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CASE NO.: Appeal (crl.)  1675 of 2007

PETITIONER: Abdul Gafur & Ors

RESPONDENT: The State of Assam

DATE OF JUDGMENT: 06/12/2007

BENCH: Dr. ARIJIT PASAYAT & D.K. JAIN

JUDGMENT: J U D G M E N T

CRIMINAL APPEAL NO.     1675    OF 2007 (Arising out of SLP (Crl.) No.6635 of 2006)

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,

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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 a stranger but  by Sushil Chandra Gupta, PW 1.  In the information given it  was stated that some stranger had committed decoity.

10.     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.  

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Unfortunately 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.   

11.     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 we direct.

12.     Appeal is allowed. The appellants are acquitted of the  charges.  They be set forth at liberty if not required in any  other case.