SAMSUL HAQUE versus THE STATE OF ASSAM

Citation: [2019] 11 S.C.R. 229 · Decided: 26-08-2019 · Supreme Court of India · Bench: SANJAY KISHAN KAUL · Disposal: Appeal(s) allowed

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Judgment (excerpt)

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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 the
victim-deceased was sitting in a tea stall on the fateful day, when
the first six accused entered and accused no.2 and 3 all of a sudden
started firing at the deceased with a pistol, while the other accused
started stabbing and hacking him with daggers, swords etc. and
the incident occurred at the instigation of accused nos.7, 8 and 9 –
Son of the deceased (PW-3) lodged FIR stating that he was present
at the site along with other witnesses and tried to resist the accused
– They were threatened with pistol and to save their life, they ran
away – Trial court found that accused no.1 who died during
pendency of trial was the main accused  – Instant appeals filed by
accused nos. 2, 3 and 9 against conviction by High Court – Held:
PW-1, the only independent witness present at the time of occurrence
did not implicate accused No.9 nor assign any role to him – As per
his deposition, he did not even see him at the site – The manner in
which court put the case to accused No.9, and recorded his statement
under s.313 of the Cr.P.C. was also perfunctory – The inconsistencies
in the testimonies created a doubt in the case of the prosecution
qua any role of accused No.9 – Thus, prosecution was not able to
establish case against him much less beyond reasonable doubt –
Accused No.9 is, therefore, entitled to acquittal – With regard to
accused Nos.2 and 3,  order of trial court showed that what has
weighed in acquitting these two accused was the fact that in the
testimony of the Doctor (PW-5), who performed the post-mortem
examination on the body of the deceased, a number of injuries were
found, caused by sharp pointed objects – In the cross-examination,
PW-5 specifically stated that none of the injuries was a gun-shot
injury – Thus, medical evidence suggested use of daggers and a
sword – The plea of the prosecution was that the gun used by these
two accused (as according to the role assigned to them) may have
   [2019] 11 S.C.R. 1
229
   [2019] 11 S.C.R. 229
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SUPREME COURT REPORTS
[2019] 11 S.C.R.
been used only to scare away the persons – The testimony of PW-6
that he saw the gun being fired, but could not make out whether a
bullet hit the deceased or not was taken into account, but, in the
context of the overall testimony of the eye-witnesses, the story set
forth by the prosecution and the witnesses was found to be believable
by the High Court – However, this story did not deal with the said
aspects noted by the trial court, i.e., no bullet injury, the weapon
not being recovered, no bullets or bullet marks being found at the
place of occurrence and the inconsistencies in the testimonies of
the witnesses – Trial court rightly observed that it was accused No.1
who was the main accused, who was subsequently murdered –
Insofar 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 were
put to him but the said accused claimed absence from the place of
the occurrence – In case of accused No.3, once again, the testimonies
of 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 not
the role at the accused as set out in the FIR – The subsequent
testimonies, however, sought to assign a different role than the one
assigned in the FIR, bringing about an inconsistency – The
prosecution was not able to prove the case beyond reasonable doubt
against these two accused – Accused Nos.2 and 3 respectively, are
entitled to the benefit of doubt and are also acquitted.
Allowing the appeals, the Court
HELD: 1.1  PW-3 in his complaint stated that the incident
took place at the instance and instigation of accused No.9 along
with accused Nos.7 and 8. However, in his deposition, it was stated
that these persons asked the other accused to catch hold of the
deceased. This by itself, would not be fatal for the case of the
prosecution. Similarly, there was 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, did not even implicate
accused No.9, much less assign any role to him.   DW-1, who was
not produced as a witness by the prosecution, though was stated
to be pres

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