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GAUHATI HIGH COURT (DB)
C.R. Sarma and Prasanta Kumar Saikia, JJ.
Aminur Islam (MD.) and others - Petitioners
Versus
State of Assam - Respondent
Crl. A. No. 179 of 2012
Decided On : 14-11-2014
Indian Penal Code,1860 - Sections 147/148/302/149 – Criminal Procedure Code,1973 - Sections 313, 162(2) and 173 - Evidence Act - Section 157 - Declined to adduce any evidence - Dead body - FIR - Appeal against convicted – Examination of accused - Appeal is directed against judgment rendered by Addl. Sessions Judge in Sessions Case No. convicting of offences under section 147/148/302/149 and sentencing them to suffer R.I. for one year and fine of each for offence under section 147 IPC, R.I., for 2 years and fine for offence section 148 IPC and for life and to pay a fine of each for offences under section 302/149 IPC - Appellants and learned Addl. Public Prosecutor, appearing for State - It may be stated that while so convicting appellants - Court was pleased to acquit other co-accused of offences aforesaid on holding that prosecution could not make out charges against them beyond all reasonable doubt - Being aggrieved by aforesaid judgment, appellants had preferred this appeal citing several infirmities of extremely serious in nature in judgment under challenge - Projected case of prosecution, in short, is that, one lodged an FIR with Officer-In Charge, Gauripur Police Station alleging that on night intervening, accused came to house of his nephew and called him to their house stating that they required to discuss some urgent matters with him – Held, One may note here that evidence of PW 2 and PW 4 reveals that accused and had gone to house of Peer - On night aforesaid, took him with them to house of where he was killed sometime later - Such evidence raised a serious doubt about involvement of aforesaid two persons in killing of Peer in premises of Hazarat - It is a settled law that suspicion take place of proof - There is a gulf of difference between proof and suspicion - Suspicion never crossed gulf to partake form and shape of proof - Being so, merely on suspicion, in our considered opinion, none of appellants including appellant could be convicted of offence they were charged with – Court have discussed hereinbefore and what have emerged – Court are of clear opinion that prosecution could not make out charges, leveled against appellants beyond all reasonable doubt and as such, present appellants, like other acquitted accused persons, ought to have been acquitted on giving them benefit of doubt - Appellants were not given benefit of doubt, judgment under challenge becomes unsustainable in law - Consequently judgment in question is quashed and set aside on acquitting appellants of offences under section 147/148/302 IPC and we set them at liberty forthwith, if their detention is not required in connection with any other case - Appeal is allowed
Prasanta Kumar Saikia, J.
This appeal is directed against the judgment dated 17.7.2012 rendered by Addl. Sessions Judge, Dhubri, Assam in Sessions Case No. 2 of 2002 convicting (1) Sahajan Ali, (2) Md. Nur Islam, (3) Samsul Hoque, (4) Md. Aminur Islam & (5) Md. Mozammel Hoque of offences under section 147/148/302/149 and sentencing them to suffer R.I. for one year and fine of Rs. 5,000/- each for offence under section 147 IPC, R.I., for 2 (two) years and fine of Rs. 5,000/- each for offence under section 148 IPC and for life and to pay a fine of Rs. 10,000/- each for offences under section 302/149 IPC.
2. Heard Mr. S.S.S. Rahman, learned counsel for the appellants and Ms. S. Jahan, learned Addl. Public Prosecutor, appearing for the State.
3. It may be stated that while so convicting the appellants (hereinafter referred to as accused persons), the trial court was pleased to acquit other co-accused, namely, (1) Maleka Bewa (2) Atihur Rahman, (3) Marjina Bewa, (4) Majibur Rahman, (5) Majibur Ali and (6) Habibur Rahman of offences aforesaid on holding that the prosecution could not make out the charges against them beyond all reasonable doubt.
4. Being aggrieved by the aforesaid judgment, the appellants herein had preferred this appeal citing several infirmities of extremely serious in nature in the judgment under challenge.
5. The projected case of the prosecution, in short, is that on 31.08.2000, one Md. Anowar Ali Sheikh (PW 1) lodged an FIR with the Officer-In Charge, Gauripur Police Station alleging that on the night intervening 29th and 31st August, 2000, accused Hazarat Ali and Sahajan Ali came to the house of his nephew Peer Baksh (since deceased) and called him to their house stating that they required to discuss some urgent matters with him.
6. Since Peer Baksh did not return home for a considerably long period, his wife Razia Bibi (PW 2) and her daughter Peer Banu Bibi (P W 4) came out of their house in search of their husband/father. When they reached the house of accused Hazarat Ali, they saw the accused persons, namely (1) Hazarat Ali, (2) Sahajan Ali, (3) Mozammel Hoque, (4) Habibur Rahman, (5) Samsul Hoque, (6) Nur Islam, (7) Md. Aminur Islam, (8) Fazrat Ali and (9) Mansur Ali assaulting Peer Baksh by various weapons like dagger, club, rod garasi etc.
7. Seeing said Peer Baksh, being assaulted by accused persons, they raised hue and cry for which accused persons left such place. The deceased died at the place of occurrence itself moments after the alleged incident On receipt of the FIR with such allegations, O/C Gauripur P.S. registered a case vide Gauripur P.S. No. 118 of 2000 under section 147/148/149/302 IPC and ordered one Kamal Ch. Rajbongshi to investigate the case.
8. Being so entrusted with the investigation, Sri Rajbongshi visited the place of occurrence, held inquest on the dead body, sent it to the hospital for postmortem examination, examined the witnesses, well acquainted with the fact and circumstances of the case, arrested some of the accused persons and on the conclusion of trial, submitted charge-sheet under section 147/148/149/302 IPC against as many as sixteen accused persons and forwarded them to the court to stand trial.
9. On receipt of the case on commitment and on hearing the learned counsel for the parties, the court below framed charges under section 147/148/302/149 of IPC against as many as 16 accused persons. Charges, so framed, on being read over and explained to them, they pleaded not guilty and claimed to be tried. Accused Hazarat Ali, Saukat Ali @ Naktu, Monowar Ali and Fazrat Ali @ Abdul Rahman died during pendency of the trial and as such, the case stood abated against them and it proceeded against the remaining surviving accused persons.
10. During the course of trial, the prosecution had examined 7 witnesses including the Medical Officer who conducted autopsy on the dead body of the deceased as well as the Investigating Officer. The statements of the accused persons were
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