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IN THE HIGH COURT OF GAUHATI
C.R. Sarma and Paran Kumar Phukan, JJ.
Jayeda Khatun - Petitioner
Versus
Majibur Rahman & Ors. - Respondents
Crl. A.No. 135 of 2012
Decided On : 20-01-2016
For the Petitioner: N. Uddin.
For the Respondents: S. Jahan, B.N. Choudhury.
Headnote:
Indian Penal Code,1860 - Sections 147/148/149/341/325/323/307, 34 and 302 – Criminal Procedure Code,1973 - Sections 313 and 161 – Offence of murder - Appeal against acquittal – Examination of accused - Evidence on record - Judgment and order, passed by learned Addl Sessions Judge, in Sessions Case No - Whereby and where under learned Sessions Judge acquitted accused persons in said sessions case - Aggrieved by said acquittal, informant, who is daughter of victim, has come up with this appeal, on ground that order of acquittal has been made without properly appreciating evidence on record and that said acquittal is not maintainable - Prosecution case in brief he went for marketing and as soon as he had reached front of house of accused, accused persons by forming an unlawful assembly group assaulted deceased etc - Hearing hue and cry informant and other witnesses i.e. PW-1 to PW-5 rushed to place of occurrence and they were also assaulted by accused persons causing injuries to their persons - Subsequently deceased was taken to hospital and he succumbed to injuries - On next date daughter of deceased lodged an FIR with police - On receipt of FIR police registered a case and launched investigation into matter – Held, Court said contradiction regarding seizure of weapon of assault it is doubtful as to whether deceased died due to any assault made by accused persons with a bamboo lathi or bamboo post - Opinion given by Medical Officer and evidence given by PW-5 supports plea taken by defence - Hence it is doubtful as to whether deceased died due to assault made by accused or due to fall on any hard substance - Law is well settled that in event of existence of two views i.e. one going in favour of accused person and other in favour of prosecution, it is always safe to accept view in favour of accused persons - Cardinal principle of criminal jurisdiction is that in a criminal prosecution burden lies on prosecution to prove allegation, brought against accused person, beyond all reasonable doubt and benefit of doubt should always be given to accused person - In view of above discussions, we find that evidence given by prosecution witnesses, more particularly, PW-1 to PW-5 is not free from doubt and inconsistency - Hence it is not safe to rely on their evidence to hold accused persons guilty - Therefore, we have no hesitation in holding that learned trial Judge committed no error, illegality or perversity in arriving at conclusion that prosecution failed to prove case beyond all reasonable doubt - Hence we find no merit in this appeal, requiring interference with impugned judgment and order - Appeal is dismissed
C.R. Sarma, J.
Heard Mr. N. Uddin, Learned counsel appearing for the appellant. Also heard Ms. S. Jahan, learned Addl. Public Prosecutor and Mr. BM Choudhury, learned counsel appearing for the private respondents.
2. This appeal, against acquittal, is directed against the judgment and order, dated 23.4.2012 passed by the learned Addl Sessions Judge, (FTC), North Lakhimpur in Sessions Case No. 99(NL)/2011, whereby and where under the learned Sessions Judge acquitted the accused persons (hereinafter called the private respondents) in the said sessions case.
3. Aggrieved by the said acquittal, the informant, who is the daughter of the victim, has come up with this appeal, on the ground that the order of acquittal has been made without properly appreciating the evidence on record and that the said acquittal is not maintainable.
4. The prosecution case, in brief, is that, on 28.7.2010 at about 5 P.M., Shri Abbas Ali (herein called the deceased), went to Sonapur Chariali Chowk for marketing and as soon as he had reached the front of the house of accused Mr. Mujibur Rahman, the accused persons by forming an unlawful assembly group assaulted the deceased with the lathi etc. Hearing the hue and cry the informant and other witnesses i.e. PW-1 to PW-5 rushed to the place of occurrence and they were also assaulted by the accused persons causing injuries to their persons.
Subsequently the deceased was taken to hospital and he succumbed to the injuries. On the next date i.e. on 29.7.2010, the daughter of the deceased lodged an FIR with the police. On receipt of the FIR police registered a case and launched investigation into the matter. At the close of the investigation, police submitted charge sheet under Sections 147/148/149/341/325/323/307 and 302 IPC against the accused persons. The offence being exclusively triable by the Court of sessions, the learned Magistrate committed the case to the Court of Sessions and the learned Sessions Judge framed charges under Sections 341/323/302/34 IPC against the accused persons. The charges were read over and explained to the accused persons, to which they pleaded not guilty and claimed to be tried.
5. In order to prove its case, the prosecution examined as many as 10 witnesses including the Medical Officer (PW-9), who performed the autopsy on the dead body and the Investigating Officer (PW-10). At the close of the examination of the prosecution witnesses, the accused persons were examined under Section 313 Cr.P.C. They denied the allegations and declined to adduce defence evidence. Their plea was a denial one. Considering the evidence, on record, the learned trial Judge came to the findings that the prosecution failed to prove the allegations, brought against the accused persons, beyond all reasonable doubt. Accordingly the learned Sessions Judge acquitted the accused.
6. Mr. N. Uddin, learned counsel appearing for the appellant i.e the informant, has submitted that PW-1 to PW-5, who were eyewitnesses of the occurrence, specifically stated that they had seen the accused persons assaulting the deceased and causing fatal injury and that the learned Sessions Judge failed to properly appreciate the evidence given by the said witnesses. It is also submitted that the learned Sessions Judge committed error by recording acquittal on the basis of certain minor contradictions and omissions on the part of the witnesses. Therefore, it is submitted that the impugned judgment and order is liable to be reversed and that the accused persons are to be punished for the crime committed by them.
7. Ms. S. Jahan, learned Addl. PP, supporting the impugned judgment and order has submitted that the learned Sessions Judge has properly appreciated the evidence, on record and passed the order of acquittal on the basis of the evidence adduced by the prosecution witnesses. The Addl. PP has also submitted that there is no perversity in the findings, given by the learned trial Judge and as such the impugned judgment an
