Gauhati High Court
Shahjahan Ali vs The State Of Assam And 10 Ors on 3 March, 2021
Page No.# 1/5
GAHC010124982020
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.L.P./42/2020
SHAHJAHAN ALI
S/O- ABUL KASEM, R/O- VILL.- SALIMPUR, MOUZA- MANDIA, P.O.
PAHUMARA, P.S. BAGHBOR, DIST.- BARPETA, ASSAM, PIN- 781308.
VERSUS
THE STATE OF ASSAM AND 10 ORS
REP. BY P.P., ASSAM
2:ADAM ALI
S/O- LATE MANGAL ALI
R/O- VILL.- DANGRA CHOWK
MOUZA- BARPETA
P.O. DHAKUA
P.S. AND DIST.- BARPETA
ASSAM
PIN- 781309.
3:MOINAL HAQUE
S/O- LATE MADAN ALI
R/O- VILL.- DANGRA CHOWK
MOUZA- BARPETA
P.O. DHAKUA
P.S. AND DIST.- BARPETA
ASSAM
PIN- 781309.
4:RAFIQUL ISLAM
S/O- KADAM ALI
R/O- VILL.- DANGRA CHOWK
MOUZA- BARPETA
P.O. DHAKUA
Page No.# 2/5
P.S. AND DIST.- BARPETA
ASSAM
PIN- 781309.
5:KURPAN ALI
S/O- BADAR ALI
R/O- VILL.- DANGRA CHOWK
MOUZA- BARPETA
P.O. DHAKUA
P.S. AND DIST.- BARPETA
ASSAM
PIN- 781309.
6:HAKIM ALI
S/O- KADAM ALI
R/O- VILL.- DANGRA CHOWK
MOUZA- BARPETA
P.O. DHAKUA
P.S. AND DIST.- BARPETA
ASSAM
PIN- 781309.
7:SIRAJUL HOQUE
S/O- KADAM ALI
R/O- VILL.- DANGRA CHOWK
MOUZA- BARPETA
P.O. DHAKUA
P.S. AND DIST.- BARPETA
ASSAM
PIN- 781309.
8:JANIP ALI
S/O- LATE JONGSHER
R/O- VILL.- DANGRA CHOWK
MOUZA- BARPETA
P.O. DHAKUA
P.S. AND DIST.- BARPETA
ASSAM
PIN- 781309.
9:AYUB ALI
S/O- LATE JONGSHER ALI
R/O- VILL.- DANGRA CHOWK
MOUZA- BARPETA
P.O. DHAKUA
P.S. AND DIST.- BARPETA
ASSAM
PIN- 781309.
Page No.# 3/5
10:SABUR ALI
S/O- KHORSHED ALI
R/O- VILL.- DANGRA CHOWK
MOUZA- BARPETA
P.O. DHAKUA
P.S. AND DIST.- BARPETA
ASSAM
PIN- 781309.
11:AINAL HOQUE
S/O- LATE MADAN ALI
R/O- VILL.- DANGRA CHOWK
MOUZA- BARPETA
P.O. DHAKUA
P.S. AND DIST.- BARPETA
ASSAM
PIN- 781309
Advocate for the Petitioner : MR. S N ADHYAPAK
Advocate for the Respondent : PP, ASSAM
Linked Case :
SHAHJAHAN ALI
VERSUS
THE STATE OF ASSAM AND 10 ORS (D)
------------
Advocate for :
Advocate for : appearing for THE STATE OF ASSAM AND 10 ORS (D)
Page No.# 4/5
BEFORE
HONOURABLE MR. JUSTICE AJIT BORTHAKUR
ORDER
Date : 03-03-2021
Heard Mr. S.N. Adhyapak, learned counsel for the petitioner. Also heard Mr. B.B. Gogoi,
learned Addl. P.P., Assam appearing for the State respondent No. 1 and Mr. S.B. Rahman,
learned counsel for the respondent Nos. 2 to 11.
This application under Section 378(3) of the Cr.P.C. has been preferred by the
informant/petitioner seeking leave to appeal under Section 372 of the Cr.P.C. against the
order of acquittal of the respondents No. 2 to 11 in Sessions Case No. 311/2016 under
Sections 448/436/427/34 of the IPC passed by the learned Sessions Judge, Barpeta.
The petitioner's case is that on 31.10.2014, he filed an ejahar before the Officer-in-
Charge, Barpeta P.S. against the respondents No. 2 to 11, whereupon Barpeta P.S. Case No.
3101/2014 was registered. After completion of investigation, the investigating officer laid a
charge-sheet on 31.10.2015. The learned Additional Chief Judicial Magistrate, Barpeta
committed the said case to the Court of learned Sessions Judge, Barpeta for trial and
accordingly, Sessions Case No. 311/2016 was registered. The learned Sessions Judge,
Barpeta, after hearing of both sides and perusal of the materials on the case diary, having
found prima facie case framed the charges under Sections 448/436/427/34 of the IPC, which
the respondents No. 2 to 11 denied. After trial of the case, the learned Sessions Judge,
Barpeta by the said judgment and order acquitted all of them of the charges. The petitioner
has, inter-alia, contended that the learned Sessions Judge, Barpeta failed to appreciate the
evidence on record from proper perspective inasmuch as the entire evidence of P.W. 7, the
investigating officer was erroneous and doubtful and on the other hand, ignored the
corroborative testimony of P.Ws 1, 2, 3 and 4, which has caused serious miscarriage of justice
to him.
Mr. S.N. Adhyapak, learned counsel for the petitioner/informant, in addition to
reiterating the above grounds cited in the petition submits that the prosecution failed to
examine the eye witness namely Siddik Ali, who is a cited witness in the case. According to
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Mr. Adhyapak, his non examination by the prosecution in the case has occasioned failure of
justice to informant.
Mr. B.B. Gogoi, learned Addl. Public Prosecutor, submits that the learned Sessions
Judge, Barpeta while delivering the said judgement has given sufficient and satisfactory
reasons in support of his decision to acquit the accused/respondents No. 2 to 11 and as such,
no appeal against the acquittal order has been preferred by the State.
The respondents No. 2 to 11 have contested the petition by filing an affidavit-in-
opposition. Mr. S.B. Rahman, learned counsel appearing for the said respondents, has denied
the entire contentions made by the petitioner/informant. Mr. Rahman submits that P.W. 2
contradicted the evidence of P.W. 1, the petitioner/informant as he has not stated specifically
as to who or all accused persons set fire to the house of Abul Hussain. Likewise, the evidence
of P.W. 3 has not been corroborated by any of the P.Ws and his evidence is contradicted by
P.W. 7 (the I.O.). Mr. Rahman, learned counsel for the respondents No. 2 to 11, also submits
that there is no chance of success for the petitioner/informant if leave to appeal is granted.
On hearing the learned counsel of both sides and perusal of the order of acquittal, this
Court finds that subject to a detail scrutiny of evidence on record and on the ground of
keeping out of the witness box of one witness cited in the charge-sheet during trial of the
case by the learned trial Court, it is expedient in the interest of justice to allow leave to
appeal as prayed by the petitioner/informant.
Accordingly, the petition stands allowed.
Registry to register the connected appeal and list the same.
The petition stands disposed of.
JUDGE
Comparing Assistant
