Important Point
Where in an offence of dacoity Trial Court and High Court failed to analyse evidence correctly and Trial Court and High Court acted on mere surmises and conjectures then accused persons were held entitled to acquittal.

Headnote:Indian penal Code, 1860 – Sections 395 r\w 397, 354 – Prosecution of accused persons for surrounding house of one “S” armed with deadly weapons like dao, lathis, dagger, assaulting “S”, his son, his eldest daughter and his relatives, and for causing grievous injuries to them, tying them up and looting gold ornaments from female inmates of house – Allegation that two of accused persons committed rape on two female inmates of house – Conviction by Trial Court – Appeal against conviction – Dismissed by High Court – Appeal - High Court noted as if telephonic message was given by a stranger regarding dacoity - However, in evidence it had given that information was given not by a stranger but by “S”, PW 1 - No material to substantiate plea of rape - Evidence was totally inconsistent and lacked credence - High Court’s observations were clearly based on surmises and contrary to factual scenario - High Court noted that evidence of PWs. 1,2,3,5 & 8 stood fully corroborated by medical evidence - On consideration of evidence of PW4, it was clear that evidence of said witness was clearly contrary to medical evidence - High Court recorded finding that appellant was absconding - Evidence of Investigating Officer showed that he had arrested Appellant on date First Information Report was lodged - Unfortunately High Court merely referred to certain conclusions of Trial court without analyzing evidence and various submissions made by appellants - To add to vulnerability of prosecution version, FIR was lodged long after incident and in fact law was already set on motion after telephonic message had been received - Aforesaid infirmities in background of admitted animosity between parties rendered prosecution version unacceptable – Failure on part of Trial Court and High Court to analyse evidence correctly – Trial Court and High Court acted on mere surmises and conjectures - Appellants held entitled to acquittal - Appeal allowed. (Paras 9 to 12)
       Facts of the case :
       Accused persons were prosecuted herein in the instant case for surrounding house of one “S” armed with deadly weapons like dao, lathis, dagger, for assaulting “S”, his son, his eldest daughter and his relatives, and for causing grievous injuries to them, tying them up and looting gold ornaments from female inmates of house. Allegation that two of accused persons committed rape on two female inmates of house. Trial Court convicted accused person. Appeal against conviction was dismissed by High Court.
       Present Appeal has been filed against said order of High Court.
       Findings of the Court :
       The High Court noted as if telephonic message was given by a stranger regarding dacoity. However, in evidence it had given that information was given not by a stranger but by “S”, PW 1. There was no material to substantiate plea of rape. Evidence was totally inconsistent and lacked credence. High Court’s observations were clearly based on surmises and contrary to factual scenario. High Court noted that evidence of PWs. 1,2,3,5 & 8 stood fully corroborated by medical evidence. On consideration of evidence of PW4, it was clear that evidence of said witness was clearly contrary to medical evidence. High Court recorded finding that appellant was absconding. Evidence of Investigating Officer how ever showed that he had arrested Appellant on date First Information Report was lodged. Unfortunately High Court merely referred to certain conclusions of Trial court without analyzing evidence and various submissions made by appellants. To add to vulnerability of prosecution version, FIR was lodged long after incident and in fact law was already set on motion after telephonic message had been received - Aforesaid infirmities in background of admitted animosity between parties rendered prosecution version unacceptable. Trial Court and High Court failed to analyse evidence correctly. Trial Court and High Court acted on mere surmises and conjectures. Appellants held entitled to acquittal. Appeal allowed.
       Result : Appeal allowed.

JUDGMENT

Dr. ARIJIT PASAYAT, J.—

1.Leave granted.

2.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.

3.Background facts according to the prosecution in a nutshell are as follows :

“On the 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 P.S. whereupon 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.

The 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.

4.During trial nine witnesses were examined to further the prosecution version.

5.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 default stipulation. For the offence relatable to Section 354 IPC they were sentenced to rigorous imprisonment of one year each.

6.The convicted accused persons preferred an appeal before the High Court. As afore-stated the High Court dismissed the appeal and affirmed the conviction and sentence.

7.In 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 arrived at.

8.Learned counsel for the respondent-State on the other hand supported the judgment of the trial court and the High Court.

9.The 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

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2007 Supreme(SC) 1650

2007(8) Supreme 189Supreme Court of india(From Gauhati High Court)Dr. Arijit Pasayat & D.K. Jain, JJ.Abdul Gafur & Ors. — AppellantversusThe State of Assam — RespondentAppeal (crl.) 1675 of 2007(Arising out of SLP (Crl.) No.6635 of 2006)Decided on : 06-12-2007

Important PointWhere in an offence of dacoity Trial Court and High Court failed to analyse evidence correctly and Trial Court and High Court acted on mere surmises and conjectures then accused persons were held entitled to acquittal.

2007(8) Supreme 189
Supreme Court of india
(From Gauhati High Court)
Dr. Arijit Pasayat & D.K. Jain, JJ.
Abdul Gafur & Ors. — Appellant
versus
The State of Assam — Respondent
Appeal (crl.) 1675 of 2007
(Arising out of SLP (Crl.) No.6635 of 2006)
Decided on : 06-12-2007

Important Point
Where in an offence of dacoity Trial Court and High Court failed to analyse evidence correctly and Trial Court and High Court acted on mere surmises and conjectures then accused persons were held entitled to acquittal.