 2 SCC 793H9 Shivaji Sahabrao Bobade v. State of Maharashtra (supra)

25. We are, thus, of the view that the prosecution has not beenable to establish a case against accused No.9, much less beyondreasonable doubt.

26. Now, turning to the case of accused Nos.2 & 3, who are stillin custody, unlike accused No.9, who has since been enlarged on bail bythis Court.

27. Learned counsel sought to adopt the arguments advanced onbehalf of accused No.9, but then the same would not be of much use asthe case of accused No.9 is quite different from the case against accusedNos.2 & 3.

28. A perusal of the order of the trial court would show that whathas weighed in acquitting these two accused was the fact that in thetestimony of the Doctor (PW-5), who performed the post-mortemexamination on the body of the deceased, a number of injuries werefound, caused by sharp pointed objects. In the cross-examination PW-5 has specifically stated that none of the injuries is a gun-shot injury.Thus, the medical evidence suggests the use of daggers and a sword.The plea of the Public Prosecutor was that the gun used by these twoaccused (as according to the role assigned to them) may have beenused only to scare away the persons. However, there has been noseizure of arms. Accused No.1, the main culprit, was subsequentlymurdered, and the related witnesses in the present case are the accused.PW-6 also did not see the firing of the gun, though he claims to haveheard the gun-shots though PW-3 and PW-4 state that they saw thefiring. The anomaly is that all the accused were standing together.

29. On a question put by the court, whether any bullets or bulletmarks were found at the site, learned counsel for the State fairly statedin the negative.

30. The question, which, thus, arises is that whether, within theparameters required for reversal of an order of acquittal, the needful ismet in the present case.

31. The impugned judgment is, once again, predicated on areasoning placing reliance on the testimony of the related witnesses.The reason to treat the same with some caution has already been set outby us hereinbefore. The testimony of PW-6, that he saw the gun beingfired, but could not make out whether a bullet hit the deceased or not has A

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Abeen taken into account, but, in the context of the overall testimony ofthe eye-witnesses, the story set forth by the prosecution and the witnesseswas found to be believable by the High Court. However, this story doesnot deal with the aforesaid aspects noted by the trial court, i.e., no bulletinjury, the weapon not being recovered, no bullets or bullet marks beingfound at the place of occurrence and the inconsistencies in the testimoniesBof the witnesses. The trial court rightly observed that it was accusedNo.1 who was the main accused, who was subsequently murdered.

32. We may, however, note that insofar as the statement of accusedNo.2, under Section 313 of the Cr.P.C. is concerned, the testimonies ofPW-3, PW-4 and PW-6 all have been put to him but the said accusedCclaimed absence from the place of the occurrence. As far as accusedNo.3 is concerned, once again, the testimonies of all the three eye-witnesses have been put to him, but the role sought to be assigned to himis stated to be a hit with the dagger, and not the role of firing at theaccused as set out in the FIR.D

33. The subsequent testimonies, however, sought to assign adifferent role than the one assigned in the FIR, bringing about aninconsistency. The view taken by the trial court is, at least, a plausibleview though that may not be the only plausible view or if one may sayeven the less probable one.E34. We are, thus, of the considered opinion that the prosecutionhas not been able to prove the case beyond reasonable doubt againstthese two accused, and they must get the benefit of doubt andconsequently have to be acquitted.

35. The result of the aforesaid findings is that Samsul Haque,Faccused No.9 is entitled to a clean acquittal. He is already on bail andthus, the bail bonds stand discharged. Abdul Rashid & Imdadul Islam,accused Nos.2 & 3 respectively, are entitled to the benefit of doubt andare consequently acquitted. The said accused may be released forthwith.

36. The appeals are accordingly allowed, leaving the parties toGbear their own costs.

Devika Gujral

Appeals allowed.

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