Page No.# 1/9 GAHC010261872024 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : I.A.(Crl.)/1263/2024 BODIOT ZAMAN SK @ KALAM SEIKH S/O. ABDUS SABUR SHEIKH, R/O. AIRONJONGLA PART-III, P/S AND DIST. DHUBRI, PIN-783323 VERSUS THE STATE OF ASSAM REP. BY THE PP, ASSAM Advocate for the Petitioner : MS S JAIN, MR. B D KONWAR SR. ADV., MS S JAIN,MS. B SOREN, MS M ZOMUANPUII,H BAISHYA, MRS J M KONWAR, MR. S H RAHMAN, MR J SINGH Advocate for the Respondent : PP, ASSAM, Linked Case : I.A.(Crl.)/1260/2024 SOBUR ALI @ ABDUS SABUR SHEIKH S/O. LATE SUKURALI R/O.AIRONJONGLA PART-III P/S. DHUBRI DIST. DHUBRI PIN-783323. VERSUS THE STATE OF ASSAM REP. BY THE PP, ASSAM. ------------ Advocate for : MS S JAIN Advocate for : PP ASSAM appearing for THE STATE OF ASSAM Page No.# 2/9 BEFORE HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA HONOURABLE MR. JUSTICE KAUSHIK GOSWAMI ORDER Date : 29.07.2025 (M. Zothankhuma, J) Heard Mr. B. D. Konwar, learned senior counsel for the applicants in I.A. (Crl.)1263/2024 and I.A.(Crl.)1260/2024, wherein a prayer has been made for suspending the sentence imposed upon the applicants, namely, Bodiot Zaman Sk. @ Kalam Seikh and Sobur Ali @ Abdus Sabur Sheikh. 2. The applicants’ counsel submits that Kalam Seikh had been convicted under Section 302 of the IPC by the learned Addl. Sessions Judge, Dhubri in Sessions Case No. 159/2016 and has accordingly been sentenced to undergo rigorous imprisonment for life with fine of Rs.5,000/-, in default, rigorous imprisonment for six months. On the other hand, Sobur Ali was convicted under Sections 302 and 324 of the IPC. He was also convicted under Section 307 of the IPC. He was thus sentenced to rigorous imprisonment for life with a fine of Rs.5,000/-, in default, rigorous imprisonment for six months under Section 302 of the IPC. He was also sentenced to undergo rigorous imprisonment for 2 years with a fine of Rs.1,000/-, in default, rigorous imprisonment for one month under Section 324 of the IPC. Sobur Ali was also sentenced to undergo rigorous imprisonment for 8 years with a fine of Rs.2,000/-, in default, rigorous imprisonment for two months under Section 307 of the IPC. 3. The applicants’ counsel submits that Kalam Seikh was a minor at the time of the commission of the offence of murder and as such, the issue of juvenility of Kalam Seikh is to be decided in the present case, prior to deciding the appeal. He submits that the document that had been submitted to this Court for Page No.# 3/9 deciding the issue of juvenility of Kalam Seikh, not having been accepted by the learned Trial Court, on the ground that the same was bogus and fake, an ossification test has to be conducted by a Medical Board. 4. The applicants’ counsel submits that though the injured eye witness Bakkar Ali (PW8) had identified Kalam Seikh, as the person who had inflicted a blow with a dagger in the abdomen of the deceased Sahid Ali and Sobur Ali, as the person, who inflicted a blow in the back of the head of Sahid Ali, the evidence of PW5, who is the doctor, who had first examined PW8 and the evidence of PW9, who had conducted the post-mortem examination on the dead body of Sahid Ali, shows that there was no injury on the scalp of the deceased. As such, the deceased could not have died due to any action of Sobur Ali, who has been alleged to have hit the back of the head of the deceased with a knife. 5. The applicants’ counsel submits that the post-mortem report dated 11.12.2013, regarding the bruise position on the deceased, as reflected in Serial No. 1 of “external wounds”, shows that the injury that has been occasioned on the head of the deceased, was on the front portion of the scalp of the deceased and not on the back of the head of the deceased, as had been stated by PW8 in his evidence. He also submits that the said injury on the scalp of the deceased was a simple injury. He accordingly submits that when the post-mortem report and the evidence of PW9 shows that the deceased had not died due to any injury on the scalp of the deceased, there was no occasion for the learned Trial Court to have convicted Sobur Ali for causing the death of the deceased. In respect of Kalam Seikh, the applicants’ counsel submits that the said applicant being a juvenile, the case of Kalam Seikh would have to be decided by the Page No.# 4/9 Juvenile Board. 6. Ms. B. Bhuyan, learned Addl. Public Prosecutor for the State, on the other hand, submits that a reading of the evidence adduced by the prosecution, especially the injured eye witness (PW-8) and the post-mortem report, read with the evidence of PW9, would go to show that in the opinion of the doctor, the death of the deceased was due to haemorrhage and shock, as a result of injuries sustained over the body of the deceased, as described in the post- mortem report. All the injuries were ante-mortem caused by a moderately heavy, double edged, pointed tip sharp cutting weapon, which was homicidal in nature. She submits that when the evidence of PW8 has categorically shown the presence of the applicants Kalam Seikh and Sabur Ali at the time of commissioning of the crime and he has seen them inflicting wounds on the deceased, the involvement of the applicants in the death of the deceased being proved, there was no occasion for suspending the sentence of the applicants. Accordingly, the applications under Section 389(2) of the IPC/430 of the BNSS should be set aside. 7. We have heard the learned counsels for the parties. 8. The extract of the evidence of the PW8, who is the injured eye witness, is reproduced hereinbelow as follows:- “When we reach near the house of Anowar Bepari, the accused Kalam suddenly came there and inflicted a blow with a dagger in the abdomen of Sahid Ali. Accused Sabur Ali inflicted a blow with a knife on the backside of head of Sahid Ali and he sustained injury. Then all the other accused persons attacked Sahid Ali with sharp pointed weapon inflicted injuries on the back of Sahid Ali. When I tried to rescue Sahid Ali, accused Sabur inflicted a blow with a knife on my hand Page No.# 5/9 and I suffered injury on my left hand. (The accused showed the injury mark on his left hand above wrist.) The accused Anowar Bepari inflicted a blow on the backside of my head. Hearing hue and cry, Halima Bibi rushed to the place of occurrence and she was also assaulted and she sustained injury on her abdomen but I did not exactly notice who had inflicted injuries on Halima. Then we were taken to hospital by Nabarul, Giasuddin, Karim Sikdar and Babu.” 9. The bruise position, size and nature and colour, pertaining to the deceased in the post-mortem report dated 11.12.2013, relating to Serial No. 1 of “External Wounds” states as follows:- “External wounds: - 1. Incised wound of size (7 cm x 4 cm x scalp deep) present over left parietal scalp located 2 cm left to midline and 13 cm above supraciliary ridge margin of which is clean cut.” 10. In our opinion, the external wounds on the scalp of the deceased would show that there was a injury on the scalp of the deceased. Just because PW8 has stated that the injury caused by Sobur Ali was on the back of the head of the deceased does not mean that it should be exactly on the back of the head of the deceased. The angle, manner and the distance of the position of the witness would have a bearing on how an eye witness sees an act and his evidence would also depend upon various other factors such as bight and the act and position of persons who he has been watching. Further, it would not be surprising if the description of an event, as seen by the eye witness, is not exactly accurate to the last detail. There cannot be minor discrepancies. The post-mortem report having clearly shown that there was an injury on the scalp of the deceased somewhere near the back of the head of the deceased, the description of the act of the applicant Sobur Ali in inflicting a blow on the back of the head of the deceased by PW-8 does not contradict the Post-Mortem report. The same, in our view, does not change the fact that an injury has been Page No.# 6/9 caused on the scalp of the deceased, which, in terms of the evidence of PW8, has been caused by Sobur Ali. 11. In the case of Shahaja @ Shahajan Ismail Mohd. Shaikh Vs. State of Maharashtra, reported in (2023) 12 SCC 558, the Supreme Court has held that a witness is liable to get confused or mixed up when examined later on and the powers of observation is deferred from person to person. The Supreme Court in para 27 has held as follows:- “27. The appreciation of ocular evidence is a hard task. There is no fixed or straight-jacket formula for appreciation of the ocular evidence. The judicially evolved principles for appreciation of ocular evidence in a criminal case can be enumerated as under: I. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. II. If the Court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. III. III. When eye-witness is examined at length it is quite possible for him to make some discrepancies. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence. IV. Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context Page No.# 7/9 here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. V. Too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny. VI. By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen. VII. Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details. VIII. The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another. IX. By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder. X. In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person. XI. Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on. XII. A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub- conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him. XIII. A former statement though seemingly inconsistent with the evidence Page No.# 8/9 need not necessarily be sufficient to amount to contradiction. Unless the former statement has the potency to discredit the later statement, even if the later statement is at variance with the former to some extent it would not be helpful to contradict that witness.” 12. The evidence of PW9, in his cross-examination, which is to the effect that the scalp of the deceased was intact and there was no injury in the scalp or that the presence of surgical stitches meant that the deceased was earlier treated by some surgeons, in our view, also does not change the fact that there was an injury on the scalp of the deceased, as has been mentioned in the examination- in-chief of PW-9. PW-9 in his examination-in-chief has stated as follows:- “On 11.12.2013, I was posted as Demonstrator at Dept. of Forensic Medicine, G.M.C.H. Guwahati. On that day, I have done post-mortem examination on the dead body of Sahid Ali, 39 years, male, vide reference Bhangaghar P.S. G.D.E. No.235 dated 11.12.2013. The deceased was identified by HG Asiruddin Ahmed and Abdul Karim Sikdar, who was the father-in-law of the deceased. On examination, I found the following injuries:- 1) Incised wound of size 7 ccm x 4 cm x scalp deep, present over left parietal scalp located 2 cm left to midline and 13 cm above supraciliary vidge, margin of which is clear cut. 2) Surgical stitched wound of length 8 cm present over right side of abdomen. On removal of stitches, a stale wound of size 8 cm x 3 cm x abdominal cavity (deep) is detected which is spindle shaped with clear cut margin and fishtailing on right side, located 2 cm right to midline and 1 cm above umbilicus.” Further, the opinion of the doctor, who wrote the post-mortem report, is to the following effect :- “Death was due to haemorage and shock as a result of injuries sustained over the body as described. All the injuries were antemortem caused by moderately heavy, double edged, pointed tip sharp cutting weapon and homicide in nature.” Page No.# 9/9 13. On considering all the above, we are prima facie of the view that no case for suspending the sentence of the applicants has been made out. The applications are accordingly rejected. However, the question of juvenility of Kalam Seikh would have to be considered by this Court after receiving a report from the learned Trial Court. 14. Accordingly, in view of the stand taken by the applicant Kalam Seikh, we are of the view that the learned Trial Court should make a report with regard to the juvenility of Kalam Seikh, keeping in view Sections 9 and 94 of the Juvenile Justice (Care and Protection) Act, 2015. The learned Trial Court is accordingly directed to constitute a Medical Board for determining the age of Kalam Seikh by an ossification test in accordance with law to be conducted by the Medical Board. The report on the juvenility of Kalam Seikh should be made at the earliest and preferably within a period of 6(six) weeks. 15. The interlocutory applications are accordingly dismissed and disposed of. 16. A copy of this order be sent to the Court of the learned Addl. Sessions Judge, Dhubri. JUDGE JUDGE Comparing Assistant