ABDUL KHOLIL @ KHOLIL vs STATE OF MEGHALAYA

2026:MLHC:1182-DB
Serial No. 01
Supplementary List
HIGH COURT OF MEGHALAYA
AT SHILLONG


Crl.A. No. 56 of 2024 with
Crl.A. No. 58 of 2024
Reserved on: 20.07.2026
Pronounced on: 16.10.2026
Uploaded on:16.10.2026
Whether the operative part or full judgment is pronounced: Full Judgment



Crl.A. No. 56 of 2024

1. Shri. Abdul Okil
Aged about 43 years
S/o Shri. Abdul Jolil Sk,
R/o Pushkunipara,
PS: Phulbari, West Garo Hills,
Meghalaya
2. Shri. Jahanur Islam
Aged about 38 years
S/o Shri. Abdul Jolil Sk,
R/o Pushkunipara,
PS: Phulbari, West Garo Hills,
Meghalaya
...Convicts/Appellants
-Versus-
1. The State of Meghalaya
Represented by Chief Secretary
Government of Meghalaya
…Respondent
Crl.A. No. 58 of 2024
Shri. Abdul Kholil @ Kholil
Aged about 48 years,
Son of Late Bodiot Zaman,
Resident of Pushkunipara Village,
P.S Phulbari, West Garo Hlls District,
Meghalaya
...Appellant/Accused
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-Versus-
State of Meghalaya
Represented by the Commissioner and Secretary,
Department of Home (Police),
Government of Meghalaya,
Shillong
…Respondent

Coram:
Hon’ble Mr. Justice W. Diengdoh, Judge
Hon’ble Mr. Justice B. Bhattacharjee, Judge

Appearance:
In Crl.A. No. 56 of 2024
For the Petitioner/Appellant(s) : Mr. S.P. Mahanta, Sr. Adv. with
Ms. S. Chettri, Adv.
Mr. M. Lyngdoh, Adv.

For the Respondent(s) : Mr. H. Kharmih, Addl. PP.

In Crl.A. No. 58 of 2024
For the Petitioner/Appellant(s) : Mr. S.A. Sheikh, Adv.
Mr. A. Ahmed, Adv.

For the Respondent(s) : Mr. N.D. Chullai, AAG with
Mr. E.R. Chyne, Asst. PP.


i) Whether approved for reporting in Yes/No
Law journals etc.:
ii) Whether approved for publication
in press: Yes/No
JUDGMENT
Per W. Diengdoh, J.
1. These two criminal appeals arose from a common cause and with
identical facts and circumstances, as such, it is deemed proper and
convenient to pass a common judgment, which is done so herein.
2. The judgment and sentence dated 30.09.2024, whereby three
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accused persons namely, Shri. Abdul Kholil & Khalil, Okil @ Abdul Okil
and Shri. Jahanur Islam @ Sk were found guilty for offences punishable
under Section 341/448/302/34 IPC and have been sentenced to undergo life
imprisonment for the offence punishable under Section 302 IPC as well as
punishment of imprisonment of one year for the offence under Section
448/34 IPC and one month for the offence under Section 341/34 IPC
together with fine of ₹ 25,000/- (Rupees Twenty Five Thousand) only, in
case of default, to undergo an additional one year imprisonment for the
offence under Section 302/34 IPC, is being assailed by the appellants in
these two separate appeals.
3. The genesis of the case stems from an FIR dated 13.07.2016,
lodged by one Shri. Sahadot Ali before the Office In-charge, Phulbari, West
Garo Hills District, making an allegation against four persons, three of
whom are the appellants herein, that they were involved in the grievous
assault on the person of his brother-in-law Shri. Bodial Sk., which incident
occurred on 12.07.2016 at about 08:00 am in a place called Kalithan Market
(Pushkunipara), as a result of which his brother-in-law succumbed to his
injuries at about 02:00 pm on the same day while on the way to a hospital.
4. The FIR was registered as Phulbari P.S. Case No. 25(7) of 2016
under Section 341/448/302/34 IPC and investigation was directed to be
conducted. The Investigating Officer (I/O) after completion of his
investigation has filed the charge sheet in which he has detailed the brief
facts of the case as under:
“The prosecution story of the case is that on 13th July, 2016 the
complainant Shri Sahadat Ali S/O Hashem Ali of Village
Pushkunipara under Phulbari PS Dist. West Garo Hills
Meghalaya, lodged a written FIR to the effect that on 12/7/2016 at
about 8:00 Am while Shri Bodial Sk S/O Sajemuddin Sk of village
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Borosangli Assam his brother in-law was proceeding to Kalithan
market suddenly the accused persons namely Shri Kholil Sk, Shri
Bashirul Sk, Okil Sk and Jahanur Sk obstructed his way and
attacked him and anyhow he ran away to the relative house namely
Islam Hoque of Pushkunipara out the accused persons followed
him and assaulted him by lathi etc. Due to which he received head
injuries and the accused persons fled away. The victim was
brought to Phulbari CHC but after first aid he was referred for
better treatment on 12/07/2016 but at about 2:00 Pm on the way
to Hospital he expired. The dead body of the victim brought to PS
for observing legal formalities. ”
5. The Trial Court taking cognizance of the matter has accordingly
framed charges under four head against three accused person who are the
appellant herein, the charges being one under Section 341,448,302 along
with Section 34 IPC. The prosecution then examined eight prosecution
witnesses and exhibited as many as five documents. The alleged murder
weapon was also produced in court as Exhibit-2. On evidence being duly
recorded, the Court then noted the statement of the appellants respectively
under Section 313 CrPC. The accused/appellants were then asked if they
would like to adduced evidence on their part to which they replied on the
positive and accordingly three defense witnesses were produced before the
court, examined and discharged.
6. Finally, the Court after hearing the arguments of the respective
parties has vide the impugned judgment and sentence imposed the
punishment against them as aforementioned.

7. Mr. S.P. Mahanta, learned Sr. counsel along with Ms. S. Chettri,
learned counsel for the appellant has submitted that the evidence recorded
by the learned Trial Court has revealed that there is practically no credible
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or cogent evidence to implicate the appellant Shri. Abdul Okil and the other
appellant Shri. Jahanur Islam, as such the impugned judgment and sentence
finding them guilty cannot be sustained.
8. While referring to the evidence of the prosecution witnesses, the
learned Sr. Counsel has submitted that PW-1 who is the informant who has
filed the FIR to set the investigation and the trial in motion is hearsay
witness who did not even write the FIR himself but has stated that the FIR
was written by another person who was not named or even examined in
these proceedings. PW-1 has also admitted that he does not know the
contents of the FIR as it was never explained to him. The FIR, therefore
cannot be a true account about the incident alleged to have happened
involving the abovementioned appellants.

9. As to the evidence of PW-2, PW-3 and PW-4, wherein they have
stated that two persons entered the room where the deceased victim was
assaulted by the abovementioned appellants, PW-2 and PW-3 has not
specifically identified or named the appellants, while PW-4 has mentioned
their names in her examination-in-chief, whereas in her cross-examination
she has admitted that when the incident took place she did not witness the
same as she was in the kitchen. This by itself would show that the evidence
of this witness is not reliable.
10. Again, while referring to the evidence of PW-3 when in course of
her deposition in court, she had identified the appellant Abdul Okil and
appellant Jahanur Islam who were present in the dock, but she has reiterated
that she did not see them at the place of occurrence. This dock identification
without the process of Test Identification Parade (TIP) to corroborate the
presence of both the appellants would only show that this witness is also
unreliable as far as her testimony is concerned, submits the learned Sr.
counsel.
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11. The learned Sr. counsel has also submitted that the learned Trial
Court has not properly appreciated the evidence in favour of the appellants
inasmuch as from the statement of the abovenamed appellants recorded
under Section 313 IPC as well as the evidence tendered on their behalf
through DW-1 and DW-2 respectively, it is clear that the plea of alibi has
been proved since the DWs have deposed in court that the appellants were
with them involved in collections of pineapple’s to be sold at the market.
The fact that these two DWs were together with the appellants herein in the
morning of the date when the incident allegedly happened, therefore it
cannot be proved beyond reasonable doubt that it was the appellants who
were involved in the alleged assault of the deceased victim.
12. Even with regard to the discovery and seizure of the alleged
weapon of offence, the learned Sr. counsel has submitted that the learned
Trial Court has failed to take into account the lack of FSL report to confirm
whether the crime was actually committed by the appellants nor was any
forensic report of the blood stained said to be found in the weapon filed or
proved before the Trial Court.
13. Since the evidence against the appellants represented by the
learned Sr. counsel is not adequate and foolproof to connect them to the
alleged offence, there is also no proof of any common intention in the said
commission of the crime. The conviction and sentence of the appellants
herein is liable to be set aside and quash and prayer for the same is
accordingly made herein, submits the learned Sr. counsel.
14. Mr. S.A. Sheik, learned counsel appearing for the appellant Abdul
Kholil @ kholil, in Crl. Appeal No. 58 of 2024 on his part has raised a
number of contentions while assailing the impugned judgment and
sentence. The initial objection was to the delayed filing of the FIR, which,
according to him, the alleged incident took place on 12.07.2016, whereas,
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the FIR was actually filed on 13.07.2016, the delay was never explained by
the informant.
15. The next contention of the learned counsel is that though the FIR
was lodged belatedly, yet the role of the eye-witnesses has not been
mentioned therein, coupled with the fact that none of the said eye-witnesses
have filed the FIR.
16. As to the cause of death of the victim, the learned counsel has
again submitted that the prosecution has failed to give a detailed account
relating to the initial medical treatment given to the victim, right from the
time he was said to have been brought to the Phulbari PHC till about 2.00
p.m. on the same day when it was apparent from the FIR that he was still
alive till such time, his subsequently death can only be attributed to lack of
adequate medical treatment for which the appellant cannot be faulted,
submits the learned counsel.
17. It is also the submission of the learned counsel that when the TIP
was conducted, only the appellant Abdul Kholil was subjected to the same
and more so, the TIP was conducted in the presence of the IO as is evident
from the testimony of PW-7. Therefore, the result of the TIP has no
evidentiary value and the same cannot be taken into account as far as this
appellant is concerned, submits the learned counsel.
18. The learned counsel has also questioned the veracity of the
evidence of the alleged eye-witnesses that is, PW-2, PW-3 and PW-4
respectively, where in their statement under Section 161 CrPC they have
stated that three persons were involved in the assault but only two out of
these three persons were actually inside the house assaulting the victim. In
their evidence in court these two witnesses have stated that two persons
assaulted the victim with the stick, but the prosecution has failed to prove
that it was the appellant who has hit the victim on the head. Even if the said
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stick which was seized by the police, believed to have been the weapon
used for the assault, since there is no FSL report in this regard, particularly
fingerprints report to ascertain as to who among the accused persons has
used the lathi, therefore there is no certainty that the alleged assault was
inflicted by the said lathi. In fact, PW-2 in her cross-examination has
admitted that she has not seen the beating by the accused persons, though
she has admitted that she knows the appellant Abdul Kholil by name and
face.
19. In view of the apparent contradictions in the evidence of the
prosecution witnesses, the role of the appellant Abdul Kholil has not been
specifically determined, the appellant is therefore entitled to benefit of
doubt and may be acquitted as such, submits the learned counsel.

20. Mr. H. Kharmih, learned Addl. PP appearing for the State
respondent in Criminal Appeal No. 56 of 2024, in his response has
submitted that from the evidence what is seen is that PW-1 who is the
complainant who has filed the FIR in his deposition in court has narrated
the sequence of events of how the deceased victim was firstly attacked and
assaulted by four persons (three of whom are the appellants in these two
appeals), the assault happened at Khalitan Market and that the victim
managed to escape and ran to his relative’s place Islam Haque which is
nearby. But out of the four, three persons pursued the victim and entered
the house where they assaulted him with a lathi and fled away. This was
seen by PW-2 who was one of the eye-witnesses when she also narrated the
incident where she saw three to four persons running and chasing the
deceased victim and one of the accused that is, the appellant Abdul Kholil
also entered the room where he assaulted the victim with the pestle used for
crushing rice, this witness also saw the victim being beaten by two persons
whereupon she start shouting at them to stop beating but they did not
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listened.
21. Similarly, PW-3 in her deposition has also stated that she saw the
victim running and the appellant Abdul Kholil along with other three
persons following him. When the victim entered the house of Islam Haque,
the appellant Abdul Kholil and his son also entered the house and lock the
door. From the window this witness saw that both the accused persons were
beating the victim with a stick use for crushing rice. This witness also
shouted at the assaulters to stop their beating but they did not listen. The
evidence of PW-2 and PW-3 was corroborated by PW-4 who has also
narrated the incident in the same manner as has been related by the PW-2
and PW-3.
22. The learned Addl. PP has also submitted that PW-6 who is the
medical officer who has conducted the postmortem, in her examination-in-
chief she has stated that the death of the victim was caused due to
hemorrhage and shocked as a result of head injury caused by a heavy blunt
object. The probable time of death is between 24-26 hours. All injuries are
ante-mortem, which means such injuries were sustained before death
occurred.
23. The learned Addl. PP went on to submit that from the evidence of
the PW-7 who is the Magistrate who had conducted the TIP, one of the
accused persons namely Abdul Kholil was identified in such TIP as one of
the perpetrators.
24. On the evidence of the defense witnesses, the learned Addl. PP has
submitted that DW-1 in his evidence, he has stated that on the date of the
occurrence he was with appellant Abdul Okil at about 11:00 am when both
of them went home together. However, this witness has not been able to say
anything about the whereabouts of the said appellant prior to 11:00 am,
when the incident is said to have taken place at 08:00 am. Similarly, DW-2
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in his evidence has stated that on that fateful day he had hired the pickup of
appellant Jahanur Islam at about 04:00 am and later they start the work from
10:00 am to 10:30 am selling pineapples at Chibanang market. This witness
cannot ascertain the whereabouts of this appellant at about 08:00 am when
the incident occurred. This would only show that the defence witnesses
have not been able to establish the plea of alibi as regard the case of the
appellants Abdul Okil and Jahanur Islam.
25. On the contention that common intention as far as the commission
of the crime is concerned has not been established, the learned Addl. PP has
submitted that for common intention to be manifested, it is not necessary
that there must be a meeting of persons to hatch a plan, it can develop at the
spur of the moment. The very act of the appellants in chasing after the
victim after they have assaulted him at the market and their joint attacked
and assault upon such victim would only demonstrate the fact that common
intention to commit the crime has been proved. In this regard, the case of
State of Rajasthan v. Gurbachan Singh & Ors., (2022) 15 SCC 817, para
17 and 18 has been cited to prove this point.
26. This Court has noted the contention and submission raised by the
learned counsels for the respective parties. What is apparent is that from
whatever has been stated in the FIR, upon investigation, the IO has filed the
chargesheet, finding the information given by the informant/complainant
well established, this, after he has examined the complainant, visited the
place of occurrence, prepared the sketch map and seized the alleged murder
weapon, which is said to be a lathi or an implement or pestle used to grind
rice. The statement of the eye-witnesses was also recorded by the IO in
course of his investigation. The deceased victim Bodial SK, according to
the prosecution was assaulted by the three appellants herein along with a
juvenile whose matter was taken up by the Juvenile Justice Board. The
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offence said to have been committed by the appellants/accused comes under
section 341/448/302/34 IPC.
27. The factum of the incident could be gathered, at the first instance
from whatever has been stated in the FIR, the informant in his FIR has
named four persons, the three appellants/accused herein, as well as another
who was later found to be a juvenile, as those persons who have assaulted
the deceased victim who was also the brother-in-law of the informant. The
informant has also described the manner in which the deceased victim was
firstly assaulted at Kalithan Market (Pushkunipara) at about 08:00 am on
12.07.2016 whereupon he was taken for treatment at Phulbari CHC,
however, on being referred for better treatment elsewhere, on the way to
Guwahati, he succumbed to his injuries at about 02:00 pm on the same day.
The informant however was not an eye witness to the incident when in the
cross-examination before the Trial Court as PW-1, he admitted that he has
not seen the incident with his own eyes but has received information about
the same from one villager. He has also admitted that the FIR was written
down by one vendor of Phulbari but the same was not read out and
explained to him. On its own, the deposition of the informant/PW-1 may
not stand the scrutiny of law, since the said villager who has narrated the
incident to him has not been brought to the witness box and also the person
who has drafted the FIR was also not cited as a prosecution witness.
However, from the evidence of the other witnesses, the factum of the
incident and the involvement of the deceased victim has been confirmed.
There appear to be no material contradiction as far as the narration of the
incident made by the informant PW-1 and the other prosecution witness is
concerned.
28. PW-2 in her evidence has narrated the sequence of events
witnessed by her when she said that on the day of the incident at about 08:00
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am she was in her kitchen when she looks outside, she saw one person
running with three to four persons following him, she saw the first person
entered the house of one Islam. She also saw the accused/appellant Abdul
Kholil entered into the same room where the victim has entered and from
her window, she saw the victim being beaten by the accused with a
stick/pestle use for crushing rice. She also said that she saw the victim being
beaten by two persons. In her cross-examination she has admitted that
though she does not know the name of the victim she has clearly named
appellant/accused Abdul Kholil as one of the two persons who ran after the
victim. She did admit that she has not seen the beating by the accused
persons as she was standing outside the house and the door was closed from
inside.

29. PW-3 is also said to be another eye witness to the incident, when
she too has stated in her deposition in court that on that day at 08:00 am
while she was making tea in the kitchen, on hearing some noise from
outside, she saw the deceased victim was running and appellant/accused
Abdul Kholil along with three other persons were following him. This
witness has also stated that the deceased victim entered the house of one
Islam Haque and Abdul Kholil and his son also entered the house and
locked the door. She further stated that she rushed to a certain spot to see
what is happening and from the window of her house she saw the two
accused person beating the victim with the stick used for crushing rice.
Again, this witness went on to say that she and others shouted from outside
to the accused persons to stop beating the victim, but they did not listen and
only when they finished beating him, they opened the door and pushed the
victim outside where he fell on the ground, after which the accused persons
fled from the seen. In her cross examination, this witness has reiterated that
“It is not a fact that since I was standing outside the room as such I had not
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seen anything who was beaten and by whom .”, she also says that “It is not
a fact that no such incident ever took place . ”.
30. PW-4 in her deposition in court has corroborated whatever has
been stated by PW-2 and PW-3 as far as the factual aspect of the incident
is concerned and that she has further stated that “The persons who assaulted
the deceased are present in the court today and I can identify the accused
who assaulted the deceased as Abdul Kholil, Okil and Jahanur…”. In her
cross-examination she has stated that “It is not a fact that I have not
witnessed the alleged incident . ”. It may be mentioned that PW-2 and PW-
4 have also stated in their deposition that they were tenants in the house of
Islam Haque.
31. PW-5 is the seizure witness in whose presence the rice grinding
stick said to be the murder weapon was seized by the police from the place
th
of occurrence. This witness has stated that on 12 at 10:30 am the police
asked him to accompany them to the place of occurrence and on reaching
there he saw a pool of blood near the door. The seized stick/pestle (P-Ext-
2) which is used to crush rice traditionally is measured about 6-7 feet
approximately. This witness has further identified the said wooden stick
when it was produced in court on the day of his deposition.
32. PW-6 is the doctor who has conducted the postmortem on the
deceased victim. In her evidence she has stated that at the relevant point of
time she was posted as SDMO Tura and that on 12.07.2016, the dead body
of (L) Bodial Sheikh was produced at the Civil Hospital morgue. On
12.07.2016 at 11:35 am she conducted the postmortem. This witness has
observed the injuries on the dead body which are noted down in “Sl. No. 4
(b) laceration on scalp on the mid line more on the right side of head 2.
Laceration on the scalp on the left parietal region, fracture on the sagittal
suture and coronal suture and fracture on the right parietal bone, subdural
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hemorrhage and sub arachnoid hemorrhage and other injuries” this
witness has also stated that “During the post mortem, I observed that the
death was caused due to hemorrhage and shock due to head injury caused
by heavy blunt object”.
33. On an analysis of the evidence of the prosecution’s witnesses,
particularly those of the said eye-witnesses and on an observation of what
has been noted hereinabove, this Court is convinced that the deceased
victim was indeed assaulted and as a result thereof, he later succumbed to
his injuries. However, the Informant, who has deposed as PW-1, though in
his FIR he has named four persons, including all the three appellants herein
as the perpetrators who had assaulted his deceased brother-in-law at the
market, he himself has not seen the incident, but was told about the same
by one villager. This villager was never brought to Court as a witness,
therefore, to say that the evidence of PW-1 is hearsay is correct.
34. The fact that the deceased victim was seen running from the said
market to the house of Islam Haque cannot be denied as almost all the eye-
witnesses, that is, PW-2, PW-3 and P-4 respectively have consistently
stated in their deposition in Court that they have seen the victim being
pursued by three or four persons to the house of Islam Haque. The actual
assault which has later resulted in the death of the victim happened there.
35. Again, as to what took place at the house of Islam Haque, the
recollection of the said eye-witnesses is that they saw the victim entered the
room, thereafter, two persons ran after him and locked the door of the
house. One of those persons have been identified as Abdul kholil (one of
the appellants herein). The witnesses said they saw the two persons beating
the victim with a lathi or pestle used for grinding rice. However, none of
the said witnesses could say for sure as to who actually had used the said
lathi, or in other words, who has dealt the crucial blow. Post mortem report
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did indeed reveal that there were present a number of injuries and fracture
and laceration on the scalp and right side of the head etc., and that the cause
of death was due to hemorrhage and shock due to head injury caused by
heavy blunt object. This will only fortify the fact that the deceased victim
died a homicidal death.
36. This Court has reviewed the evidence of the said eye-witnesses to
ascertain as to whether any of them has pinpoint the actual person or
persons who has caused the fatal blow upon the deceased victim. One of
the eye-witnesses has said two persons entered the room and started beating
the victim with the lathi/pestle, another witness (PW-4) said three persons
entered the room and assaulted the victim, however, no specific
identification as to who amongst the appellants/accused persons was
responsible for the ultimate death of the victim was ever made by the said
witnesses. The name of one of the accused/appellants, that is, Abdul Kholil
was brought out in course of evidence, when PW-2, PW-3 and even PW-4
has said that he was the one they saw at the scene.
37. A cumulative reading of the evidence of PW-2, PW-3 and PW-4
would however establish the fact that they witnessed the deceased victim
running into the house of Ismal Haque and two or three persons following
him into the room. All these witnesses have testified to the fact that they
saw the victim being beaten by those persons who had followed him inside
the room. PW-2 has also further stated that when they finished beating him,
they opened the door and pushed the victim outside the house.
38. There cannot be a stronger thread than this, that the consistency
of the evidence of the three eye-witnesses has squarely put the
accused/appellants at the scene of the crime, that they saw them assaulting
the deceased victim, as a result of which he sustained severe injuries and
later succumbed to the same, proved by the post mortem report. This was
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further fortified by the fact that even in the dock, all the three accused/
appellants have been identified by the said eye-witnesses. Even if the result
of the T.I.P is not taken into account, this part of the identification process
cannot be ignored. It is said that identification in the dock, generally
speaking, is to be given primacy over identification in T.I.P as the latter is
considered to be corroborative evidence.
39. As has been pointed out none of the eye witnesses have seen who
has actually dealt the fatal blow to render the deceased victim incapacitated
to the extent that he later succumbed to his injuries. However, it is also
proven that all the three eye witnesses have seen the victim running towards
the house of Islam Haque and have also seen four persons pursuing him.
Three of these persons were later identified as those who have taken part in
the assault. There being no contradiction to this fact in the cross
examination of the witnesses, it is therefore established that the assault upon
the victim was a collective one. This act demonstrates common intention
and acts done by several persons in furtherance of common intention comes
under the purview of Section 34 IPC.
40. In a catena of judgments, the Supreme Court has time and again
expounded on the object and purpose and intent of Section 34 IPC and it
would be apt to cite one such judgments in this regard. In the case of
Ramesh Singh alias Photti v. State of A.P., (2004) 11 SCC 305, the
Supreme Court at para 12 of the same has observed as follows:
“12. To appreciate the arguments advanced on behalf of the
appellants it is necessary to understand the object of incorporating
Section 34 in the Indian Penal Code. As a general principle in a
case of criminal liability it is the primary responsibility of the
person who actually commits the offence and only that person who
has committed the crime can be held guilty. By introducing Section
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34 in the Penal Code the legislature laid down the principle of
joint liability in doing a criminal act. The essence of that liability
is to be found in the existence of a common intention connecting
the accused leading to the doing of a criminal act in furtherance
of such intention. Thus, if the act is the result of a common
intention then every person who did the criminal act with that
common intention would be responsible for the offence committed
irrespective of the share which he had in its perpetration. Section
34 IPC embodies the principle of joint liability in doing the
criminal act based on a common intention. Common intention
essentially being a state of mind it is very difficult to procure direct
evidence to prove such intention. Therefore, in most cases it has to
be inferred from the act like, the conduct of the accused or other
relevant circumstances of the case. The inference can be gathered
from the manner in which the accused arrived at the scene and
mounted the attack, the determination and concert with which the
attack was made, and from the nature of injury caused by one or
some of them. The contributory acts of the persons who are not
responsible for the injury can further be inferred from the
subsequent conduct after the attack. In this regard even an illegal
omission on the part of such accused can indicate the sharing of
common intention. In other words, the totality of circumstances
must be taken into consideration in arriving at the conclusion
whether the accused had the common intention to commit an
offence of which they could be convicted.” (See Noor Mohammad
Mohd. Yusuf Momin v. State of Maharashtra [AIR 1971 SC 885])
41. As to the importance of the weapon or implement said to have been
used to inflict injuries upon the deceased victim, PW-5 has appeared before
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the Court and testified that the police have recovered the rice grinding stick
near the door at the place of occurrence in the midst of pool of blood. This
recovery was made in his presence and as such, he has been cited as a
seizure witness. The I/O as PW-8 in his cross examination has corroborated
this statement by admitting that the stick was seized not from the possession
of the accused persons but from the place of occurrence. It is also admitted
that the said statement was not sent for FSL examination.
42. In answer to this contention that due to the absence of FSL report
the case of the prosecution becomes weaken, this Court is referred to the
case of Doman Murmu v. State of Jharkhand, 2024 SCC Online Jhar
1646, wherein at para 20, 20.1 and 20.2 was observed as follows:
“20. The learned counsel for the appellant also argued that the
dagger which was recovered was not sent to FSL for examination.
20.1. This defect in investigation is not found fatal to the
prosecution case because the prosecution case is based on direct
evidence. In case of a direct evidence, the production of the
weapon used in the commission of the crime and not sending the
same to FSL for examination will not be fatal to prosecution case
and no adverse inference can be drawn.
20.2. The Hon'ble Apex Court in the case of State of Punjab v.
Hakam Singh, (2005) 7 SCC 408 at paragraph 13 has held as
under:-
"13. It was also pointed out by learned counsel for the
respondent that no firearms were recovered and no seizure has
been made of empties. It would have been better if this was done
and it would have corroborated the prosecution story. Seizure of
the firearms and recovering the empties and sending them for
examination by the ballistic expert would have only corroborated
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the prosecution case but by not sending them to the ballistic expert
in the present case is not fatal in view of the categorical testimony
of PW 3 about the whole incident."
43. The appellants in their respective statements given before the
Court confirming to the provision of Section 313 CrPC, when the court has
put certain questions pointing to the incriminating evidence against them,
all of them have denied any involvement in the commission of the crime
and has instead raised the plea of alibi to say that they were not present at
the place of occurrence on the said date. To support this contention three
defense witnesses have been produced in Court to give their evidence.
However, from a reading of the evidence of the said witnesses, examined
as DW-1, DW-2 and DW-3, this Court has observed that though an attempt
has been made to place the respective appellants at specific location on the
said date, none of the witnesses have been able to locate the whereabouts
of the three appellants at about 8:00 am or so, when the incident is said to
have taken place. DW-1 has stated that Abdul Okil was with him at about
11:00 am, DW-2 has also stated that he was with Jahanur Islam at 4:00 am
when he hired his pickup and then they were together at around 10:00 to
10:30 am and DW-3 has stated that he was with Abdul Kholil at the market
place on Tuesday, but he never said anything about the time he was there.
Therefore, in view of such inconclusive evidence no reliance can be place
on such evidence.
44. On perusal of the impugned judgment and on appreciation of the
evidence and materials on record, this Court find no infirmity in the
impugned judgment and sentence. These two appeals being devoid of
merits, the same are hereby dismissed as such.
45. Send back the Trial Court’s records.
46. Let authenticated copy of this judgment be issued free of cost to
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the respective appellants.
47. Also let copy of this judgment be issued upon the Superintendent,
District Prisons and Correctional Home, West Garo Hills, Tura for
necessary action.
48. Appeals disposed of.
(B. Bhattacharjee) (W. Diengdoh)
Judge Judge

Meghalaya
16.10.2026
“ Tiprilynti– PS ”

TIPRILYNTI KHARKONGOR
Digitally signed by:
Page 20 of 20

Signed On: 16-10-2026 20:30:56 IST
Verified