Case Note & Summary
The incident occurred on 17 March 1997 at 7:00 a.m. when Keramat Ali Maral (the deceased) was having tea at Kalia Hotel. Six accused persons entered the tea stall, and accused Nos.2 and 3 fired at the deceased with a pistol while others stabbed and hacked him with daggers and swords, causing his death on the spot. The son of the deceased, Nazrul Islam (PW-3), lodged the FIR stating that he was present and witnessed the incident, but when they offered resistance, they were threatened with pistols and ran away. The FIR also mentioned that the incident took place at the instance and instigation of accused Nos.7, 8, and 9. After investigation, a charge-sheet was filed, and charges were framed under Sections 147, 148, 302/149, and 302 IPC against all accused, while accused Nos.7 to 9 faced additional charges under Sections 302/109 IPC. During trial, accused No.4 absconded and accused No.1 died. The trial court convicted accused Nos.1, 5, and 6 but acquitted accused Nos.2, 3, 7, 8, and 9. The convicted accused appealed to the Gauhati High Court, which dismissed their appeal, and the SLP against that dismissal was also dismissed, making that matter final. The State appealed against the acquittal of the five accused, and the High Court reversed the trial court's judgment, convicting all five. The present appeals are by accused No.9 (Samsul Haque) and accused Nos.2 and 3 (Abdul Rashid and Imdadul Islam). The Supreme Court examined the evidence, noting that four witnesses were projected as eye-witnesses: PW-1 (Taher Ali, independent), PW-3 (son of deceased), PW-4 (brother of deceased), and PW-6 (son of elder brother of deceased). The Court found that PW-1, the only independent witness, did not implicate accused No.9 and stated he did not see him at the scene. DW-1, examined by the defence, also did not implicate accused No.9. The Court also noted that the Section 313 CrPC examination of accused No.9 was inadequate, as only two questions were put, and the testimony of PW-3 was not put to him. The Court held that the High Court erred in reversing the acquittal of accused No.9 without finding the trial court's view perverse, and that the conviction of accused Nos.2 and 3 could not be sustained due to lack of independent corroboration and inadequate Section 313 examination. The appeals were allowed, and the convictions were set aside.
Headnote
A) Criminal Procedure Code - Section 313 Examination - Failure to Put Incriminating Circumstances - The accused must be given an opportunity to explain incriminating material; circumstances not put to accused under Section 313 CrPC cannot be used against him and must be excluded from consideration. In this case, only two questions were put to accused No.9, and the testimony of PW-3 was not put to him, violating principles of natural justice (Paras 11-13). B) Evidence Law - Interested Witnesses - Independent Witness - The testimony of interested witnesses (relatives of deceased) must be corroborated by independent evidence. PW-1, the only independent witness, did not implicate accused No.9 and stated he did not see him at the scene. DW-1 also did not implicate accused No.9. Thus, the prosecution case against accused No.9 fails (Paras 7, 10, 19-20). C) Criminal Law - Reversal of Acquittal - Appellate Court's Power - The appellate court should not reverse an acquittal unless the trial court's view is perverse or unsustainable. Where two views are possible, the view favouring the accused should be adopted. The High Court erred in reversing the acquittal of accused No.9 without finding perversity (Para 14). D) Indian Penal Code - Section 34 vs Section 109 - Common Intention and Abetment - Section 34 IPC does not create a substantive offence but is a rule of evidence; Section 109 IPC is a substantive offence of abetment. A person charged under Section 109 cannot be convicted under Section 34 without a specific charge. However, in this case, the plea was rejected as the issue is settled that Section 34 does not create a distinct offence (Paras 15-17).
Issue of Consideration
Whether the High Court was justified in reversing the trial court's acquittal of accused No.9 and convicting accused Nos.2 and 3, and whether the conviction can be sustained in light of inadequate Section 313 CrPC examination and lack of independent witness support.
Final Decision
Appeals allowed. Conviction of Samsul Haque (accused No.9), Abdul Rashid (accused No.2), and Imdadul Islam (accused No.3) set aside. They are acquitted of all charges.
Law Points
- Section 313 CrPC examination must put all incriminating circumstances to accused
- failure vitiates conviction
- reversal of acquittal requires perversity
- independent witness testimony prevails over interested witnesses
- Section 34 IPC does not create substantive offence
- Section 109 IPC is distinct from Section 34
