Crl.A(J) 165/2004 - Gauhati High Court

IN THE GAUHATI HIGH COURT 

(THE HIGH COURT OF ASSAM: NAGALAND: MEGHALAYA: 

MANIPUR: TRIPURA: MIZORAM AND ARUNACHAL PRADESH) 

Criminal Appeal No. 165(J) of 2004 

The State of Assam 

-Versus- 

1. Golbar Hussain 

S/o Lt. Mahez Paramanic, 

Resident of Totpara, 

Kasari Bhita. 

2. Abu Sama, 

S/o Lt. Insan Ali, 

Resident of Haldiapara. 

3. Abdul Baten, 

S/o Lt. Mahez Paramanic, 

Resident of Tolapara, 

Kasaribhita. 

4. Jahir Ali, 



5. Rahim Ali, 



All are residents of Chapar, Dist. Dhubri. 

……. Appellant 

……. Respondents 

Advocates for the appellant 

Advocates for the respondents 

: Mr Z.Kamar, 

PP, Assam 

: Mr. K.C. Roy and 

Mr. HR Ahmed 

Criminal Appeal No.165(J)/04 Page 1 of 1

PRESENT 

THE HON’BLE CHIEF JUSTICE MR. AK GOEL 

HON’BLE MR. JUSTICE B D AGARWAL 

Date of hearing : 9.08.2012 

Date of Judgment : 31.08.2012 

JUDGEMENT AND ORDER (CAV) 

B D Agarwal, J. 

This appeal under Section 370 of the Code of Criminal 

Procedure has been filed by the State challenging the judgment 

and order dated 29.7.2003 passed by the learned Sessions 

Judge, Dhubri in Sessions Case No. 20 of 2002 whereby the 

learned Sessions Judge has acquitted all the five accused 

persons from the offence of murder by forming an unlawful 

assembly. 

2. We have heard Mr. Z. Kamar, learned Public Prosecutor 

for the State as well as Mr. K.C. Roy, learned counsel appearing 

for the accused persons/respondents. Sri HR Ahmed, learned 

counsel appeared for the informant and he was also heard. We 

have also gone through the impugned judgment and the 

evidence proffered by the prosecution in the trial court. 

3. The defence case was of total denial. Though the accused 

persons were residing in the nearby village under the same 

police station of the deceased and the deceased was wellknown 

to the accused persons they have expressed their 

ignorance about the murder of Hasen Ali and all the five 


accused persons took the plea of total denial and no evidence in 

defence was tendered in the trial court. 

4. The offence of murder took place at about 6.00 PM on 

5.1.2001 by the side of a public road. At the relevant time, the 

deceased was returning home from Chapar market along with 

PWs 4 and 5 and on the way the accused persons suddenly 

appeared at the scene from all the four sides and attacked the 

deceased with various kinds of sharp and pointed weapons and 

hacked him to death. 

5. The FIR was lodged by the son of the deceased on the 

very same day narrating the aforesaid story and also 

specifically naming five accused persons in the crime. The FIR 

was registered as Chapor Police Station Case No.3 of 2001 

under Sections 147/148/149/341/302 of the Indian Penal Code. 

The case was investigated by Sub-Inspector, Sri S.C. Biswas 

(PW 9). The Investigating Officer has confirmed in his 

testimony that initially the information of murder was received 

from the informant at 6.15 PM. From the printed form of the 

FIR it is gathered that the written FIR was lodged at 10.00 PM 

i.e., within four hours of the incident. After the charge-sheet, 

the accused persons were tried only for the offence under 

Section 302 read with Section 149 of the Indian Penal Code and 

after the trial all the five accused persons have been acquitted. 

Hence, this appeal at the instance of the State. 

6. Before venturing to examine the legality and correctness 

of the impugned judgment as well as appreciating the 

prosecution evidence, it would be just and proper to have a 


ief look about the legal position of an appeal against 

acquittal. Adverting to various authorities, the Hon’ble 

Supreme Court in the case of Chandrappa and Ors –Vs- State 

of Karnataka; reported in (2007) 4 SCC 415 : 2007 CriLJ 2136 

has culled out the following legal principles: 

“30. From the above decisions, in our considered 

view, the following general principles regarding 

powers of appellate Court while dealing with an 

appeal against an order of acquittal emerge; 

(1) An appellate Court has full power to review, 

reappreciate and reconsider the evidence upon which 

the order of acquittal is founded; 

(2) The Code of Criminal Procedure, 1973 puts no 

limitation, restriction or condition on exercise of such 

power and appellate Court on the evidence before it 

may reach its own conclusion, both on question of 

fact and of law. 

(3) Various expressions, such as, ‘substantial and 

compelling reasons’, ‘good and sufficient grounds’, 

‘very strong circumstances’, ‘distorted conclusions’, 

‘glaring mistakes’, etc. are not intended to curtail 

extensive powers of an appellate Court in an appeal 

against acquittal. Such phraseologies are more in the 

nature of ‘flourishes of language’ to emphasize the 

reluctance of an appellate Court to interfere with 

acquittal than to curtail the power of the Court to 

review the evidence and to come to its own 

conclusion. 

(4) An appellate Court, however, must bear in mind 

that in case of acquittal, there is double presumption 

in favour of the accused. Firstly, the presumption of 

innocence available to him under the fundamental 

principles of criminal jurisprudence that every person 


shall be presumed to be innocent unless he is proved 

guilty by a competent court of law. Secondly, the 

accused having secured his acquittal, the presumption 

of his innocence is further reinforced, reaffirmed and 

strengthened by the trial court. 

(5) If two reasonable conclusions are possible on 

the basis of the evidence on record, the appellate 

court should not disturb the finding of acquittal 

recorded by the trial court.” 

7. In the aforesaid judgment itself, the Apex Court also 

referred to the judgment of Kallu –Vs- State of M.P.; reported 

in 2006 CriLJ 799 and it would be profitable to reproduce the 

observations of Their Lordships given in the said judgment, 

which are as follows : 

“While deciding an appeal against acquittal, the 

power of the Appellate Court is no less than the 

power exercised while hearing appeals against 

conviction. In both types of appeals, the power exists 

to review the entire evidence. However, one 

significant difference is that an order of acquittal will 

not be interfered with, by an appellate court, where 

the judgment of the trial court is based on evidence 

and the view taken is reasonable and plausible. It 

will not reverse the decision of the trial court merely 

because different view is possible. The appellate court 

will also bear in mind that there is a presumption of 

innocence in favour of the accused and the accused is 

entitled to get the benefit of any doubt. Further if it 

decides to interfere, it should assign reasons for 

differing with the decision of the trial court”. 

8. Learned Public Prosecutor also cited a judgment of the 

Hon’ble Supreme Court in the case of the Jugender Singh Vs- 


State of U.P.; reported in 2012 CriLJ 3005. In this judgment 

also, the apex court has reiterated the same principles. The 

learned counsel for the respondents also referred to the 

decision of the Apex Court given in the case of Babu & Ors.– 

Vs- State of U.P. (AIR 1983 SC 308) to argue that acquittal of an 

accused gives a presumption of innocence and if two views are 

possible, the view favourable to the accused should be taken 

into consideration. The observations of their Lordships, 

borrowed from the case of U.P. State –v- Samman Dass (1972 

CriLJ 487) are quoted below and we would certainly follow the 

legal principles as to when an order of acquittal should be 

interfered with. 

"There are, however, certain cardinal rules 

which have always to be kept in view in appeals 

against acquittal. Firstly, there is a presumption of 

innocence in favour of the accused which has to be 

kept in mind, especially when the accused has been 

acquitted by the court below; secondly, if two views 

of the matter are possible, a view favourable to the 

accused should be taken thirdly, in case of acquittal 

by the trial judge, the appellate court should take 

into account the fact that the trial judge had the 

advantage of looking at the demeanour of witnesses; 

and fourthly, the accused is entitled to the benefit 

of doubt. The doubt should, however, be reasonable 

and should be such which rational thinking men 

will reasonably, honestly and conscientiously 

entertain and not the doubt of a timid mind which 

fights shy-though unwittingly it may be-or is afraid 

of the logical consequences, if that benefit was not 

given." 


9. Now coming to the merit of the case, it appears that 

altogether 10 witnesses were examined by the prosecution to 

establish the murder of one Hasen Ali at the hands of the 

appellants. 

10. PW 1 has deposed that while he was purchasing medicine 

in a pharmacy he met PW 4, who told the witness crying that 

his brother Hasen Ali was killed in the market. Thereafter PW 1 

visited the place of incidence and saw the dead body with cut 

wounds on head and abdomen etc and in his presence the 

police officer seized a pair of sandal, one bag containing a 

khukri, two handmade bombs, one shawl and one bicycle 

under Ext. 1. 

11. PW 2 was the owner of a sweet-meet shop at Chapor 

market. According to him, the deceased was the President of 

Gaon Panchayat. The witness has further deposed that he was 

reported by PW 4 about the murder of Hasen Ali. This witness 

did not visit the place of murder. His testimony is only relevant 

to establish the presence of PW 4 at the place of occurrence at 

the relevant time. 

12. PW 3 is the son of the deceased and he is also the 

informant of the case. This witness has deposed that he was 

informed about the assault upon his father by his uncle Sah 

Alam. PW 3 was also told about the names of five assailants 

and thereafter the written FIR (Ext 2) was submitted. The 

witness was cross-examined to elicit that he did not name any 

assailant before the Investigating Officer. Be that as it may, the 

witness has given incriminating evidence in the cross- 


examination by deposing that his father (deceased) was an 

accused in a murder case lodged by one Sahar Ali and Jahar Ali 

and the said case is still pending for disposal. It may be 

mentioned herein that Jahar Ali is one of the 

accused/respondents in this case. In this way, Jahar Ali must 

have been a prosecution witness in the murder case against the 

deceased. As per the defence suggestion to the witness the 

deceased was also an accused in another murder case of Abdul 

Mazid. From these facts it is apparent that a group of persons, 

including the accused persons were entertaining grudge 

against the deceased. 

13. PW 4 is one of the two eye witnesses of the offence. He is 

the step brother of the deceased. According to PW 4 at the 

relevant time, he was in the market along with the deceased 

Hasen Ali and PW 5 Jahar Ali and all three of them were going 

together to the house of the deceased to purchase kerosene oil, 

since the deceased was running a fair price shop. According to 

PW 4, suddenly accused Golbar appeared from the right side 

and accused Abu Sama appeared from the left side and started 

assaulting Hasen Ali with daggers in his abdomen. The witness 

has further deposed that the accused Baten came from the front 

and dealt Khukri blows on the neck of the deceased and when 

the deceased fell down on the road he was simultaneously 

attacked by all the accused persons. According to PW 4 he 

could identify only five accused persons but some more 

persons were also involved. PW 4 has corroborated the 

informant deposing that immediately after the incident he went 

to the shop of Amir Hussain (PW 3) and reported about the 

incident. PW 4 has given additional incriminating evidence 


against the accused persons by deposing that accused Abu 

Sama was earlier convicted in an assault case upon the 

deceased. 

14. In the cross-examination PW 4 has deposed that he had 

come to Chapor market on the previous day but PW 5 came to 

the market on the same day. The witness has further clarified 

that he met PW 5 in the market in the afternoon and both of 

them had accompanied the deceased to his grocery shop. The 

witness has been cross-examined to ascertain whether he could 

see the assailants. The witness has stated that the deceased was 

going ahead and the distance in between them was that of only 

5 cubits. The witness has admitted that when some of the 

assailants obstructed him he retreated up to a distance of 15 

cubits. The witness was further cross-examined that he did not 

give a graphic statement before the Investigating Officer as to 

from which direction which accused came and which accused 

inflicted what injury. 

15. PW 5 Jahar Ali is the prime witness of the prosecution. He 

is the brother-in-law of the deceased inasmuch as his sister was 

married to deceased’s brother. He is also the eye witness of the 

offence of murder. His testimony is by and large the same, 

which has been narrated by PW 4. Before going to the house of 

the deceased he met PW 4 and the deceased in a tea stall and 

thereafter all the three were going to the house of the deceased 

to purchase kerosene oil since the deceased was running a fair 

price shop. According to PW 5, the deceased was few steps 

ahead of them and the deceased was also pulling a bicycle. 

Suddenly, all the five respondents appeared at the scene from 


different sides and after gheraoing the deceased each one of 

them assaulted Hasen Ali by different weapons. Though, 

according to PW 5 few more persons were there but he could 

not identify the remaining persons. The witness has further 

elaborated as to which accused was carrying what weapon and 

how they assaulted the deceased. PW 5 has further deposed 

that seeing the incident PW 4 ran away to inform the son of the 

deceased and, after some time, the police came to the site of the 

offence and seized one bag containing two numbers of bombs 

and one Khukri. Besides this, PW 5 has further spoken about 

the enmity between the deceased and the accused Abu Sama 

since the said accused was convicted in a case of assault upon 

the deceased. 

16. PW 5 was cross-examined to elicit certain omissions as to 

which accused was carrying what weapon and what injury was 

inflicted by each one of them. The witness was suggested in the 

cross-examination that the deceased was also implicated in a 

murder case and the bombs and Khukri recovered from the bag 

belonged to the deceased. Except giving a casual suggestion 

that the accused persons have been falsely implicated, no 

specific suggestion was given as to why the accused persons 

were falsely implicated. However, from one of the suggestions, 

it can be inferred that the accused persons have been falsely 

implicated since the accused Jahir and Rahim were witnesses in 

a murder case against the deceased. On the other hand, this 

suggestion clearly proves that there was deep rooted enmity 

between the accused persons and the deceased and both the 

parties were entangled in physical fights and filing cases 

against each other. 


17. PW 6 is the uncle of the deceased. After hearing the 

incident in the market he visited the place of occurrence and 

saw Hasen Ali lying dead. This witness has further deposed 

that in his presence police came for investigation and seized 

one bicycle and a bag, containing one Khukri and two bombs 

vide Ext-1. PW 6 is also a witness to the inquest report. In the 

cross-examination, he has admitted that he was also an accused 

in a case of murder of Jahar and Sahar. PW 3 has also admitted 

in the cross-examination that his father was also an accused in 

the same murder case. Be that as it may, one new fact has 

emerged in the cross-examination of PW 6 that just four days 

prior to the murder of Hasen Ali, the witnesses had harvested 

black gram along with the deceased that was cultivated by the 

accused and one day prior to the murder, the deceased had 

allegedly assaulted one Ajahar and Samsul. In this way, PW 6 

has also spoken about the enmity in between accused and the 

deceased. 

18. PW 7 is the doctor who had conducted necropsy on the 

dead body. It is necessary to reproduce the number and nature 

of the injuries, which will answer the question as to whether the 

culpable homicide of Hasen Ali was intentional and as to 

whether five persons could be involved in the said offence. The 

external injuries are as below : 

“1. Cut injury 3” x ½” x ½ in right side of scalp. 

2. Cut injury 1” x ½” x 1/3” in right ears. 

3. Cut injury 2” x 1” x ½” in left side of face. 

4. Deep lacerated wound in left side of neck 6”x2”x 

6”, injuring all the major blood vessels. 


5. Penetrating wound 1”x ½” x3” in right side of 

abdomen piercing the liver. 

6. Lacerated wound 4”x3”x3” in right wrist joint and 

palm. 

7. Left little finger is cut. 

8. Cut injury is right side of lower abdomen 3”x ½ “ x 

1”. 

9. Multiple penetrating wounds (12 No.) 2” x ½ “x 1” 

present in back.” 

19. In the opinion of the doctor, the injuries were antemortem 

in nature and the person died due to injuries sustained 

by him. The doctor was not cross-examined on any point. 

20. From the numbers, situs and nature of the wounds we 

have no hesitation to hold that the appellants had definite 

intention to commit murder of the victim. Going by the 

numbers of the injuries inflicted on the deceased possibility of 

involvement of five persons also cannot be totally discounted. 

At the same time, the autopsy findings also corroborate the 

testimony of PWs 4 and 5, wherein they have deposed that the 

deceased was assaulted from left, right, front and back. 

21. PW 8 is virtually a witness to the seizure of bag and other 

articles from the place of occurrence. In the cross-examination, 

the witness has deposed that on being enquired PWs 4 and 5 

could not say as to who had committed murder. However, this 

statement was not made before the Investigating Officer. In his 

statement under Section 161 Cr.P.C., PW 8 had only stated that 

he could not say as to who had killed Hasen Ali. Be that as it 

may, PW 8 has also corroborated PW 7 by deposing in the 

cross-examination that the deceased had harvested pulses 4/5 


days ago from 160 Bighas of land of one Mahar Ali, who is the 

brother of the accused Jahar Ali, for whom a murder case was 

lodged and Hasen Ali was an accused in the said case. The 

witness was basically cross-examined to project a story that the 

deceased was involved in a number of criminal cases. 

22. PW 9 is the Investigating Officer and PW 10 is the Officerin-Charge 

of the Chapor Police Station, who had finally 

submitted the charge sheet. 

23. Sri Roy, learned counsel for the respondents argued that 

the testimonies of PWs 4 and 5 are contradictory on material 

points. According to the learned counsel, PW 4 has deposed 

that he had come to Chapor market on the previous day, 

whereas PW 5 has admitted in the cross-examination that he 

and Shah Alam came to Chapor on the very day of the 

occurrence and this discrepancy was also taken note of by the 

learned Sessions Judge as material contradiction to record the 

judgment of acquittal. In our opinion, the contradiction can also 

be looked into from different angle. PW 4 has nowhere claimed 

in the examination in chief that he and PW 5 had come to 

Chapor together on the previous day. Rather, in the crossexamination, 

PW 4 has categorically stated that Jahar Ali (PW 

5) had come to Chapor on the very day of the incident and only 

in the afternoon they met in the market near a tea stall. The 

evidence of PW 5 was recorded nearly after two years of the 

incident. Even otherwise, whether PWs 4 and 5 had come to 

Chapar from their respective villages on the previous day or on 

the same day is immaterial since their meeting in the afternoon 

in front of a tea stall has not been challenged. From the 


deposition of PWs 4 and 5 and other witnesses it is difficult to 

doubt the presence of PWs 4 and 5 at the place of occurrence. 

On the other hand, testimony of these two witnesses could not 

be impeached in the cross-examination to hold a view that they 

are either chance witnesses or planted by the prosecution to 

support a cooked-up story. 

24. The learned counsel for the respondents also submitted 

that PW 4 has admitted that within moments he had retreated 

from the place of occurrence to a distance of about 15 cubits 

and as such it could not have been possible for PW 4 to witness 

the crime. In our opinion, the argument has no force inasmuch 

as for some time PW 4 had seen the assault from a close 

distance of 5 cubits and only thereafter he was chased away. 

Besides this, there is no such statement from PW 5 that he was 

also chased away and that he could not identify the assailants. 

In our opinion, since all the accused persons were well known 

to the witnesses and since they had witnessed the assault from 

a distance of only 5 cubits it might not have been difficult for 

them to identify the assailants. There was no suggestion to PWs 

4 and 5 that they could not identify the assailants due to 

darkness. On the other hand, the admitted fact is that there 

were good number of shops nearby and, particularly, one 

godown and a Govt. office and as such there must have been 

sufficient light at the place of occurrence. 

25. According to the learned Sessions Judge neither PW 3 nor 

PW 4 mentioned the name of the accused persons in their 

statement under Section 161 Cr.P.C. This finding of the learned 

Sessions Judge is totally perverse and factually incorrect. Both 


these witnesses had specifically named all the five respondents 

as assailants of Hasen Ali. Strangely, in the cross-examination, 

the Investigating Officer also did not say that PWs 4 and 5 did 

not name the accused persons as the offenders. The 

Investigating Officer was confronted by the defence only to 

contradict the parts of the body on which the deceased was 

assaulted. Both PWs 4 and 5 had stated before the Investigating 

Officer that the accused persons had assaulted Hasen Ali at 

random at different places but while giving depositions in the 

court the witnesses have just clarified as to on which part of the 

body assaults were inflicted. Hence, we hold that the view 

taken by the learned Sessions Judge about material 

contradictions is not correct. 

26. The learned Sessions Judge has also relied upon the 

testimony of PW 1 to take a view that PW 4 did not disclose the 

names of the assailants when PW 1 met him near a pharmacy. 

In our considered opinion, the testimony of PW 1 has been 

twisted in favour of the accused persons without giving any 

thought as to under what circumstance both PWs 1 and 4 met 

each other. Apparently, PW 4 was in a hurry to report the 

incident to the son of the deceased. PW 1 was apparently not a 

relative of the deceased and as such PW 4 may not have 

thought it necessary to give vivid description of the incident, 

including the names of the assailants. Be that as it may, PW 1 

has nowhere stated that he had specifically enquired from Sah 

Alam (PW 4) as to who had committed the murder and without 

any such question PW 4 may not have discussed the incident in 

detail. In this way, the testimony of PW 1 cannot be said to be 


not in favour of the prosecution, far less giving any testimony 

in favour of the accused persons. 

27. The learned Sessions Judge has also taken an exception 

that though the incident took place in the market area no 

shopkeeper has come forward to support the prosecution case. 

According to the learned Sessions Judge, PW 5 has admitted in 

the cross-examination that he knew two shopkeepers; one 

Sattar and another Hazarat and the said Hazarat (PW 2) has not 

supported the prosecution case by deposing that the incident 

had taken place in front of his shop. 

27.1. In our considered opinion, this finding is also absurd and 

not based on record. Firstly, PW 5 has not specifically stated 

that the murder took place just in front of the shop of PW 2 and; 

secondly, from the sketch map of the place of occurrence also it 

does not indicate that the shop of PW 2 was situated nearby. 

Besides this, we are of the firm view that the shop of PW 2 must 

have been situated at a sufficient distance from the place of 

occurrence. We hold so because PW 2 has deposed that even 

after hearing about the murder of the President of the Gaon 

Panchayat (Hasen Ali) he did not visit the place of occurrence 

since he was busy in the shop. Had the shop of PW 2 been 

situated very close to the scene he would have certainly visited 

the place of occurrence, despite being pre-occupied as this is 

the common human behavior. 

28. Lastly, the learned Sessions Judge has also recorded a 

wrong finding that the bag containing Khukri and two bombs 

belonged to the deceased persons (inadvertently typed as 


“accused persons”). Admittedly, no explosive materials were 

used in the murder. Besides this, various kinds of sharp 

weapons were used in the assault. Hence, the recovery of 

bombs and one Khukri and that too from a bag lying on the 

spot was immaterial and not connected in the incident. Even if 

it is assumed that these weapons were being carried by the 

deceased, the accused persons could not have been given any 

benefit from this recovery. 

29. The learned counsel for the respondents also submitted 

that since PWs 3, 4 and 5 are closely related to the deceased, 

their evidence should be scrutinized carefully. We fully agree 

with the learned counsel for the accused persons. There are 

scores of decisions in this regard and virtually it is the settled 

legal principle that if the witnesses are closely related to the 

deceased their testimony should be scanned meticulously. 

Some of the authorities on this point; including the case of Ram 

Ashrit Ram –vs- State of Bihar, reported in 1981 CriLJ 484 have 

already been referred in the impugned judgment. In this case 

the Hon’ble Supreme Court has observed that the testimonies 

of those witnesses who are highly interested, inimical and 

partisan and particularly when it bristles with improbable 

version and material infirmities it is not safe to rely on their 

testimonies. In our view the aforesaid authority is basically on 

particular facts of the case, although there cannot be any 

quarrel on the legal principle of close scrutiny of the evidence 

of related witnesses. 

30. At the same time, the Hon’ble Supreme Court has also 

held in the case of State of Rajasthan –Vs- Kalki (AIR 1981 SC 


1390) that the testimony of related witnesses cannot be thrown 

overboard and in appropriate cases, the relatives are the best 

witnesses, who are less likely to shield real culprits and 

implicate innocent persons. While setting aside a judgment of 

acquittal on the basis of ocular testimony of the wife of the 

deceased their Lordships have distinguished the evidentiary 

value of ‘related’ and ‘interested’ witness in the following 

words. 

“A witness may be called ‘interested” only when he 

or she derives some benefits from the result of a 

litigation; in the decree in a civil case or in seeing an 

accused person punished. A witness who is natural 

one and is the only possible eye witness in the 

circumstances of the case cannot be said to be 

‘interested’. In the instant case the PW 1 had no 

interest in protecting the real culprits and falsely 

implicating the respondents” 

31. In the instant case, we do not find over exaggeration of 

the facts or material and significant infirmities in the 

testimonies of prime witnesses. It is also not a case wherein it 

can be held that the prosecution evidence throws two views 

and the respondents can be given benefit of doubt. 

32. In view of the discussions made hereinabove, we have 

come to the conclusion that the impugned judgment suffers 

from perversity and the findings of the learned Sessions Judge 

are not based on evidence and materials on record. On the 

other hand, the prosecution evidence clearly proves that all the 

five accused persons/respondents were directly involved in the 

offence of murder by forming an unlawful assembly. 


33. In the result, the appeal stands allowed. The impugned 

judgment is hereby set aside. All the five respondents namely, 

Golbar Hussain, Abu Sama, Abdul Baten, Jahir Ali and Rahim 

Ali are hereby convicted under Section 302 r/w Section 149 

IPC. The respondents are directed to surrender in the court of 

learned Sessions Judge, Dhubri forthwith, failing which the 

learned Sessions Judge shall take steps to apprehend them 

to undergo conviction for the offence of murder. The 

respondents are sentenced to undergo Imprisonment for 

Life and also to pay fine of Rs. 10,000/-(ten thousand) each 

for their conviction under Section 302 r/w Section 149 IPC. 

In default of payment of fine, the convicts shall undergo further 

RI for six months each. 

34. The seized weapons are directed to be destroyed as per 

the Rules. 

35. Send down the records along with a copy of the 

judgment. 

36. In view of the provisions prescribed by Section 357-A 

Cr.P.C., the victim or his/her dependants are entitled to get 

compensation for rehabilitation in appropriate cases. In the 

light of the directions, given in the case of Jalilur Rahman –vs- 

State of Assam, reported in 2012(1) GLT 238, with regard the 

victim compensation, as provided by Section 357-A Cr.P.C., we 

make the following directions: 


(i) As an interim measure, an amount of 

Rs.50,000/- shall be deposited by the State 

Government with the District Legal Services 

Authority of Dhubri District within a period of 

two months from this date. The District Legal 

Services Authority, on receipt of the said money, 

shall make an enquiry to ascertain as to whether, 

there is dependant(s), who suffered loss and 

injury as a result of death of the deceased and if 

such dependent(s) or legal representative(s) need 

any rehabilitation. 

(ii) Upon such enquiry, if it is found that the 

dependent(s), if any, need rehabilitation, then the 

District Legal Services Authority shall initially 

release the said interim amount and thereafter 

direct payment of adequate compensation, as 

may be prescribed by the scheme to be prepared 

by the State Government. It is made clear that if 

the District Legal Services Authority, after due 

enquiry, arrive at the findings that there is no 

dependent(s) or that the dependent(s) of the 

deceased/victim does not require any 

rehabilitation, then the District Legal Services 

Authority, shall refund the said amount of 

Rs.50,000/- without delay, in favour of the State 

Government. 

Upadhaya 

JUDGE 

CHIEF JUSTICE

Crl.A(J) 165/2004 - Gauhati High Court

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