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2015 Supreme(Gau) 211
IN THE HIGH COURT OF GAUHATI
Prasanta Kumar Saikia and Lanusungkum Jamir, JJ.
State of Assam and Ors. - Appellants
Vs.
Umesh Chandra Das and Ors. - Respondent
Crl.A. No. 129 of 2010 and Crl. Rev. Pet. 486 of 2010
Decided On : 10-04-2015
Advocate Appeared:
For Appellant/Petitioner/Plaintiff: S. Jahan, Addl. P.P., G. Lal, I. Thakuria, J. Begum and U. Sarma.
For Respondents/Defendant: N. Dutta, K. Saikia, P. Choudhury, K.K. Bhattacharjee, B.D. Goswami, S. Bharali, S. Dutta, S. Jahan, Addl. PP, D. Talukdar and R. Islam.
Headnote:
Indian Penal Code, 1860 - Sections 385/302 r/w 149 – Criminal Produce Code, 1973 – Section 313 - Putting person in fear of injury in order to commit extortion – Assault and Unlawful assembly – Illegal liquor business - Appeal against acquittal - Prosecution in its FIR and in subsequent trial, in short, are that a team of officers drawn from Excise Department and Police Department, their number being 20 (twenty), under the leadership of Chiranjib Das, Excise Superintendent conducted (A2) conducted raids at various places, such as, Sipajhar, Bijulibari, Dipila, Kharupeta etc - Doing liquor business illegally and in that process, caught several persons doing such business illegally from places aforesaid - One Bodo man too, Chanaram Boro (since deceased) by name, was one of such persons who was also caught and arrested by the said party from his house - It has been alleged that after his arrest, Excise party led by Chiranjeeb Das. subjected Chanaram Boro to a barrage of assaults due to which he sustained multiple injuries - Held, It may be noted here that there are materials on record which prima facie show that general heath of victim was very sound at time of his death - Such disclosure coupled with evidence of the Doctor again demonstrates that none of members of aforesaid party, even if it is presumed for the sake of argument that some of accused persons had actually participated in crime in question, had any object to cause death of deceased - It cannot be concluded that accused persons formed an unlawful assembly at place of occurrence on night of 11.09.1996 with common object of liquidating victim and in prosecution of such a common, all or some of them, being members of said unlawful assembly, had actually assaulted deceased which occasioned his death next day in morning – Court found that the judgment under challenge cannot be said to be perverse or illegal or rendered on misconception of law and facts - Appeal dismissed.
Prasanta Kumar Saikia, J.
1. This appeal is directed against the judgment dated 14.03.2008 passed by learned Sessions Judge, Darrang, Magoldoi in Sessions Case No. 1 (DM) of 1999 acquitting the respondents herein of offence under Sections 385/302 read with Section 149IPC. Being aggrieved, the State of Assam preferred this appeal citing several infirmities in the judgment under challenge.
2. Heard Ms. S. Jahan, learned Addl. Public Prosecutor appearing for the State. Also heard Mr. A.K. Bhattacharyya, learned Senior Counsel assisted by Mr. D. Talukdar for the respondents/accused No. 1 and 4 to 13 and Shri N. Dutta, learned Senior Advocate assisted by Mr. D. Talukdar, learned counsel for the respondents/accused No. 2 &3.
3. The facts, projected by the prosecution in its FIR and in the subsequent trial, in short, are that on 11.09.1996, a team of officers drawn from the Excise Department and Police Department, their number being 20 (twenty), under the leadership of Chiranjib Das, Excise Superintendent conducted (A2) conducted raids at various places, such as, Sipajhar, Bijulibari, Dipila, Kharupeta etc. doing liquor business illegally and in that process, caught several persons doing such business illegally from the places aforesaid. One Bodo man too, Chanaram Boro (since deceased) by name, was one of such persons who was also caught and arrested by the said party from his house.
4. It has been alleged that after his arrest, the Excise party led by Chiranjeeb Das. subjected Chanaram Boro to a barrage of assaults due to which he sustained multiple injuries. The victim was thereafter taken to the Excise office at Mangaldoi where he succumbed to the injuries next day in the morning. An FIR to that effect on being lodged by the informant Sri Khagendra Nath Boro (PW 2), police registered a case and ordered Md. Ali Ahmed, S.I. of police to investigate the case.
5. On being so ordered, Md. Ali Ahmed, the Investigating Officer, started the investigation, and in course of the investigation, he conducted an inquest on the dead body, sent it to hospital for post mortem examination, arrested the accused persons, examined the witnesses, did the other needful and on conclusion of investigation, the Investigating Officer submitted charge-sheet u/s.147/302 IPC against as many as 13 (thirteen) accused persons and forwarded them to the Court to stand trial.
6. The persons against whom the charge sheet was so laid in the Court are respondents herein, namely, (1) Umesh Ch. Das, (2) Sri Chiranjib Das, (3) Md. Abul Hussain, (4) Sri Paresh Deep Kakati, (5) Sri Khirod Saharia, (6) Md. Katibuddin Ahmed, (7) Md. Eskender Mirza, (8) Sri Hari Ch. Rajbongshi, (9)Md. Tabibullah, (10) Md. Abu Esa Hoque, (11) Md. Jaliluddin (12) Sri Kalyan Mech & (13) Sri Dines war Deka. The respondents/accused No.1 to 13 would be referred to hereinafter as A1 to A13 respectively.
7. On receipt of the charge sheet by the learned Magistrate, the case was committed to the Court of Session since the offence u/s. 302 IPC is exclusively triable by the Court of Session. On the receipt of the case on commitment, the learned Sessions Judge, framed charge u/s. 302 IPC read with Section 34 IPC. However charge, so framed was subsequently altered to charges u/s.385/302/149 IPC. Charges, so framed, on being read over and explained to the accused persons, they pleaded not guilty and claimed to be tried.
8. During the course of investigation, the prosecution side has examined as many as 16 (sixteen) witnesses including the M/O and I/O. They were cross-examined at length. The statements of the accused persons u/s. 313 Cr.P.C. were recorded. The accused persons pleaded that they were no way connected with crime in question. However, they declined to adduce any evidence in their defence.
9. On conclusion of trial and on hearing the arguments, advanced by the learned counsel for the parties, the learned Court below was pleased to acquit the accused persons of offences u/s. 385/302/149 IPC and set
