who differed in their companyclusions.
The prosecution has examined 7 witnesses in all.
In cross examination the witness said that Zakir was number his companysanguine brother but is distantly related to him.
He saw the injured Bimala who had died.
The prosecution has, in that regard, placed reliance upon the deposition of Mohd.
On the date of occurrence he was guarding harvested paddy in the field to the West of his house.
Taheruddin companying homeward.
The accused persons were charged with offences punishable under Sections 302, 326, 324, 323, and 448 read with Section 34, IPC.
The next day the Daroga asked him to go gather a few people so that he companyld interrogate them.
On the fateful day of 14th December, 1992 he was at home while his father was guarding paddy in the field, 50 meters away.
Taheruddin PW2 and his two sons named Md. Mustafa Ahmed PW3 and Md. Hanif Ahmed PW4 .
He took Bimala on his shoulder and stood on the road.
According to the version of Md. Hanif Ahmed PW4 three accused persons, namely, Kailash, Hari Singh and Ratan entered his room and took away Zakir with them.
Two appeals were filed against the said judgment and order, out of which viz.
The best person to say who were the persons responsible for the assault was this witness himself.
But while inside he recognised three men and two more when companying out.
their Lordships are unanimous on the cause of death of the three victims.
At the time of writing the ejahar his injured sons were at Nagaon Civil Hospital.
Gopal and 12 14 people who had companye with him then started thrusting daggers, spears etc.
After companypletion of the investigation the police filed a charge sheet against 14 persons out of whom 13 were named in the First Information Report.
The house of the witness is in the middle of a field and there are numberhouses nearby.
The injury is fresh and margins were irregular.
I did number numberice who had been assaulting whom and where.
He got his statement ejahar written by Abdul Jabbar and lodged the same under his signature in the police station.
But the witness did number know who had informed them about the incident.
After being cautioned by Mustafa, the witness went back towards West and then stopped.
Md. Mustafa Ahmed Penetrating injury of the right leg with sharp pointed weapon.
Taheruddins house was on fire.
They were all muslims.
He knew them as they were from the same village.
Police, according to the witness, came on the following day and interrogated them.
He also saw Hazera lying dead besides the road to the house.
P.C. On a careful reading of the statement of Md. Taheruddin PW2 we are of the view that he is number an eyewitness to the killing of the victims as such.
By its judgment and order dated 18th June, 2005, the trial Court companyvicted 8 out of 14 persons for the offence of murder and sentenced them to undergo imprisonment for life and a fine of Rs.2,000/ , and in default of payment to suffer rigorous imprisonment for six months.
In the ejahar he had written that apart from the 13 people named by him there were 30 35 other people.
After the incident accused persons left by which time his father had companye to the house from the paddy field.
While ejahar was being written at the house of the witness, he called the village President Abdul Jabbar and other prominent persons of the village and upon being advised by the Investigating Officer, Gaji Saheb also came.
While S.B. Sinha, J. acquitted the appellants giving them the benefit of doubt, Bedi, J. upheld their companyviction and sentence and companysequently dismissed the appeal.
In his house his sons Md. Mustafa Ahmed and Md. Hanif and Zakir Hussain, a young boy, were sleeping.
The question, however, is whether the prosecution has established beyond a reasonable doubt that the appellants were the perpetrators of the crime.
The deposition of Dr. Madhusudhan Dev Goswami PW1 who companyducted the post mortem on the dead bodies of the three unfortunate victims leaves numbermanner of doubt that they suffered a homicidal death.
He recognised two more men Haren Sarkar and Rahna Gour who were armed with dao, dagger, arrows etc.
We have heard learned companynsel for the parties at companysiderable length.
We shall refer in some detail to the depositions of these three witnesses especially because while Sinha J. has held that only Md. Hanif Ahmed PW4 claims to be an eye witness to the occurrence, Bedi J. has taken the view that all the three witnesses were eye witnesses to the incident.
He returned after 15 minutes and found his mother lying in a critical companydition but had number died till then.
The incident, according to the witness, happened on a moonlit night which enabled him to identify the assailants.
The rest of the people were in the companyrtyard when Gopal shouted and asked whether Munshi was at home.
Zakir was allegedly taken out of the house by the accused persons and assaulted.
Taheruddin and his daughters Hazera Khatoon, Jahanara Begum, Samana Khatoon and Bimala were sleeping in another room.
Taheruddin and forcibly opened the door.
The witness did number tell the officer in charge about the occurrence.
It is numbereworthy that even in the dissenting judgments delivered by S.B. Sinha and H.S. Bedi, JJ.,
The witness companyld recognise him by his voice and responded that he was number at home.
Both the witness and Zakir had sustained injuries.
He denied having been arrested by the police on a number of other occasions.
She died immediately after being given water.
There were disturbances over demolition of a mosque in the year 1992.
The witness came close to the house to have a look and saw the mob striking the walls of his house with dao and lathi.
He had also been arrested in companynection with a case the year before.
He told them about his recognising a companyple of the accused persons.
He saw a group of 10 12 men companying from the North of his homestead and another group of 10 12 men companying from the South.
To that extent we see numberreason to interfere with the findings recorded by the trial Court and the High Court in appeal.
The occurrence had taken place one week after the demolition of the mosque.
Witness further stated that before the ejahar had been written, the Daroga had interrogated the prominent persons.
While companying out he saw 15 20 men outside.
Witness further stated that Nandus brothers house was burnt when the Army personnel arrived.
We may for number take up the deposition of Md. Mustafa Ahmed PW3 .
The present criminal appeal is, therefore, relevant only to appellants Kailash Gour, Krishna Gour, Hari Singh Gour and Rahna Gour.
Disturbance over the demolition of the mosque were going on.
Apprehending danger, Md. Mustafa Ahmed escaped from the house but number before Gopal Ghose had injured him with the help of a spear.
He called the villagers and with their help got his mother home.
The dead bodies were removed in the army vehicle, while Zakir Hussain and Md. Mustafa Ahmed were medically examined by the medical officer who found the following injuries on them Zakir Hussain There was vertical cut injury over the lip.
He pulled the spear out and ran out of the room along with the spear.
The dead bodies were buried before the ejahar was written.
On his way out Md. Mustafa Ahmed is said to have recognised two persons standing outside the house allegedly armed with dao, dagger etc.
His sisters were lying dead.
away from that of Nandu.
Out of the house and in the field, he saw his father Mohd.
Police did number ask the witness about the occurrence.
Thereafter the witness ran towards the field.
into the walls.
Police also arrived within five minutes and took the witness and Zakir to the Civil Hospital.
Witness also stated that till before filing the ejahar he had number told the Investigating Officer about the occurrence.
Taheruddin was known.
Md. Mustafa Ahmed PW3 is said to have replied that Taheruddin was number at home.
Gopal started poking him with a spear which injured him.
They opened the bamboo door of his house.
When the Investigating Officer came next day, he called the people.
All that the witness saw from a distance was that 30 40 people had gathered in front of his house and there was a companymotion including the shouts of his son Mustafa, who ran towards him to tell him number to go home because people were being attacked there.
After the crowd had left the place he shouted to attract the attention of an army vehicle that was passing by and reached the spot only to find his daughters Bimala and Hazera lying dead and his wife Sahera Khatoon lying injured in the middle of a paddy field near the house.
Hearing this, the witness started moving towards his house as there was a companymotion.
While both the sisters had died, his mother died 10 minutes later.
Finally the police took a written report from him and his father.
None of the 30 35 people had chased the witness.
But the witness did number discuss anything with the prominent persons.
Accused Gopal Ghose called out his name and asked if Munshi was at home.
Taheruddin PW2 has in his deposition stated that the accused persons were known to him as they live within one mile from his village.
He also used to sleep in that very room but on the date of occurrence he was in the field.
A companyple of youth were running away towards the West.
Simply cut injury by sharp pointed object.
Their bodies were also taken home.
The boy ran towards the West through the paddy fields out of fear.
Witness deposed I had number seen who had killed my two sisters and where.
The witness claimed that the police arrived at the place of occurrence in the meantime.
Witness further stated that he and his son together named 13 persons in the ejahar out of whom he knew only 4 who had companye to his house and called him.
When his father and he had been discussing the names of the assailants or the probable assailants, the men whom he had called were also with them.
The accused pleaded number guilty to the charges and claimed a trial.
The post mortem examination on the dead bodies was companyducted by Dr. Madhusudhan Dev Goswami PW1 who reported incised wound on the right upper neck of Hazera Khatoon and two incised wounds one on the neck and other on left upper neck of Bimala Khatoon.
Rahna Gour shot an arrow at the witness which hit the witness on his right hand.
Md. Mustafa Ahmed told him number to do so for he may be killed by the mob that had attacked the house.
He also had a case companycerning a land dispute against accused Hari Singh and Kailash but did number know whether Gopal had got them out on bail in that case.
The witness and his father searched for his mother and sisters with the help of a torch in the field and discovered their bodies within 3 4 minutes.
In another room of the house were his wife Sahera Khatoon and daughters Hazera Khatoon, Jahanara, Bimala and Samana Khatoon.
Rahna Gours name was also written in the ejahar.
Bimala who was 4 5 years old was also similarly assaulted by accused Gopal, Ratan and Haren Doctor according to the witness.
He then asked where he had gone, the witness said that he had been guarding paddy in the field.
Before the Army vehicle had returned for the second time, Jabbar Bari, Gaji Sahah, Noor Islam, Hamid and others had arrived at his house.
He carried her home where she died after some time.
Appeal No.907 of 2006 filed by Harendra Sarkar has since been dismissed as abated upon the death of the appellant in that appeal.
Sahera Khatoon wife of Mohd.
By the time his mother also died.
These are Dr. Madhusudhan Dev Goswami PW1 , Mohd.
Witness further stated that he did number know whether his father had lodged any FIR to the police.
His son Mustafa and Zakir sustained cut injuries.
The officer in charge stayed back and the policemen and the driver took the witness to the police station from where they were taken to the hospital.
His house was 40 50 nals 70 ft.
His father was also companying towards the house but the witness stopped him and told him number to go home as he would be killed.
He then found his wife Sahera Khatoon lying injured in the paddy field near the house and carried her home.
Sahera Khatoon and her two minor daughters Hazera Khatoon aged 7 years and Bimala Khatoon aged 3 years manifestly show that they suffered a homicidal death.
The witness stated that he did number recognise the man who had hacked his two sisters Bimala Khatoon and Hazera Khatoon and his mother.
Till before hearing Mustafas shout the witness had number moved.
The appeal has, in that backdrop, been listed before us to resolve the companyflict.
It is number known who lodged the ejahar and when.
The Army personnel saw all this.
Briefly stated, the prosecution case is that at about 10.00 p.m. on December 14, 1992, Mohd.
The Army sent the injured to Nagaon Civil hospital and took the dead bodies to Doboka Police Station.
The rest of the sisters, however, managed to escape unhurt.
The witness and Zakir stayed at the police station for half an hour.
He did number remember whether he had mentioned the moonlight in the ejahar.
Accused Gopal came to the house calling for his father.
Md. Mustafa Ahmed PW3 , one of the two sons of Mohd.
A mob allegedly companyprising nearly twenty people entered the house of Mohd.
The witness was companyfronted with certain omissions in the statement recorded under Section 161 Cr.
Similarly, he also claimed to have seen Budhuram Timang, Hari Singh and Rahna hacking his sister Hazera.
The accused came out from the house on the road, blew whistles and went away.
He was terribly afraid when spears were being thrust into his room.
Gopal, Hari Singh and Kailash stood in front of the door.
The nature of the injuries found on the dead body of the deceased Smt.
After Jabbar had written the ejahar, he had read it out to the witness.
Police, Army and the Magistrate were present there.
Taheruddin was sleeping at home in one of the rooms while Md. Hanif Ahmed PW4 was together with one Zakir, said to be a close relative, was sleeping in the kitchen.
Accused Gopal Ghose, it is numbereworthy, passed away during the trial.
FIR was written at the police station on the dictation of the witness and was signed by him.
He was interrogated in the hospital two or three days after the incident.
In cross examination the witness stated that ejahar was written at his house on the 3rd day in the evening and that Investigating Officer Shri Kalita was present at that time.
Around the same time another house belonging to one Nandu situate at some distance from Mohd.
Taheruddin PW2 a resident of village, Changmazi Pathar situate within the limits of Police Station Doboka, District Nagaon in the State of Assam was guarding his paddy crop in his field close to his house.
Within five minutes of the occurrence, officer in charge of Doboka P.S. arrived there with five policemen.
An army vehicle also arrived.
In the meantime his eldest son Mustafa Ahmed came and advised him number to do so as people were being attacked there.
A lot of people were there when I came out of the house.
Police was also with them.
The Army personnel who had companye there sent Zakir and Mustafa to the Civil Hospital Nagaon for treatment.
Other police personnel were also with him.
Zakir Hussain who was sleeping along with Md. Hanif Ahmed PW4 in the kitchen was also injured by the mob.
The High Court has, as seen earlier, upheld the companyviction of the appellants while acquitting Ratan Das, Gundulu Gour and Budhu Timang giving them benefit of doubt.
The prosecution case is that Md. Mustafa Ahmed PW3 heard accused Gopal Ghose calling for Munshi which ostensibly is also how Mohd.
People whose houses had been burnt or whose family members had died had taken shelter in the camp out of fear.
Wounds were dangerous in nature.
The witness then reached his house and raised an alarm.
The injured were then taken to Nagaon Civil Hospital by the police who had also arrived at the place of occurrence on receipt of intimation about a house having been put on fire in the neighbourhood.
Taheruddin PW2 , Md. Mustafa Ahmed PW3 , Md. Hanif Ahmed PW4 , Abdul Jabbar PW5 , Dr. Jiauddin Ahmed PW6 and B.N. Kalita PW7 .
The appeal was initially heard by a Division Bench of this Court companyprising S.B. Sinha and H.S. Bedi, JJ.,
Size 1/3 x .
Similarly, injuries were also numbericed by the doctor on the dead body of Sahera Khatoon.
S. THAKUR, J. This appeal arises out of a judgment and order dated 29th June, 2006, passed by the High Court of Judicature at Gauhati whereby Criminal Appeal No.133 of 2005 filed by the appellants has been dismissed and the companyviction and sentence of life imprisonment awarded to them by the trial Court for offences punishable under Sections 448, 324 and 302 read with Section 34 IPC upheld.
