Sri Bharat Roy vs State Of Assam And Anr
2021 Latest Caselaw 2960 Gua

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GAHC010032022017




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                Case No. : Crl.A./282/2017

            SRI BHARAT ROY
            S/O LATE BIPIN CH. ROY, R/O BELGURI, GOLOKGANJ, DIST. DHUBRI.


            VERSUS

            STATE OF ASSAM and ANR,


            2:BHABENDRA NATH DAS
            WIERLESS RUKMINI NAGAR
             GUWAHATI 78100



Advocate for the Petitioner   : MS.P SAHA

Advocate for the Respondent :

BEFORE

HON'BLE MR. JUSTICE SUMAN SHYAM HON'BLE MR. JUSTICE K. SEMA

Date of hearing : 18.11.2021.

Date of judgment :            18.11.2021.
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                             JUDGMENT AND ORDER (Oral)

(Suman Shyam, J)

Heard Mr. B. K. Bhattacharjee, learned counsel appearing for the sole

appellant. We have also heard Ms. S. Jahan, learned Additional Public Prosecutor,

Assam, appearing for the State/respondent No.1. None has appeared for the

informant/respondent No.2.

2. The appellant herein was one of the four accused persons, who were

convicted under Sections 120(B)/364(A)/302/201 of the Indian Penal Code (IPC) by

the common judgment and order dated 17.01.2013 passed by the learned

Additional Sessions Judge No.2, Kamrup at Guwahati in Sessions Case No.178(K)/2003

and inter-alia sentenced to undergo rigorous imprisonment for life and also to pay

fine of Rs.10,000/- with default stipulation.

3. Based on the ejahar dated 25.04.2002 lodged before the Dispur Police Station

by the father of the victim reporting that his son Pankaj Kumar Das has been

abducted for ransom by Sri Manik Roy and his associates, Dispur P.S. Case

No.437/2002 was registered under sections 120(B)/365/385/342 IPC. Later on, Sections

302/201 IPC were added. Upon completion of investigation charge-sheet was

submitted against four accused persons viz., Sri Manik Roy, Sri Bharat Roy i.e. the

appellant, Md. Kaser Ali and Sri Babul Adhikari. Two other accused persons were

shown as absconders. By the impugned judgment all the four accused persons have

been convicted. In view of the order that we propose to pass in the present case, it Page No.# 3/5

would not be necessary to record the excruciating details pertaining to the facts and

circumstances of the case.

4. Aggrieved by the common judgment and order dated 17.01.2013, the three

co-accused persons viz., Md. Kaser Ali, Sri Babul Adhikari alias Bablu Adhikari and Sri

Manik Roy had preferred three separate criminal appeals i.e. Crl. Appeal

No.72/2013, Crl. Appeal No.73/2013 and Crl. Appeal No.83/2013, respectively. All the

three appeals were disposed of by the common judgment and order dated

01.06.2018 whereby a Division Bench of this Court had held that the conviction of the

appellants were based on confessional statements of the three co-accused persons

viz., Md. Kaser Ali, Sri Babul Adhikari alias Bablu Adhikari and Sri Manik Roy but their

confessional statements were not recorded by following the due process of law and

after giving them sufficient time for reflection. By observing that save and except the

confessional statement of the three accused persons recorded under Section 164

Cr.P.C. there is no other evidence to sustain the conviction of the appellants, the

learned Division Bench had set aside their conviction by the judgment 01.06.2018

upon re-evaluation of the evidence available on record. The State of Assam has

admittedly not preferred any appeal against the judgment and order dated

01.06.2018.

5. It appears that the instant appeal was preferred at a much belated stage as a

result of which, the same was not disposed of by the judgment dated 01.06.2018.

6. By referring to the judgment and order dated 01.06.2018 Mr. Bhattacharjee,

learned counsel for the appellant, submits that the conviction of all the four accused Page No.# 4/5

persons including the present appellant by the learned Additional Sessions Judge

No.2, Kamrup at Guwahati in connection with Sessions Case No.178(K)/2003 is based

on the same set of evidence. Since the learned Division Bench, while disposing of the

three appeals preferred by co-accused persons has held that there is no evidence

available on record to sustain their conviction, according to the learned counsel for

the appellant, the same analogy would extend to the present appeal as well since

the appellant herein was also convicted on the basis of the same set of evidence. Mr.

Bhattacharjee, therefore, submits that by applying the principle of parity the

appellant be also acquitted by setting aside the impugned judgment and order

dated 17.01.2013 in so far as his conviction and sentence is concerned.

7. Ms. Jahan, learned Addl. P.P., Assam, has submitted in her usual fairness that it

is correct that the evidence available on record for conviction of all the four accused

persons is the same and therefore, considering the observations and conclusions

recorded in the judgment and order dated 01.06.2018 passed by the learned Division

Bench of this Court, the impugned judgment and order dated 17.01.2013, in so far as

the present appellant is concerned, would also have to be interfered with.

8. Based on the submissions advanced by learned counsel for both sides, we

have carefully gone through the materials on record as well as the judgment and

order dated 01.06.2018 passed by the Division Bench and find that the ratio of the

said decision would be squarely applicable to the facts and circumstances of the

present case as well. The reasons for which the impugned judgment and order dated

17.01.2013 passed by the learned Additional Sessions Judge No.2, Kamrup at Page No.# 5/5

Guwahati was found to be unsustainable in case of the three other

accused/appellants, in our view, would be equally applicable in the present case as

well.

9. After the decision of Ram Laxman vs. State of Rajasthan reported in (2016)12

SCC 389 law is firmly settled that it would not be permissible for the Court to split the

evidence so as to grant benefit to some of the co-accused while maintaining the

conviction of another when all of them stand on the same footing on other aspects.

From a careful reading of the impugned judgment we find that all the four accused

persons stand on equal footing in so far as the evidence is concerned. Therefore, the

appellant herein would be entitled to the benefit of the judgment and order dated

01.06.2018.

10. For the reasons stated herein above, this appeal succeeds and the same is

hereby allowed. The impugned judgment and order dated 17.01.2013, in so far as the

present appellant is concerned, stands set aside and the appellant viz., Bharat Roy, is

set at liberty.

Since the appellant is already out on bail, the bail bond of the appellant would

stand discharged with immediate effect.

Send back the LCR.

                                  JUDGE                                 JUDGE




Comparing Assistant