& Ors Vs. the State of Assam  Insc
1225 (6 December 2007)
Arijit Pasayat & D.K. Jain
APPEAL NO. 1675 OF 2007 (Arising out of SLP (Crl.) No.6635 of 2006) Dr. ARIJIT
Challenge in this appeal is to the order passed by a learned Single Judge of
the Gauhati High Court dismissing the appeal filed by the appellant.
Background facts according to the prosecution in a nutshell are as follows:
night of 11.4.88 at about 6.30 P.M. the accused Abdul Gafur, Hokoi Mian, Najir
All, Sayed Ali, Latif Ali, Aklas Mian, Ashu Mian and Tabai Mian being armed
with deadly weapons namely, dao, lathis, dagger etc. surrounded the house of Satyendra
Nath Gupta at village Brahrnanshashan, assaulted him, his wife Smti Hemamalini
Gupta, his son Subhendu Gupta, his eldest daughter Anjali Gupta and his
relatives Sushil Chanda causing grievous injuries to them, tied them up and
then looted gold ornaments, namely, chains, bangles, ear rings etc. valued at
Rs.42,950.00 from the possession of the female inmates of the house, namely, Hemamalini
Gupta, Anjali Gupta, Mitra Gupta, Rubi Gupta and Nell Gupta. That apart two of
the accused persons, namely, Hokol Mian and Aklas Uddin committed rape
respectively on Mitra Gupta and Rubi Gupta and decamped with the looted
booties. During the course of occurrence Sushil Chandra Gupta the son of Satyendra
Nath Gupta informed police over telephone that decoity was being committed in
the house of Satyendra Nath Gupta and that Satyendra Nath Gupta and his wife
were assaulted by the decoits causing grievous injuries to them. At the Nilambazar
out post a general diary vide entry no.212 at 8.15 p.m. on the night of 11.4.1988 was recorded and on the basis of
such information enquiry was launched. Thereafter Satyendra Nath Gupta also
lodged a written Ejahar with police of Nilambazar out post. The Officer Incharge
of Nilambazar out post sent the written ejahar to the Officer Incharge of Karimganj
the Officer Incharge of Karimganj P.S. registered a case under Section
395/397/376 of the Indian Penal Code, 1860 (in short the 'IPC'). S.I. of police
T.C. Bailong after completion of enquiry/investigation submitted charge sheet
against the accused Abdul Gafur, Hokoi Mian, Boloi Mian, Sayed Ali, Aklas Uddin,
Najir Ali, Latif Ali, Ashu Mian and Tabai Mian for alleged commission of
offences punishable under Section 395 and 397 IPC.
charges against the accused Najir Ali, Ashu Mian and Tabai Mian were proven and
they were declared to be proclaimed absconders. The case against other six
accused persons, namely Abdul Gafur, Hokoi Mian, Boloi Mian, Sayed All, Alas Uddin
and Latif Ali was committed to the Court of Sessions by learned Judicial
Magistrate, 1st Class, Karimganj.
trial nine witnesses were examined to further the prosecution version.
Placing reliance on the evidence of witnesses-PWs. 1, 2, 3, 5 and 8, the trial
court found that accused appellant 1,2,3,5&6 guilty of offence punishable
under Section 395 read with Section 397 IPC and accused appellant Nos. 3 &
5 were guilty of offence punishable under Section 354 IPC. For the offence
relatable to Section 395 read with Section 397, each was sentenced to undergo
rigorous imprisonment for seven years and to pay a fine of Rs.2,000/- with
the offence relatable to Section 354 IPC they were sentenced to rigorous
imprisonment of one year each.
convicted accused persons preferred an appeal before the High Court. As
afore-stated the High Court dismissed the appeal and affirmed the conviction
support of the appeal learned counsel for the appellant submitted that the High
Court has disposed of the appeal cryptically without even discussing the
various submissions made. There are also several infirmities in the conclusions
Learned counsel for the respondent-State on the other hand supported the
judgment of the trial court and the High Court.
High Court has noted as if a telephonic message was given by a stranger
regarding decoity. However, in evidence it has given that the information was
given not by a stranger but by Sushil Chandra Gupta, PW 1. In the information
given it was stated that some stranger had committed decoity.
The accused persons are not strangers and were practically neighbours of the
informant and his family. The High Court noted that there was no intention to
falsely implicate accused persons because of enmity and there was no reason as
to why dignity of two young girls would be put at stake by alleging rape. It is
to be noted that in fact rape was alleged but the Trial Court found that there
was no material to substantiate the plea of rape. The evidence is totally
inconsistent and lacks credence. The High Court's observations were clearly
based on surmises and contrary to the factual scenario. The High Court has
noted that the evidence of PWs. 1,2,3,5 & 8 stand fully corroborated by the
medical evidence. Significantly, on consideration of the evidence of PW 4, it
is clear that the evidence of this witness is clearly contrary to the medical
evidence. To add to the confusion, it is noted that the High Court recorded as
finding that appellant Abdul Gafur was absconding. As a matter of fact the
evidence of Investigating Officer (in short the 'I.O') shows that he had
arrested Abdul Gafur on the date the First Information Report (in short the
'FIR') was lodged.
the High Court has merely referred to certain conclusions of the Trial court
without analyzing the evidence and various submissions made by the appellants.
To add to the vulnerability of the prosecution version, the FIR was lodged long
after the incident and in fact law was already set on motion after the
telephonic message had been received.
The aforesaid infirmities in the background of admitted animosity between the
parties renders the prosecution version unacceptable. The Trial Court and the
High Court did not analyse the evidence correctly and acted on mere surmises
and conjectures. That being so, the appellants deserve to be acquitted, which
Appeal is allowed. The appellants are acquitted of the charges. They be set
forth at liberty if not required in any other case.