IN THE GAUHATI HIGH COURT

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1 IN THE GAUHATI HIGH COURT (THE HIGH COURT: ASSAM: NAGALAND: MIZORAM AND ARUNACHAL PRADESH) Criminal Appeal No. 43 of 2013 Abdul Baten Appellant -Versus- State of Assam & 15 Others Respondents -BEFORE- HON BLE THE CHIEF JUSTICE MR. AJIT SINGH HON BLE MR. JUSTICE N. CHAUDHURY Advocate for the appellant : Mr. A Choudhury, Advocate Advocate for the Respondent: Ms. S Jahan, Additional Public Prosecutor, Assam Date of hearing : Date of Judgment : JUDGMENT & ORDER (CAV) (N. Chaudhury, J) In this appeal, acquittal of the accused persons from charges under sections 457/354/323 read with section 149 of the IPC vide judgment and order dated by learned Sessions Judge, Dhubri has been questioned. The aforesaid case was tried analogously with Sessions Case No. 120/2006 under sections 149/342/323/302 of the IPC. 2. The prosecution story is that one Abdul Momin Khandakar, as informant, lodged an ejahar with Officer In-charge of Mankachar Police Station on Page 1 of 6

2 alleging that at around 1.00 A.M. on , the accused persons named therein forcibly entered into the room of Gulzar Ali s younger sister Ms. Mahiran Begum (Parveen) by breaking upon the door and tried to kidnap her. The family members resisted the accused persons whereupon the accused persons inflicted grievous injuries on the persons of Abdur Rahim, Abdul Baten (appellant herein), Hanufa Khatoon and Motaleb by stabbing them with daggers. They were taken to Gajarikandi Health Centre and they were treated there. Failing in their bid to kidnap Mahiran Begum (Parveen), the accused persons looted various household articles, ornaments and money. As many as 15 names are mentioned in the ejahar. Upon receipt of the ejahar, Mankachar P.S. Case No. 153/2005 under sections 147/ 148/ 149/ 457/ 354/ 325/ 326 of the IPC was registered and investigation started. After completion of the investigation, the police submitted charge sheet against the 15 accused persons. One of them, namely, Samsul Bari had died immediately after filing of the FIR as he was also injured. 3. Since this case was analogous to Sessions Case, it was also sent to learned Sessions Judge and thereupon Sessions Case No. 29/2007 was registered. The learned Sessions Judge framed charges under sections 149/ 457/ 354/ 323 of the IPC against all the accused persons. The charges were read over to the accused whereupon they pleaded not guilty and claimed to be tried. 4. In course of trial, prosecution examined 8 witnesses including a doctor. 5. PW 1 is the informant. He stated that he came to know about some disturbance in the house of Azizur Master in the morning. He found Baten and Page 2 of 6

3 Rahim in injured condition who had taken to Gajarikandi Hospital by hand cart. He was not an eye witness. He filed the ejahar. 6. PW 2, Monowara Begum, is the wife of Azizur Rahman. According to her, Noor Islam, Anowar, Zamer Ali, Ziarul, Zilkat, Manowar, Amirul, Taher, Gaffar, Gani, Mazraf, Motaleb, Khaleque, Tazibar and Shah Alam entered their house by breaking open the door and failing to locate Mehrul destroyed the household articles. They also assaulted Abdul Sahed, Abdul Baten, Abdul Rahim and others. They stabbed Abdul Sahed with sulpi. 7. PW 3, Dr. Anowarul Islam examined the injuries of Abdul Baten and found that there was a lacerated wound 3 cm long in the right parietal region caused by blunt object. All the injuries were ante mortem and were caused by blunt and hard object. Abdus Sayed was another injured who had suffered lacerated wound 1.5 cm x ½ cm right side abdomen iliac region which is simple in nature and caused by blunt hard object. He had lacerated wound at his right side abdomen and all were caused by blunt hard object. Exhibit 2 is the injury report of Abdul Baten and Abdus Sayed. 8. PW 4, Anupa Anufa, said that at night of when his husband was absent, the accused persons came into house and looted their shop. When the villagers had come, the accused persons went away. The accused persons assaulted Abdul Rahim, Baten, Zakir and others. In cross examination, she denied that Samsul Bari died in this incident. 9. PW 5, Md. Rafiqul Haque, stated that he heard a commotion at around 2.00 A.M. and then came to know from the villagers that the accused persons including Zamer Ali, Tazer Ali and others went to Aizur Maulavi s house. He did Page 3 of 6

4 not see any incident but found that the fence was broken at the place of occurrence. 10. PW 6, Mustt. Aliza Khatoon, stated that complainant is her father. She knew accused Noor Islam, Akes Ali, Azibar, Zamir Ali, Amirul, Manowar, Muslem, Ziarul, Zilkat etc. At around 1.00 A.M. on , these accused persons came armed with dagger, Khurpi and lathi. They got inside the house and called Meherun Nessa. Her father-in-law came out to call the villagers and when they raised commotion, the accused persons assaulted them and then went away. 11. PW 7, Mustt Shahabanu Khatoon, said that incident took place at around A.M. on Her husband was not at home. She lived in the same compound. A number of men, all armed with lathi, sulpi, dagger, came at night and entered her father-in-law s house by breaking open the door and damaged the house. They wanted to take Meherun Nessa away. Failing to kidnap Meherun Nessa, the accused persons entered her house by breaking open the door and damaged the house. 12. PW 8, Prodip Kr. Nath, was the Investigating Officer. He was Second Officer under Sootea Police Station. He visited the place of occurrence and prepared a sketch map being Exhibit 3 wherein Exhibit 3(1) was his signature. Thereafter, he submitted charge sheet. In course of cross examination, he stated that some of the accused persons were accused of offence under section 302 IPC in the analogous case. 13. The learned court thereafter cross examined all the accused persons under section 313 Cr.P.C. when they claimed to be innocent. Having considered all these materials brought on record, the learned Sessions Judge by his Page 4 of 6

5 judgment and order dated acquitted all the accused persons from the charges on the following grounds:- (1) None of the witnesses had explained as to how Md. Samsul Bari, the deceased died in this incident who was accused as accused No. 7 in the FIR. (2) Some of the witnesses of this case are arrayed as accused under section 302 of the IPC in the cross case. (3) The incident took place outside the house of Md. Azizul and so section 457 of the IPC was not applicable. (4) Although charge was framed under 354 of the IPC, yet no lady was examined as victim of the offence. None of the witnesses made any allegation as to whether any woman was molested or her modesty was outraged. (5) There was a free fight between both sides and it could not be proved by producing cogent evidence as to who were the aggressors and who were the victims. 14. Having heard Mr. A Choudhury, learned counsel for the appellant and Ms. S Jahan, learned Additional Public Prosecutor and on perusal of the depositions all the witnesses, we find that the aforesaid 5 (five) grounds on which the acquittal of the accused persons are based, are based on materials on record. Learned counsel for the appellant could not show as to how these findings can be called as perverse. He has failed to point out any illegality in the order. 15. It is established law that there are double presumptions in an appeal against acquittal. Apart from the presumption of innocence of an accused, here the accused are also supported by a judgment of acquittal. After full trial, the learned trial court did not find them guilty of the offences charged and so, burden is heavy on the appellant to show that the findings of the learned trial Page 5 of 6

6 court are perverse and that there are sufficient evidence on record to prove the offence beyond reasonable doubt. It cannot be ignored that this appeal has arisen out of a cross case which was lodged by the accused persons of a Sessions case wherein one Samsul Bari was killed and two other persons were seriously injured. Both the proceedings were tried in the same court by the same Judge and thereupon the present accused persons were acquitted of all the charges. In view of this, we do not find that it is a fit case for interfering with the judgment passed by learned Sessions Judge. 16. The appeal stands dismissed. 17. No order as to costs. JUDGE CHIEF JUSTICE BiswaS Page 6 of 6

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