Md Mainuddin Laskar And Anr vs The State Of Assam And Anr

Two numbers of Criminal Appeals were filed by the convicted persons namely, Mour @ Moub Uddin Laskar, Md. Moin Uddin Laskar and Md. Motibur Rahman Laskar, against the Judgment and Order dated 07.02.2017 passed by the Additional Sessions Judge, FT(C) at Silchar, in Sessions Case No. 20/2007. The said sessions case was instituted against seven number of accused persons including the appellants mentioned above and on completion of the trial, the Trial Court convicted three of the accused persons i.e. the appellants and acquitted the rest of the accused persons for lack of evidence against them. By the said Judgment and Order, the Trial Court had convicted the appellant namely, Moin Uddin Laskar under Section 302 IPC, appellant namely, Moti @ Motibur Rahman Laskar under Section 302 IPC read with Section 109 IPC as well as appellant namely, Mour @ Moub Uddin Laskar under Section 324 of the IPC. Thereafter, the Trial Court had sentenced appellants namely Moin Uddin Laskar as well as Motibur Rahman Laskar @ Moti to undergo rigorous imprisonment for life with a fine of Rs. 10,000/- each and in default for payment of fine, they were further sentenced to S.I. for another period of three months. The Trial Court had sentenced the other appellant namely, Mour @ Moub Uddin Laskar to undergo simple imprisonment for one year with fine of Rs. 10,000/-and in default for payment of fine, he was further directed to undergo S.I. for another six months.

When the Appeals were taken up for hearing, it is stated by the learned Counsel for the appellants that appellant namely, Moin Uddin Laskar expired during his incarceration in judicial custody in Central Jail, Silchar. It is also stated by the learned Counsel that the other appellant namely Md. Mour @ Moub Uddin Laskar had also expired during the time, he was on bail. The death certificate issued by Registrar, Birth and Death, Silchar Medical College and Hospital, Silchar, Cachar, Assam dated 22.04.2026 was placed showing that appellant Moin Uddin Laskar expired on 28.01.2026. With regard to the other appellant, the death certificate issued by the Registrar, Birth and Death, Natun Ramnagar, State Dispensary on 20.04.2026 was placed showing that the appellant Mour @ Moub Uddin Laskar expired on 25.02.2026. Therefore, the appeal filed by the appellants mentioned above, who died during the pendency of the present appeals stands abated. To be more precise, the appeal filed by Md. Moin Uddin Laskar as appellant no.1 in Criminal Appeal No. 142/2017 stands abated qua the said appellant. However, in respect of the appellant no. 2 i.e. Md. Motibur Rahman Laskar, who had filed the appeal together with the deceased appellant i.e. Criminal Appeal No. 142/2017, is heard by this Court. As far as the deceased appellant namely Mour @ Moub Uddin Laskar is concerned, who had filed Criminal Appeal No.139/2017, the same stands abated.

The only appeal that requires to be adjudicated by this Court is Criminal Appeal No.142/2017 qua the appellant namely Motibur Rahman Laskar. The said appellant had filed the present appeal under Section 374(2) of Cr.P.C, challenging the Judgment and Order dated 07.02.2017 passed by the learned Sessions Judge, Cachar in Sessions Case No.20/2007. By the said Judgment and Order as stated above, the appellant was convicted under Section 302 IPC R/W Section 109 of the IPC and was sentenced to undergo rigorous imprisonment for life with fine and default stipulation.

The present case started with lodging of the First Information Report by one Munej Ali, before the Officer-In-Charge of Sonai Police Station stating inter alia that on 29.03.1999, while he was going by the side of his nearby houses belonging to the accused persons, accused no.1 namely Md. Mohim Uddin arrayed as such in the said FIR called him to his house and by keeping him confined in the porch of his house, demanded money from the informant. The informant further stated that since he did not owe any money to the said accused, he refused to pay any amount and at that juncture, the said accused assaulted him with his hands and stick and on receiving the information about the incident, the members of the informant's family came to the place of occurrence and when they tried to resist the assault made by the said accused, the other accused persons including the deceased appellants assaulted the family of the informant, as a result of which, the informant's nephew sustained grievous injury.

The police on receipt of the FIR registered the same under Sections 147/148/149/342/323/326 of the IPC. During investigation of the case, the injured victim succumbed to his injuries at Silchar Medical College Hospital and pursuant to the same, Section 302 IPC was added by the Investigating Officer. On completion of the investigation, the police submitted the charge sheet on 30.01.2002 against the appellant and the deceased appellants along with four other accused persons, before the learned Chief Judicial Magistrate, who committed the case to the Court of learned Additional Sessions Judge, Cachar, Silchar for adjudication. Thereafter, the learned Additional Sessions Judge, FT(C), Cachar, Silchar framed charges against eight accused persons including the appellant under Sections 302/324/148 IPC R/W Section 149 of the IPC which was read over and explained to the accused persons, to which the accused person pleaded not guilty and the trial was initiated.

During trial, the prosecution examined 13 witnesses and the Court had examined one Court witness and on completion of the trial, the accused persons including the appellant were examined under Section 313 of the Cr.P.C and the appellant and others were asked as to whether they wanted to adduce any defence evidence to which they refused and on completion of the trial, the learned Trial Court had delivered the Judgment and Order convicting the appellant and others as mentioned above.

The Trial Court mainly on the evidence of PW1, PW4 to PW6, PW9 and the Court Witness No.1, who were considered as eye witnesses reached to the conclusion that prosecution has been successful to proof the fact that on the day of occurrence, one Moin Uddin assaulted deceased namely Abidur Ali on his chest, by hurling a spear blow, at the instigation of the appellant. The Learned Trial Court also held that the deceased appellant namely Mour @ Moub Uddin Laskar assaulted the other victim and caused injuries on the heel. It was further concluded by the Trial Court that since no overt act was attributed to other accused persons, the rest of the accused persons apart from the three appellants were acquitted for want of evidence. The learned Trial Court in respect of the deceased appellant namely Moin Uddin Laskar, returned a conviction under Section 302 IPC and with regard to the present appellant, the conviction under Section 302 R/W Section 109 of IPC was imposed. Further the deceased appellant Mour @ Moub Uddin was also found guilty under Section 324 IPC. The sentences were accordingly imposed as mentioned above.

The daughter of the deceased person was examined as PW1 and she stated before the Trial Court that she was then a student of Class-IV and that she accompanied her father on the day of occurrence at around 08:30 am to the village Mosque as it was the day of Eid. She further stated that after completion of the prayers, her father first went to the burial place for offering prayers for the departed souls and when they both were returning home, and had reached the front of the old house of the deceased appellant namely Moin Uddin, the appellant and others appeared and that the appellant ordered the deceased appellant Moin Uddin to kill her father with the spear and as a result, the said deceased appellant thrust a spear blow on the chest of her father and on seeing this, she raised hue and cry. She further stated that thereafter she lost her senses and she did not know what happened subsequently.

This witness has been cross-examined and during the cross-examination, she reiterated that she accompanied her father to the Mosque and that she had seen the incident. She also reiterated that appellant had ordered and the deceased appellant Moin Uddin assaulted her father.

PW2 is a villager, who also went for the Eid prayers to the same Mosque to which the deceased and his daughter went. He stated before the Trial Court that on the day of occurrence, he heard hue and cry from the house of one Motor Ali and going there, he saw one Mubej Ali (PW9) being tied up in the house of Motor Ali on the allegation of non-payment of loan. This witness further stated that many people from the locality mediated between Motor Ali and Mubej Ali and that Mubej Ali was subsequently released and while the father of PW1 along with others were coming with said Mubej Ali, the accused persons including the appellant assaulted the deceased and others. He, however, stated that he cannot say as to who had assaulted the deceased. At this juncture, this witness was declared hostile by the prosecution. During the cross-examination by the prosecution, this witness stated that he had not stated to the police that while he and others were returning, the informant side had assaulted the deceased and others and that on the direction of the appellant, deceased appellant Moin Uddin dealt a blow on the chest of the deceased. This witness also deposed that he stated before the police that Mubej Ali was detained in the house of Motor Ali and villagers gathered to settle the issue.

PW3 is another villager who had gone for prayers to the Mosque on the day of Eid i.e. on the day of occurrence and that he stated before the Trial Court that upon hearing hue and cry in the house of Motor Ali, he went and saw Mubej Ali kept tied by his hand. He enquired and that he and others requested Motor Ali to release Mubej Ali with the suggestions that the matter would be settled in village Bichar. He further stated that after Mubej Ali was released, he was on his way back home and at that juncture, he heard hue and cry again and on reaching the place of occurrence, he found the deceased lying in injured condition. At this stage, this witness was also declared hostile. On the cross-examination by the prosecution, he denied of stating before the police that while he was returning along with Mubej Ali, the appellant along with others attacked them and on the instigation of the appellant, deceased appellant Moinuddin thrust the blow on the chest of the deceased. In his cross-examination by the defence, he reiterated that he had seen Mubej tied in the house of Motor Ali.

PW-4, who is also the co-villager deposed before the Trial Court that on the day of incident, deceased and his daughter went to the Mosque for prayer and when they reached the front of the old house of accused person, the accused persons including the appellant assaulted the deceased. He thereafter stated that on seeing the assault, he raised hue and cry and lifted the deceased and took him to the police station and then to the hospital, wherein the doctor declared the victim as dead. During his cross-examination, this witness stated that many people gathered after hearing hue and cry raised by the daughter of the deceased at the place of occurrence. He also stated that he stated before the police that deceased appellant, Moinuddin hurled a spear blow on the chest of the deceased.

PW5 also stated before the Trial Court that he too went for the prayers on the day of occurrence, which was the day of Eid and that he was returning from the Mosque after the Eid prayer. He further stated that the deceased and his daughter was ahead of him while he was returning as stated above and when they reached the old house of deceased appellant Moin Uddin, he saw the accused persons assaulting the deceased. This witness further stated that they got scared and they ran away from the place of occurrence but they saw the deceased lying injured on the ground and that the ballam (spear) was pulled out from the chest of the deceased. He also stated that at that point of time, the accused persons fled away. This witness further stated that he accompanied the deceased person to the hospital. During his cross-examination, this witness, however, stated that he revealed before the police about the facts that he narrated in his examination in chief.

The brother of the deceased was examined as PW6 and he deposed before the Trial Court that he along with the deceased and PW1 i.e. the daughter of the deceased, went to the graveyard and when they were there, they heard cries that Mubej Ali was taken to the house of Motor Ali and that Mubej Ali was assaulted. They also heard that village elders got Mubej Ali released. He thereafter stated that when they reached near the old house of deceased appellant Moin Uddin, Motor Ali came out from the backside of the rice mill and ordered to kill the deceased and that on the instigation, said deceased appellant Moin Uddin dealt a ballam blow on the chest of the deceased. On seeing this, this witness raised alarm and hearing his hue and cry, people gathered and took the injured to the hospital. During cross-examination, this witness stated that appellant had ordered the deceased appellant Moin Uddin to kill the deceased.

One Sub-Inspector of Police was examined as PW7 and he stated that he was instructed by the in-charge of the concerned police outpost to make inquest over the dead body of the deceased and while performing the same, he found injury on the chest of the deceased and made a report to that effect and submitted the same, which was exhibited as Exhibit-1. During his re-cross-examination, this witness stated that apart from injury on the chest of the deceased, he had not noticed any other injury.

The doctor, who examined the injured, namely Baktar Hussain Laskar deposed as PW8 and on examination, he found a cut injury over left heel and he opined that the injury was simple and fresh. He also stated that such injury can be caused by sharp pointed material like split bamboo or tin. On the same day, he also examined the deceased and he stated that the deceased was brought dead from the casualty department.

The informant of the present case was examined as PW No. 9 and he stated that on the day of occurrence, i.e., on 21.03.1999, he went for the prayers at the mosque at 08:00 am in the morning since it was the day of Eid and that after completing the prayers, while he was going back to his house, he was called by one Mohim to his house and when he reached there, said Mahim asked him to pay his dues, to which he replied that he had already paid whatever he owed him and at that juncture, Mohim and one more accused person assaulted him with fists and blows. This witness thereafter stated that his nephew, i.e. the deceased came to rescue him and when upon being rescued, he and the deceased were returning, the acquitted accused person, Motor, ordered Mohim to assault his nephew and on the said insistence, Mohim hurled a blow with a ballam (spear) on the chest of his nephew. He further stated that on being assaulted, his nephew ran and fell on the ground in front of the house of the appellant. He also stated that his nephew was thereafter taken to the hospital.

During the cross-examination, this witness had admitted of making the aforesaid statement before the Police. He further denied the suggestion made to him that Mohim and Rahim called him to the house of Motor and assaulted him with fists and blows.

The Investigating Officer of the Case was examined as PW-10 and he stated before the Court that at around 10:00 am on the day of occurrence, two injured persons, namely, Abidur Rahman, i.e., the deceased and Bakhtar Hussain appeared in the Police Station and that he sent both of them to Silchar Medical College and Hospital for treatment. This witness further stated that on the same day, at around 11:45 am, he received a written FIR from the informant, namely, Mubej Ali, son of Late Sonamoni. He further stated that he received phone call that the injured Abedur Rahman succumbed to his injuries at the medical college and that thereafter, on the prayer made before the Court, Section 302 IPC was added. This witness thereafter stated that subsequently, he carried on the investigation and he handed over the Case Diary to his successor, who submitted the charge sheet. This witness, thereafter, stated about PW-2, stating before him during his examination under Section 161 of the CrPC that, when Mubej was released, all the accused persons, including the appellant attacked the informant and party near the mill and on direction of the appellant, i.e., Motibur, the deceased appellant Moinuddin thrust the blow on the chest of the deceased.

During the cross-examination, this witness stated that there was a cross-case filed by the accused persons, which was registered as Sonai PS Case No. 104 of 1999 and also that the cross-case was filed earlier to that of the present case. He further stated that on the day of occurrence, at 10:00 am, a clash took place between the complainant party and the FIR named accused persons as a result of which, both the parties got injured and that both the parties had submitted FIR at the Police Station. This witness, thereafter, stated about the contradictory statements made by PW-2 to the effect that PW No. 2 did not state before the Police that he found PW -1, i.e., the daughter of the deceased near her injured father. This witness also stated that he did not ask the priest of the mosque to find out as to whether the daughter of the deceased visited the mosque on the day of occurrence.

The Police Officer who was handed over the Case Diary, by the Investigating Officer was examined as PW-11, who stated before the Court that he conducted part of the investigation by arresting few accused persons and handed over the Case Diary to his successor, who upon completion of the investigation submitted charge sheet.

The doctor who conducted the autopsy on the body of the deceased was examined as PW-12 and he stated before the Court that on examination of the deceased, he found one cut mark on the right side of the chest measuring 3 cm wide along with the injury beneath the same. He, thereafter specified that the stab wound injury was 5 cm x 1.5 cm deep present on the right side of the chest and that the upper end of the wound was 6 cm from medial end of right clavicle and that the lower end is 25 cm from umbilicus and 16 cm from right nipple and 3 cm right from midline. The doctor opined that cause of death was shock and hemorrhage resulting from the said injury and that the injuries were ante-mortem caused by sharp pointed weapon and was homicidal in nature.

The Judicial Magistrate Second Class, Silchar was examined as PW-13 only to bring home the fact that he recorded the statement of PW No. 1, PW No. 6, PW No. 9 and, one Ashiquddin under Section 164 CrPC.

Apart from the said prosecution witnesses, one injured witness, namely, Bakhtar Uddin who was taken to the hospital as stated above was examined by the Court as Court Witness No. 1. This witness stated that after the Eid prayer while he along with the deceased and others were coming back home, the deceased appellant, namely, Moinuddin all of a sudden hurled a blow on the chest of the deceased. He stated that the said accused person had come out from behind the rice mill and hit the deceased. He further stated that he was little away from the deceased and while he tried to resist the blow on the deceased, he was assaulted by another deceased appellant, namely, Mour @ Moub Uddin Laskar on his left heel and further that he along with the deceased was taken to the Police Station.

During his cross-examination, he stated that he stayed in the medical college for two days. He further reiterated his statements made in his examination-in-chief. To a pointed query by the Court, this witness replied that the daughter of the deceased was with him on the day of occurrence.

These are the evidences laid by the prosecution. Thereafter, the appellant along with other accused persons were examined under Section 313 of the CrPC. The appellant had replied to each and every incriminating circumstances, put to him during the said examination with the answer that he is innocent and on the query as to whether he has anything more to say, he replied that a cross-case is pending against the informant’s side. However, no defence witness was examined by the appellant and that the learned trial Court, on conclusion of the trial and after hearing the arguments on behalf of both the sides, had convicted the appellant and two others under the respective provisions of law and sentenced them accordingly as mentioned above.

Mr. Arshad Choudhury, learned counsel appearing for the appellant had stated that there are conflicting statements made by the prosecution witnesses with regard to the alleged instigation given by the appellant. He submits that although PW-1 who is the daughter of the deceased stated that it was the appellant who ordered the deceased appellant, Moinuddin to kill her father with the spear, PW-6 and PW-9 as well as the Court witness had stated otherwise. He categorically stated that PW-6 who is also an eye-witness to the occurrence had stated in clear terms that it was Motor, the acquitted accused person, who ordered to kill the deceased and that based on his order, the deceased appellant Moinuddin gave the blow on the chest of the deceased. The learned counsel also pointed out that the complainant examined as PW-9 had stated that it was Motor who had ordered Mohim to assault the deceased and that Mohim gave the chest blow on the deceased. Further, the learned counsel had also submitted that contradictory statement was also made by Court witness who said that while he and the deceased was returning home, the deceased appellant, Moinuddin hurled a blow on the chest of the deceased. He, therefore, submitted that as far as the instigation given by the appellant is concerned, there was only one witness, who stated that it was the appellant who instigated and that two of the prosecution witnesses stated that it was Motor, who instigated and the Court witness did not state about instigation at all. He accordingly, submits that since it is a settled law that whatever is favourable to the accused person will be considered by the Court, the same be done in the instant case.

The learned counsel has further submitted a law point to the effect that the appellant was convicted under Section 302 IPC read with Section 109 of the IPC and the same cannot be resorted to, in absence of the specific charge under Section 109 of the IPC. He submits that charges against the appellant and others were framed under Section 302/324/148, read with Section 149 of the IPC and at no point of time, during the charge framing or subsequently, charge under Section 109 IPC was framed. He submits that Section 109 IPC, being a substantive offence, cannot be taken recourse to in place of Section 149 of the IPC, without there being any specific charge to that effect. He also submits that deceased appellant, Moinuddin, was convicted under Section 302 IPC simpliciter, whereas the appellant was convicted under Section 302 IPC, read with Section 109 IPC, which according to him, is not maintainable under the law. He also submits that non-framing of the charge under Section 109 IPC, and convicting the appellant under Section 302 IPC with the aid of Section 109 of IPC, had caused prejudice to the appellant, inasmuch as the appellant was not allowed to defend his case with regard to the abetment provided under Section 109 IPC. To substantiate his arguments, he relied on the following judgments:

Wakil Yadav and Another vs State of Bihar, reported in (2000) 10 SCC 500, by which the Apex Court had held that conviction of the appellant under Section 302, read with Section 109 IPC without any charge framed against the appellant under Section 109 IPC was incorrect.

ii) Chandrawati vs Ramji Tiwari and Another reported in AIR Online 2010 SC 184, by which the Apex Court by relying on the aforesaid decision had observed that there being no charge framed under Section 109 IPC, the conviction was stated to be incorrect.

iii) Babu @ Balasubramaniam and Another vs State of Tamil Nadu reported in (2013) 8 SCC 60, by which the Apex Court had similarly observed that charges against the appellant was under Section 302 IPC read with Section 34 of the IPC, but the resultant conviction under Section 304 Part-I read with Section 109 IPC was incorrect in view of the fact that there was no charge under Section 109 IPC.

Per contra, Mr. KanKan Das, learned APP for the State submitted before the Court that PW No. 1, i.e., the daughter of the deceased was an eyewitness to the incident and she categorically stated that it was the appellant who instigated Moinuddin, the deceased appellant to kill her father and pursuant to that instigation, she stated that the said appellant had killed her father with a spear. He further submitted that the said witness had also reiterated the said statement during her cross-examination. The learned counsel, thereafter, submitted that although PW-6 stated in his evidence-in-chief that it was accused Motor who ordered Moinuddin to kill the deceased but during his cross-examination, this witness stated that the appellant had ordered Moinuddin to kill the deceased. He further submitted that said PW No. 6 had reiterated the fact in his further statement during the cross-examination. The learned counsel further submitted that PW No. 1 had given her statement before the Magistrate under Section 164 of the CrPC and the said statement had corroborated her statement made before the Trial Court to the effect that it was the appellant who ordered his group to kill the deceased and pursuant to his order, Moinuddin hit her father with a bamboo zavelin to which, her father lost his life on the way to hospital. The learned counsel further had placed the ingredients of Section 109 IPC and demonstrated that if an act is committed in consequence of the abetment given by the accused person and where no express provision is given for punishment of such abetment, the accused person shall be punished with the punishment provided for the offence. He, therefore, submits that instigation being given by the appellant and on the basis of the same, the offence being committed by another accused person, the appellant will be held liable for the offence that is the offence of murder here. He placed reliance on Section 221 of the CrPC, which provides that if a single act or series of act involved in the offence is of such a nature which makes it doubtful as to what exact offence was committed, the accused may be charged of having committed all or any of such offence or he may, in the alternative, be charged with, having committed someone of the said offence. He has also stressed on Sub-Section (2) of Section 221 of CrPC which provides that in case, the accused is charged with one offence and it appears that he had committed a different offence, he may be convicted of the offence which is shown to have been committed although he was not charged with it.

The learned counsel for the State has also relied on Section 464 of the CrPC, which provides that no conviction or sentence awarded by the Court, shall be deemed to be invalid merely on the ground that no charge was framed or on the ground of omission in the charge framed in the said case. He also has placed reliance on Sub Section (2) of the said Section which provides that if the Court finds that failure of justice had occasioned by framing a wrong charge or by the omission in framing charge, the case can be remanded from a particular stage of the trial. The learned APP, therefore, submits that during the trial of the case, it was noticed by the learned trial Court that the appellant had instigated the co-accused to kill the deceased and as a result of which the deceased was killed and the Court was correct in convicting the appellant for the offence of instigation under Section 109 IPC, although the appellant was not charged with it. To substantiate his arguments, he has placed reliance on the following judgments:

A judgment delivered by the Calcutta High Court in Govinda Chandra Singha Roy vs. Haru Chandra Singha Roy; reported in 1968 Crl. Law Journal 1352, by which the learned Single Judge had held that in case of doubt as to what offence is committed, the learned Court can, based on the facts of the case, convict an accused person of a different charge, which was not framed during the charge framing stage.

ii) A judgment delivered by the High Court of Madras in Yeditha Subbaya vs. Emperor; reported in 1912 Crl. J. 453, by which the learned Single Judge had returned the finding that if facts substantiate the commission of offence of abetment to criminal breach of trust, the conviction can be granted of the said offence, without there being charge framed for it.

iii) A judgment passed by the Delhi High Court in Premwati, wife of Khichchu vs. State of NCT of Delhi on 6 of July, 2010, by which the learned Single Judge had held that conviction of the appellant under Section 376 read with Section 109 of the IPC, was considered to be proper although the specific charge under the said Section was not present.

These are the submissions made by the learned counsels.

Since every criminal case depends on the peculiar facts and circumstances of the said case, this Court would like to narrate the peculiar facts, which are discerned from the evidence on record. In the instant case, there are 8 numbers of eye witnesses and it is noticed that few of the witnesses had stated the earlier occurrence committed before the occurrence of killing of the deceased and few of the witnesses had stated, the only occurrence of killing the deceased. It is seen that before the deceased was hit by the accused persons more specifically, the deceased appellant, Moinuddin or Mohim as stated by the informant, there was a previous incident where the complainant was assaulted by the other accused persons. In the FIR lodged by the complainant, namely, Munej Ali, son of Late Sonamiya, it was stated that while the complainant was returning by the side of the houses of the accused persons, one of the accused persons, namely, Mohim Uddin, called him to his house and by keeping him confined in the porch of the house, demanded money from the complainant to which the complainant refused, saying that he does not owe any money to the accused person and at that juncture, said accused person assaulted him with his hands and sticks. The complainant further stated that when the incident was known to his relatives, his relatives went to the place of occurrence and on offering resistance by the relatives the accused persons mentioned in the said FIR which did not include the appellant, got enraged and assaulted the complainant and his relatives as a result of which, his nephew sustained injury. It is noticed that the name of the appellant did not find place in the said FIR and the complainant who seems to be the eye-witness, stated that consequent upon the assault made by the accused persons, his nephew was injured.

Since the present case rests on ocular evidence, one of the leading case on how to gauge the account presented by eyes witness be referred. The Apex Court in Shahaja @ Shahajan Ismail Mohd. Shaikh Vs. State of Maharashtra, reported in (2022) INSC 724 had observed as follows:-

Keeping the aforesaid principles in the forefront, this court would appreciate the eye witnesses appearing in the instant case.

The aforesaid initial incident which was stated by the complainant in the First Information report as mentioned above, was further stated by the complainant in his statement before the trial Court as PW No. 9 and after stating about the assault made on him by accused person, Mohim, he deposed that his nephew came to rescue him and after rescuing him when he as well as his nephew, i.e., the deceased were returning from the house of accused Mohim, the other accused person, Motor ordered Mohim to assault his nephew and as a result of which, Mohim stabbed on the chest of his nephew. This witness, not only stated in his examination-in-chief that it was Motor who had ordered Mohim to assault the deceased, but also in his cross-examination, he reiterated that Motor had ordered Mohim and thereby, Mohim assaulted the deceased.

The first incident was also narrated by PW No. 2, who stated that while he was coming back from the Eid prayer, he heard cries in the house of accused person, Motor, and on going near, he found the complainant being tied up in the house of Motor, on the allegation of non-payment of loan and that many people gathered at the said place, who on mediating between the parties, got the complainant released and that, thereafter, the accused persons including the appellant, assaulted the deceased who was coming along with the complainant. Although this witness was declared hostile, but the statements made in his examination-in-chief, can be relied upon in adjudicating the case.

Apart from the said two witnesses, there is yet another witness, i.e., PW No. 3 who stated about the previous incident, i.e., the appellant being tied up in the house of accused Motor. This witness also stated that he took part in settling the dispute between the complainant and Motor and that he and others got the complainant released. His further statement is that while the complainant was going back from the house of Motor, he heard hue and cry and on coming to the place of occurrence he saw the deceased lying injured. This witness also turned hostile, but as has been stated above, his statement supporting the prosecution or if it is corroborated by other evidence, the same can be relied on. The Hon’ble Supreme Court in Neeraj Dutta vs. State of NCT, Delhi; reported in 2023 4 SCC 731, has observed as follows:-

In yet another decision delivered by the Hon’ble Supreme Court in Shyam Lal Ghosh vs. State of West Bengal; reported in (2012) 7 SCC 646, the Apex Court had observed as follows:-

It is, therefore, seen from the statements of the aforesaid witnesses that prior to hitting of the deceased, there was another incident, in which the uncle of the deceased was detained, tied up in the house of Motor/Mohim and after the complainant was released, pursuant to a mediation done between complainant and the accused persons, the second incident took place which is connected with the first incident. The sequence of events as narrated by the witnesses reveals that the nephew of PW No. 9, came to know about the assault made on his uncle and then he went to rescue his uncle. This fact is discernible from the evidence of PW No. 6, who is the brother of the deceased. He stated that after the Eid prayer, he, the deceased and PW-1 went to the graveyard for offering prayers to the departed soul and while they were there, they heard cries and came to know that the complainant was taken to the house of Motor and was being assaulted. They also heard that villagers settled the dispute and got the complainant released. This witness thereafter stated that when they reached near the house of deceased appellant, Moin Uddin, accused Motor came out and ordered Moin Uddin to kill his brother, i.e., the deceased, and accordingly, Moinuddin stabbed the deceased. This witness, during his cross-examination further cleared the fact that he was not present while the complainant was taken away by the village elders. However, the said statement is in contradiction to the statement made by the hostile witness, who deposed as PW-2, and who stated that deceased was returning along with his uncle, i.e., the complainant, after his uncle was released by the village elders. The informant had also stated that deceased went to rescue him and that the deceased was assaulted in the process. It is, as such, not established as to whether the deceased and his uncle were coming together.

The fact that the deceased had gone to the burial ground is however established by his daughter who deposed that she and her father went to the same and while they were returning home and reached near the house of Moinuddin, accused persons along with the appellant, appeared and on the instigation provided by the appellant Moinuddin killed her father.

The attack on the deceased was also seen by PWs-4 and 5 and they stated that when the deceased along with his daughter reached the front of the house of Moinuddin, accused person, Moinuddin and others, along with the appellant had assaulted the deceased. Both these witnesses had stated that they had seen the incident from a distance.

Whereas another witness examined as Court Witness No. 1, who was also injured in the incident deposed that while he along with the deceased as well as others were returning home, accused Moinuddin, all of a sudden hurled a blow by a spear on the chest of the deceased. This witness, however, did not state that deceased and his daughter had gone to the burial ground after the prayer and that they came to know about the attack made on the uncle of the deceased in the house of Mohim, although this witness claimed that he was along with the deceased while returning home after the prayer, on the day of Eid.

From the aforesaid evidence, it is, therefore, seen that before hitting the deceased person, the uncle of the deceased was attacked in the house of Mohim. There is also a discrepancy in the statement made by few witnesses, including the complainant, who stated that his nephew, i.e., the deceased came and rescued him and when they were coming back together, Motor ordered Mohim to assault the deceased on his chest. Few witnesses have stated that informant and deceased were not together when deceased was attacked but the complainant had himself stated that the deceased was with him. Be that as it may, the fact remains that the second incident took place as a retaliatory effect of the first incident.

Although when there is ocular evidence, the motive behind the offence is not required to be proved, but it is surprising as to why the deceased was attacked all of a sudden in front of the house of Moin Uddin by the same assailants, who were named in the FIR as well as in the statements of the witnesses. At best, it can be discerned that the second incident is connected with the first incident. There is also a discrepancy in the statement of the witnesses, inasmuch, as PW No. 1, PW No. 4, PW No. 6 and Court Witness No. 1 had stated that it was Moinuddin who had stabbed on the chest of the deceased. However, the complainant had stated in his statement both before the Trial Court as well as in his First Information Report that it was Mohim who had stabbed the chest of the deceased.

The daughter of the deceased was with her father as stated by her and other witnesses, right from going to the prayers for Eid till the death of her father, but she did not state about the information received to the effect that the uncle of the deceased was attacked while they were in the burial ground and she simply stated that while they were returning from the burial ground, the appellant and others appeared and on the instigation of the appellant, her father was killed. It cannot be lost sight of the fact that at the time of occurrence the daughter of the deceased was only 9 years old and she might not know about the attack made on the uncle of the deceased but her stating that appellant had instigated Moin Uddin to kill her father, amongst so many accused persons is also surprising. From the above, it is therefore clear that a number of discrepancies have appeared in the instant case.

It is noticed that 8 (eight) accused persons were charged for killing the deceased person with the aid of Section 149 of the IPC, i.e., in other words, the charge was to the effect that in prosecution of the common object of the unlawful assembly formed by the said accused persons, the deceased was killed. The Trial Court after conclusion of the trial, however acquitted four of the accused persons on lack of evidence and convicted accused, namely, Moin Uddin, under Section 302 IPC and the appellant under Section 302 read with Section 109 of the IPC as well as accused, namely, Mour @ Moub Uddin under Section 324 of the IPC. Although the accused persons, along with the appellant were charged for entering into a common object, but the common object was not found by the trial Court in the facts of the case and one of the accused person was held guilty under Section 302 simpliciter and the appellant was found guilty for murder with the aid of Section 109 IPC. In respect of the other accused person, namely, Mour @ Moub Uddin, the conviction and sentence was inflicted only on the basis of the fact narrated by the Court witness that he was attacked by the said appellant on his heel and as such, the accused person was convicted under Section 324 IPC. The learned trial Court had also observed that evidence established the fact that Moin Uddin had stabbed the deceased with the further finding that no overt act was attributed to other accused persons.

The further point that needs to be adjudicated now is as to whether the appellant could have been convicted under Section 302 IPC with the aid of Section 109 IPC. Section 109 IPC be reproduced below:-

Punishment of abetment if the act abetted is committed in consequence and where no express provision is made for its punishment.— Whoever abets any offence shall, if the act abetted is committed in consequence of the abetment, and no express provision is made by this Code for the punishment of such abetment, be punished with the punishment provided for the offence.

Explanation.— An act or offence is said to be committed in conse-quence of abetment, when it is committed in consequence of the instigation, or in pursuance of the conspiracy, or with the aid which constitutes the abetment.

A bare perusal of this provision makes it crystal clear that if a person instigates another person to commit an offence and if the offence is committed in consequence thereof, the person who instigates, will be inflicted with the punishment prescribed for the said offence.

With that provision in mind it becomes imperative for this Court to see whether there are enough evidence showing that it was the appellant who had instigated the other person/convict to kill the deceased. The evidence that would be relevant for the said purpose would be the statements of PW-1, PW-6, and PW-9. PW-1 in her statement stated that appellant had instigated Moinuddin to kill her father. PW-6 stated in his examination-in-chief that accused person, Motor ordered to kill the deceased and pursuant thereto, Moinuddin stabbed the deceased. However, during his cross-examination, he stated in the suggestion made to him by the defence that it is not a fact that appellant did not order Moinuddin to kill the deceased and the said statement was stated for the second time during his cross-examination, but the fact lies that in his examination-in-chief, he stated about instigation by Motor. PW-9 stated similarly to that of PW-6 to the effect that Motor ordered Mohim to assault the deceased and that Mohim stabbed the deceased. As such, it is seen that two of the eye-witnesses had stated about instigation provided by Motor and only one eye-witness, i.e., the daughter of the deceased stated about instigation given by the appellant. Further, PW-6 stating about the appellant instigating was only in answer to the suggestion posed by the defence. It is no longer res integra that if there are two views possible, the view which is in favour of the accused person will be accepted. It is also seen that the trial Court had acquitted accused Motor for want of evidence. Although in the present case, there were 8 (eight) eye-witnesses to the occurrence, two being hostile, only 3 (three) witnesses had stated about the instigation provided either by Motor or by the appellant and the rest of the witnesses had stated about their seeing the assault either on the complainant or the deceased. The Hon’ble Supreme Court in Bhagwan Singh and Others vs. State of MP; reported in (2002) 4 SCC 85 has held that the view favourable to the deceased should be taken into account. The relevant portion is quoted hereinbelow.

The daughter of the deceased was also examined by the Magistrate and her statement was recorded under Section 164 of the CrPC, wherein she stated that the appellant ordered the group of the accused persons to kill her father and that Moin Uddin had hit her father with the weapon. It has been held by the Supreme Court that the statement of the witnesses recorded under Section 164 CrPC can be used both for corroboration and contradiction, during the statement of the said witness before the trial Court. In the present case, although the statement of the daughter of the deceased can be used to corroborate her statement adduced by her before the trial Court, but the fact remains that there were two other witnesses who had stated that another accused who is acquitted by the trial Court to have instigated Moin Uddin/ Mohim to kill the deceased.

It is further seen that under Section 109 of the IPC, if an act is committed in pursuance to the instigation given by another person, the person, who instigates will also be punished with the punishment provided for the offence committed, but it is not provided in the said provision that the person who instigates will also be convicted as that of the other, who commits the offence. In the present case, the appellant was convicted under Section 302 read with Section 109 IPC. Had it been a case of conviction of the appellant under Section 302 IPC, read with Section 149 of the IPC, the matter would have been different because under Section 149 IPC, a member of the unlawful assembly would be held liable for the offence committed. However, the case is not the same with regard to Section 109 of the IPC.

It is also noticed as has been placed by the learned counsel for the appellant that the appellant was not charged for the offence under Section 109 IPC. It is a settled position of law that in case, the charge is not framed but during the trial, it is seen that there should be another charge or the charge should have been different then in that eventuality, the trial Court may alter the charge or add a new charge. However, in the alternative, if the facts of the case demonstrates and proves commission of an offence which is in aid to the main offence and no prejudice is caused, the Trial Court will be at liberty to punish the offender under the main Section in aid of another provision. In the instant case. Charges were framed under Section 302 IPC, against the appellant and others, with the aid of Section 149 IPC, and the Trial Court having failed to find materials under Section 149 IPC, had convicted the appellant under Section 302 with the aid of Section 109 IPC. In the facts of the present case, the materials supporting the conviction of the appellant for abetment to the offence of murder, are lacking beyond reasonable doubt since there are discrepancies in the evidence. However, non-framing of charge under Section 109 IPC against the appellant will not be per se fatal in the instant case. The further requirement that in case, no prejudice is caused to the appellant while convicting the appellant with the aid of Section 109 IPC, is concerned this Court would like to state that prejudice is not caused to the appellant, inasmuch, as the question regarding the instigation given by him, to Moin Uddin as stated by PW-1, was put to him in his examination under Section 313 of the CrPC to which the appellant replied that he is innocent. The Hon’ble Supreme Court in Willie Slaney vs. State of MP reported in AIR 1956 SC 116, had held as follows:

***** ***** ***** *****

The Hon’ble Supreme Court had as such, held that error, omission or irregularity in the charge or even total absence of a charge, will not vitiate the trial unless prejudice to the accused is shown. In the instant case, although it can be held that no prejudice was caused to the appellant, but the facts of the case could not demonstrate with clear evidence that it was the appellant, who had instigated the main perpetrator of the offence. Rather there are two versions with regard to the perpetrator of the offence to the effect that complainant stated that Mohim killed the deceased and other witnesses stated that it was Moin Uddin who killed the deceased. When there are two versions in respect of the main perpetrator of offence and different versions with regard to the instigator also, it is not proved beyond reasonable doubt that appellant can be convicted under Section 302 read with Section 109 IPC.

In view of the findings mentioned herein above, this Court finds it fit to interfere with the Judgment and Order dated 07.02.2017, passed by the learned Additional Sessions Judge, FTC, at Silchar, in Sessions Case No. 20 of 2007, convicting the appellant under Section 302 IPC read with Section 109 of the IPC. Resultantly, the said judgment and order is set aside and quashed, qua the appellant.

The appellant, namely, Md Motibur Rahman Laskar is hereby acquitted. Bail bonds to be discharged.

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