whether, within the parameters required for reversal of an order of acquittal, the needful is met in the present case. The reason to treat the same with some caution has already been set out by us hereinbefore. 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 has been taken into account, but, in the context of the overall testimony of the eyewitnesses, the story set forth by the prosecution and the witnesses was found to be believable by the High Court. However, this story does not deal with the aforesaid 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. The trial court rightly observed that it was accused No.1 who was the main accused, who was subsequently murdered. We may, however, note that insofar as the statement of accused No.2, under Section 313 of the Cr.P.C. is concerned, the testimonies of PW-3, PW-4 and PW-6 all have been put to him but the said accused claimed absence from the place of the occurrence. As far as accused No.3 is concerned, once again, the testimonies of all the three eyewitnesses have been put to him, but the role sought to be assigned to him is stated to be a hit with the dagger, and not the role of firing 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 view taken by the trial court is, at least, a plausible view though that may not be the only plausible view or if one may say even the less probable one. We are, thus, of the considered opinion that the prosecution has not been able to prove the case beyond reasonable doubt against these two accused, and they must get the benefit of doubt and consequently have to be acquitted.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1905 OF 2009
SAMSUL HAQUE ….Appellant
VERSUS
THE STATE OF ASSAM ….Respondent
WITH
CRIMINAL APPEAL NO. 246 OF 2011
J U D G M E N T
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 known as Kalia
    Hotel. It is alleged that Abdul Hai, Abdul Rashid, Imdadul Islam, Rahul
    Amin, Mofizuddin Islam and Abdul Rahim Faruki, being the first six
    accused entered the stall and all of a sudden accused Nos.2 & 3 fired at
    1
    Keramat Ali with a pistol, while the other accused injured him by
    stabbing and hacking with daggers, swords, etc. Keramat Ali is stated to
    have died on the spot. The son of Keramat Ali, Nazrul Islam (PW-3)
    lodged the FIR, stating that he was present at the site along with other
    witnesses, but when they offered resistance, they were threatened with
    pistols. To save their life, they ran away from the site. Insofar as accused
    Nos.7, 8 & 9 are concerned, it is stated that “further it may be mentioned
    that the incident took place at the instance and instigation of accused
    Nos.7, 8 and 9.”
  2. On the investigation being completed, a charge-sheet was filed and
    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 faced
    charges under Sections 302/109 of the IPC. In the course of trial,
    accused No.4, Rahul Amin, absconded. Accused No.1, Abdul Hai, died/
    was allegedly murdered during the course of trial. On completion of trial
    the Sessions Judge, Morigaon found that accused No.1 was the main
    culprit who had killed the deceased, Keramat Ali. The trial court also
    found that the guilt of accused Nos.5 & 6 was also established beyond
    reasonable doubt.
    2
  3. The convicted accused filed an appeal before the Gauhati High
    Court and so did the State of Assam qua the accused who had been
    acquitted. The appeal of the convicted accused was dismissed by the
    High Court and the Special Leave Petition (‘SLP’) filed against the same
    was also dismissed and, thus, that matter attained finality.
  4. The impugned judgment dated 12.2.2009 deals with the appeal of
    the State and has reversed the judgment of the trial court convicting the
    five accused.
  5. Accused No.9, Samsul Haque has filed Crl. Appeal No.1905/2009,
    while Abdul Rashid (accused No.2) and Imdadul Islam (accused No.3)
    filed Crl. Appeal No.246/2011. It is these three accused who are before
    us.
  6. We have heard Mr. R.K. Dash, learned Senior Counsel for accused
    No.9, Mr. Bijan Ghosh, learned counsel for accused Nos.2 & 3 and
    learned counsel for the State, Mr. Debojit Borkakati who took us through
    the record before us. We have also perused the trial court record.
    3
  7. We would first deal with the witnesses produced by the
    prosecution to prove their case. Four witnesses were projected as eyewitnesses to the occurrence, viz., Taher Ali (PW-1); Nazrul Islam (PW-3),
    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 elder
    brother 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 the place of
    occurrence was not examined. Mr. Somnath Bora, the IO was produced
    as PW-7. It may also be noted that the defence examined only one
    witness, i.e. Siraj Ali (DW-1), who was at the place of the occurrence as
    recognised by the prosecution.
  8. Learned Senior Counsel for accused No.9 contended that the
    complainant in the complaint itself made a very vague statement that “the
    incident took place at the instance and instigation of” the said accused
    and two others. Nothing more was said as to how it was at the instance
    and instigation of these three accused.
    4
  9. The second limb of his submission was that three of the witnesses,
    PW-3, PW-4 and PW-6 were interested and inimical witnesses inasmuch
    as PW-3, the son of PW-4 and PW-6 were accused in the murder case of
    the main accused, accused No.1, Abdul Hai. The testimony of these three
    witnesses was stated to be full of exaggerations, embellishments and
    inconsistencies. An important aspect emphasised in this behalf is that the
    version given by PW-3 in the complaint, as recorded in the FIR, is at
    variance with the narration of the incident when the said witness entered
    the witness box. Thus, while on the one hand in the complaint it was
    alleged that the incident happened at the instance and instigation of the
    appellant and two other accused, in the testimony before the court it has
    been stated that these three persons ordered the other accused to catch
    hold of his father, the deceased, whereafter accused Abdul Rashid, who is
    accused No.2 shot at the deceased with a pistol while accused No.1 hit
    him in the chest, hands and legs with a sword. The testimony of PW-4
    and PW-6 states that accused No.9 and two others asked other
    accomplices to hit and kill the deceased.
    5
  10. The aforesaid testimony, it was submitted before us, has to be read
    in the context of the testimony of the only independent witness, i.e., PW1, who did not implicate the appellant in the crime. In fact, in his
    testimony he has specifically stated that he did not see accused No.8 and
    accused No.9 either inside or outside the hotel. Learned Senior Counsel
    also submitted that a reading of the complaint, resulting in the FIR would
    show that the appellant had not come to the place of occurrence along
    with the others. DW-1, who was present at the place of occurrence,
    according to the prosecution, stated that accused No.1 and two others
    committed the crime, but he had not seen any one of the family members
    of the deceased at the place of the occurrence. In fact, the suggestion in
    the cross-examination of the said witness by the prosecution was that
    accused No.7 had given orders to assault the deceased, but that
    suggestion had been denied by the witness.
  11. The third limb of the submission of the learned Senior Counsel is
    based on the statement of accused No.9, recorded under Section 313 of
    the Cr.P.C. It was argued that the questions asked did not really put the
    case of the prosecution to the accused as was mandatory. Only two
    6
    questions were put in the said statement, which are as under:
    “Question: PW4 Sohrab Ali has averred in evidence that at about
    7 a.m. 17.3.97, you said, “Kill Keramat Ali.” What is your reply?
    Ans: I was not there in the place of occurrence. My house
    is at a distance of 4 or 5 kilometers from there.
    Question: PW6 has stated that you asked the other accused to
    kill Keramat. What do you say?
    Ans: No I was not present at the place of occurrence. A
    civil suit is pending over the complainant’s purchasing a plot of
    land. I was one witness to (the execution of) the sale deed. Out of
    that grudge they filed a false case against me.”
  12. The case of PW-3 was, thus, not even put to the accused.
  13. In the aforesaid context learned Senior Counsel has referred to the
    judgment of this Court in Sharad Birdichand Sarda v. State of
    Maharashtra1
    to contend that if the circumstances are not put to the
    accused in his statement under Section 313 of the Cr.P.C., they must be
    completely excluded from consideration because the accused did not
    have any chance to explain them. This is stated to be the consistent view
    of this Court starting from 1953 in the case of Hate Singh Bhagat Singh
    1 (1984) 4 SCC 116
    7
    v. State of Madhya Bharat2
    . Learned Senior Counsel also referred to the
    judgment in Sujit Biswas v. State of Assam3
    for the proposition that the
    very purpose of examining the accused persons under Section 313 of the
    Cr.P.C. is to meet the requirement of the principles of natural justice, i.e.,
    audi alteram partem. The accused, thus, must be given an opportunity to
    explain the incriminating material that has surfaced against him and the
    circumstances which are not put to the accused in his examination under
    Section 313 of the Cr.P.C. cannot be used against him and must be
    excluded from consideration.
  14. The fourth limb of the submission of the learned Senior Counsel
    arose from the acquittal of accused No.9 by the trial court and the
    conviction on reversal of acquittal in appeal. Thus, the plea was that the
    principles of such reversal require that the view of the trial court should
    be respected unless and until the views are such as were perverse or
    otherwise unsustainable. Ordinarily, the judgment of acquittal, where
    two views are possible, should not be set aside even if the view formed
    2AIR 1953 SC 468
    3 (2013) 12 SCC 406
    8
    by the appellate court may be a more probable one.4
  15. The last submission of the learned Senior Counsel, possibly
    because it is the weakest one, was that the ingredients of common
    intention under Section 34 of the IPC and abetment under Section 107 of
    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 (the
    punishment provision for Section 107 of the IPC) cannot be convicted for
    the main offence under Section 34 of the IPC. To advance this plea,
    reliance was placed on Babu v. State of Tamil Nadu5
    . However, in the
    factual matrix of that case the person was charged under Section 34 of the
    IPC and not under Section 109 of the IPC. The observations made in that
    judgment, thus, have to be read in that context since substantive offence
    as per Section 107 with punishment under Section 109 of the IPC was not
    an aspect which the accused was charged with. The factual matrix in the
    4 Sunil Kumar Sambhudayal Gupta (Dr.) v. State of Maharashtra (2010) 13
    SCC 657
    5 (2013) 8 SCC 60
    9
    present case is the opposite where the plea is that there is no charge under
    Section 34 of the IPC but charge of abetment has been laid under Section
    109.
  16. The aforesaid last plea can be dealt with at this stage itself as the
    issue is no more res integra in view of the judgment of this Court in
    State of Orissa v. Arjun Das Agarwal & Anr.6
    opining that the settled
    position of law is that Section 34 of the IPC does not create a distinct
    offence and it is with the participation of the accused that the intention of
    committing the crime is established when Section 34 of the IPC is
    attracted. To rope in a person with the aid of Section 34 of the IPC, the
    prosecution has to prove that the criminal act was done by the actual
    participation of more than one person and that act was done in
    furtherance of a common intention of all engaged in prior concert.
  17. In view of the aforesaid, the last plea of the learned counsel is only
    stated to be rejected.
  18. On examination of the earlier pleas advanced by learned Senior
    6 AIR 1999 SC 3229
    10
    Counsel on behalf of accused No.9, we find merit in the same.
  19. PW-3 in his complaint did state that the incident took place at the
    instance and instigation of accused No.9 along with accused Nos.7 & 8.
  20. However, in his deposition it has been stated that these persons
    asked the other accused to catch hold of the deceased. This by itself, in
    our 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 not even
    implicate accused No.9, much less assign any role to him. He has stated
    that he had not even seen accused No.9, even though he was the person
    who was at the place of occurrence. DW-1, who was not produced as a
    witness by the prosecution, though was stated to be present at the place of
    occurrence, was examined by the defence and deposed against the main
    accused (accused No.1) and others, while not assigning even the factum
    of presence to accused No.9. Interestingly, even when the prosecution
    sought to cross-examine the said witness, the case of the prosecution was
    put as if only accused No.7 ordered the other accused persons to assault
    11
    the deceased. Had accused No.9 played a role, that would logically have
    been put to DW-1 by the prosecution.
  21. The most vital aspect, in our view, and what drives the nail in the
    coffin in the case of the prosecution is the manner in which the court put
    the case to accused No.9, and the statement recorded under Section 313
    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 by the
    learned Senior Counsel, aforesaid, the incriminating material is to be put
    to the accused so that the accused gets a fair chance to defend himself.
    This is in recognition of the principles of audi alteram partem. Apart
    from the judgments referred to aforesaid by the learned Senior Counsel,
    we may usefully refer to the judgment of this Court in Asraf Ali v. State
    of Assam7
    . The relevant observations are in the following paragraphs:
    “21. Section 313 of the Code casts a duty on the Court to put in an
    enquiry or trial questions to the accused for the purpose of
    enabling him to explain any of the circumstances appearing in the
    evidence against him. It follows as necessary corollary therefrom
    7 (2008) 16 SCC 328
    12
    that each material circumstance appearing in the evidence against
    the accused is required to be put to him specifically, distinctly and
    separately and failure to do so amounts to a serious irregularity
    vitiating trial, if it is shown that the accused was prejudiced.
  23. The object of Section 313 of the Code is to establish a direct
    dialogue between the Court and the accused. If a point in the
    evidence is important against the accused, and the conviction is
    intended to be based upon it, it is right and proper that the accused
    should be questioned about the matter and be given an opportunity
    of explaining it. Where no specific question has been put by the
    trial Court on an inculpatory material in the prosecution evidence,
    it would vitiate the trial. Of course, all these are subject to rider
    whether they have caused miscarriage of justice or prejudice. This
    Court also expressed similar view in S. Harnam Singh v. The State
    (AIR 1976 SC 2140), while dealing with Section 342 of the
    Criminal Procedure Code, 1898 (corresponding to Section 313 of
    the Code). Non- indication of inculpatory material in its relevant
    facets by the trial Court to the accused adds to vulnerability of the
    prosecution case. Recording of a statement of the accused under
    Section 313 is not a purposeless exercise.”
  24. While making the aforesaid observations, this Court also referred
    to its earlier judgment of the three Judge Bench in Shivaji Sahabrao
    Bobade v. State of Maharashtra8
    , which considered the fall out of the
    omission to put to the accused a question on a vital circumstance
    appearing against him in the prosecution evidence, and the requirement
    8 (1973) 2 SCC 793
    13
    that the accused’s attention should be drawn to every inculpatory material
    so as to enable him to explain it. Ordinarily, in such a situation, such
    material as not put to the accused must be eschewed. No doubt, it is
    recognised, that where there is a perfunctory examination under Section
    313 of the Cr.P.C., the matter is capable of being remitted to the trial
    court, with the direction to retry from the stage at which the prosecution
    was closed9
    .
  25. We are, however, not inclined to follow that course in the given
    circumstances of this case as the inconsistencies in the testimonies also
    create a doubt in the case of the prosecution qua any role of accused
    No.9. The aforesaid being the factual matrix, the appellate court could
    hardly have overturned the acquittal of the trial court into one of
    conviction. The trial court took note of the close relationship of PW-3,
    PW-4 & PW-6 to the deceased, as also the array of the accused and the
    murder of accused No.1, to come to the conclusion that the abetment of
    accused 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 was
    inside or outside Kalia Hotel at the time of the occurrence. Given the
    9 Shivaji Sahabrao Bobade v. State of Maharashtra (supra)
    14
    circumstances, while not disagreeing with the legal proposition stated in
    the impugned judgment, that there is no law that the evidence of relatives
    cannot be acted upon, but, with extra care and caution, the presence of
    disinterested witnesses as PW-1 and DW-1 relate another story. The
    finding in the impugned order, that in the FIR filed by PW-3 as the
    complainant, on the very date of the occurrence, setting out the
    involvement of all the accused as clearly stated, again cannot be
    sustained for the reason of the improvements and embellishments
    between what was stated in the FIR and what came from the mouth of
    PW-3 as his testimony in the court.
  26. We are, thus, of the view that the prosecution has not been able to
    establish a case against accused No.9, much less beyond reasonable
    doubt.
  27. Now, turning to the case of accused Nos.2 & 3, who are still in
    custody, unlike accused No.9, who has since been enlarged on bail by this
    Court.
  28. Learned counsel sought to adopt the arguments advanced on behalf
    15
    of accused No.9, but then the same would not be of much use as the case
    of accused No.9 is quite different from the case against accused Nos.2 &
    3.
  29. A perusal of the order of the trial court would show 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
    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 two accused (as
    according to the role assigned to them) may have been used only to scare
    away the persons. However, there has been no seizure of arms. Accused
    No.1, the main culprit, was subsequently murdered, 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 have heard the gun-shots though
    PW-3 and PW-4 state that they saw the firing. The anomaly is that all the
    accused were standing together.
    16
  30. On a question put by the court, whether any bullets or bullet marks
    were found at the site, learned counsel for the State fairly stated in the
    negative.
  31. The question, which, thus, arises is that whether, within the
    parameters required for reversal of an order of acquittal, the needful is
    met in the present case.
  32. The impugned judgment is, once again, predicated on a reasoning
    placing reliance on the testimony of the related witnesses. The reason to
    treat the same with some caution has already been set out by us
    hereinbefore. 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 has been
    taken into account, but, in the context of the overall testimony of the eyewitnesses, the story set forth by the prosecution and the witnesses was
    found to be believable by the High Court. However, this story does not
    deal with the aforesaid 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
    17
    testimonies of the witnesses. The trial court rightly observed that it was
    accused No.1 who was the main accused, who was subsequently
    murdered.
  33. We may, however, note that insofar as the statement of accused
    No.2, under Section 313 of the Cr.P.C. is concerned, the testimonies of
    PW-3, PW-4 and PW-6 all have been put to him but the said accused
    claimed absence from the place of the occurrence. As far as accused
    No.3 is concerned, once again, the testimonies of all the three eyewitnesses have been put to him, but the role sought to be assigned to him
    is stated to be a hit with the dagger, and not the role of firing at the
    accused as set out in the FIR.
  34. The subsequent testimonies, however, sought to assign a different
    role than the one assigned in the FIR, bringing about an inconsistency.
    The view taken by the trial court is, at least, a plausible view though that
    may not be the only plausible view or if one may say even the less
    probable one.
    18
  35. We are, thus, of the considered opinion that the prosecution has not
    been able to prove the case beyond reasonable doubt against these two
    accused, and they must get the benefit of doubt and consequently have to
    be acquitted.
  36. The result of the aforesaid findings is that Samsul Haque, accused
    No.9 is entitled to a clean acquittal. He is already on bail and thus, the
    bail bonds stand discharged. Abdul Rashid & Imdadul Islam, accused
    Nos.2 & 3 respectively, are entitled to the benefit of doubt and are
    consequently acquitted. The said accused may be released forthwith.
  37. The appeals are accordingly allowed, leaving the parties to bear
    their own costs.
    ………………………………J.
    [Sanjay Kishan Kaul]
    ………………………………J.
    [K.M. Joseph]
    New Delhi.
    August 26, 2019.
    19