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PART-II

   IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1302 OF 2009

MOHD. RUSTAM ALI ..... APPELLANT

VERSUS

STATE OF ASSAM ..... RESPONDENT

O R D E R

In the light of what we intend holding in this  

matter  the  detailed  circumstances  leading  to  the  

incident need not be given.  Suffice it to say, that 17  

persons  in  all  were  sent  for  trial  for  offences  

punishable under Section 302,323, 324 and 34 Indian  

Penal Code.  During the course of the trial two of the  

accused  Siraj  Ali  and  Mohammed  Hanif  died  whereas  

Moniruddin  defaulted   and  was  declared  to  be  an  

absconder.   The  trial  court  on  the  basis  of  the  

evidence  before  it  convicted  the  remaining  fourteen

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accused  and  sentenced  them  to  various  terms  of  

imprisonment.  The matter was thereafter brought to  

this Court by way of a special leave petition by six of  

the accused.  The Special Leave Petition of five of  

them was dismissed outright and leave was granted with  

respect to only one, the present appellant.  

We  have  heard  the  learned  counsel  for  the  

parties with respect to his role and involvement in the  

incident.   

Mr. Parthiv Goswami, the learned counsel for the  

appellant has argued that no role whatsoever has been  

attributed to the appellant and that his case was at  

par with the four accused who have been acquitted by  

the High Court and he was, accordingly, entitled to the  

same benefit.  He has taken us through the evidence of  

the five primary witnesses P.Ws. 1,3,5,8 and 10 and  

also  the  medical  evidence   and  submitted  that  the  

appellant,  in  fact,  had  caused  no  injury  to  the  

deceased and that the allegation of P.W. 5 that some  

injury had been caused to one of the witnesses was also  

unsubstantiated on record.

Mr.  Avijit  Roy,  the  learned  counsel  for  the

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State  of  Assam  has,  however,  pointed  out  that  the  

appellant had been roped in with the aid of Section 149  

IPC  as he had been present when the incident happened  

and  as  he  had  along  with  others  had  way  laid  the  

deceased  and  the  injured  witnesses  when  they  were  

returning  home,  the  common  object  of  the  assembly  

appeared to have been made out.  He has also submitted  

that P.W.1 had a given specific role to the appellant  

inasmuch that he had caused an injury to the deceased  

on his neck with a dao.

We  have  heard  the  learned  counsel  for  the  

parties.  P.W. 1 Miya Box undoubtedly did say that the  

appellant had caused an injury with a dao on the neck  

of  the  deceased,  Jha  Box.   The  medical  evidence,  

however,  does  not  support  this  plea  as  only  two  

injuries, none of them on the neck, were found on the  

dead body.  The other three witnesses P.Ws. 3, 8 and 10  

had either attributed a general role to the appellant  

along with others who have been acquitted  or no role  

at all to the appellant in the incident.

Mr. Roy's argument with respect to the evidence  

of P.W. 5 is also not worthy of belief for the reason  

that he alone out of the five witnesses who have been

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referred  to  above  deposed  that  an  injury  had  been  

caused to one of the witnesses  and he did not state  

that any injury had been caused to the deceased.  In  

view of the ambivalent nature of the evidence and the  

fact that a very large number of accused were involved  

and  the  parties  having  serious  animosity  with  each  

other,  we  are  of  the  opinion  that  Rustam  Ali,  the  

appellant, herein ought to have been acquitted by the  

High Court with the benefit of doubt.  We, accordingly,  

allow  this  appeal,  set  aside  the  conviction  of  the  

appellant and order his acquittal.

    ..................J      [HARJIT SINGH BEDI]

    ..................J      [R.M. LODHA]

NEW DELHI OCTOBER 07, 2009.

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   PART-I

       IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1302 OF 2009

MOHD. RUSTAM ALI ..... APPELLANT

VERSUS

STATE OF ASSAM ..... RESPONDENT

O R D E R

We  have  heard  the  learned  counsel  for  the  

parties.

Vide  our  separate  reasoned  order,  we  have  

allowed the appeal and set aside the conviction of the  

appellant and ordered acquittal.   

It is stated by Mr. Parthiv Goswami, the learned  

counsel  for  the  appellant  that  the  appellant  is  in  

jail. We direct that the appellant shall be set at  

liberty forthwith if not required in connection with  

any  other  case.    

The reasoned order to follow.   

    ..................J      [HARJIT SINGH BEDI]

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    ..................J      [R.M. LODHA]

NEW DELHI OCTOBER 07, 2009.