Abdur Rahim vs The State Of Assam And Anr
2021 Latest Caselaw 2966 Gua

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GAHC010191392021




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

                                 Case No. : Crl.Pet./660/2021

              ABDUR RAHIM
              SON OF LATE JAMIRUDDIN AHMED
              R/O VILL- KARBALA, HASILAPARA
              PS. AND DIST. GOALPARA, ASSAM
              PIN-783101

              VERSUS

              THE STATE OF ASSAM AND ANR
              REP. BY THE PP, ASSAM

              2:JOYNAB BEWA
               W/O LATE HABIBUR RAHMAN
              R/O UDAY NAGAR
               BALADMARI
              P.S. AND DIST. GOALPARA
              ASSA

Advocate for the Petitioner   : MR Z ALAM

Advocate for the Respondent : PP, ASSAM




                                     BEFORE
                    HON'BLE MRS. JUSTICE RUMI KUMARI PHUKAN


                                          ORDER

18.11.2021.

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Heard the learned counsel for the petitioner and the learned Addl. P.P., Assam, appearing for the State respondent.

2. The present petition under Section 482 of the CrPC has been preferred, raising certain grievances against the order of the learned Appellate Court i.e. Addl. District Judge, Goalpara, passed in Criminal Appeal No.5/2017, arising out of G.R. Case No.319/2008.

3. The petitioner herein is one of the accused (there were 10 accused) in the aforesaid G.R. Case No.319/2008, under Sections 147/448/323/337/506/427 of the IPC. The trial Court acquitted the accused persons and in the appeal preferred against the impugned judgment and order, the learned appellate Court set aside the order of acquittal and remanded the matter to the learned trial Court to decide the matter afresh, with direction to record the statement of the accused persons under Section 313 of the CrPC and to pass a fresh judgment, by giving opportunity of hearing to the parties.

4. While remanded the case to the learned trial Court, in para 16 of the judgment, the learned appellate Court had discussed about the case as follows:

"16. On going through the evidence of witnesses it appears that all the witnesses have deposed that there was an incident of marpit occurred on 10.04.2008 and in that incident the accused persons entered into the PCO and took cash from the cash box and also assaulted the informant and others. The learned trial Court while appreciating the evidence of the witnesses gave much stress on the contradictions found in the evidence of the witnesses. The learned trial Court held that no specific evidence has been given by witnesses regarding the participation of the accused persons' involvement in the incident. But the evidence on record clearly shows that the prosecution has alleged that the accused persons have entered into the PCO and committed the incident of marpit and looted articles from the house of the informant. M.O. in his evidence proved the injury reports of the victims Ext.2. His evidence shows that on examination he found injuries on Joynab Bewa, Jobedur Rahman, Jomirul Islam, Moniruddin and Abdul Malek. The learned trial Court while appreciating the evidence of the witnesses found that the victims did receive injuries and the Medical Officer also corroborated this facts but the said medical reports have not been properly appreciated by the learned trial Court. On going through the record it further transpires that the statement of the accused persons though recorded by learned trial Court what answers were given by the accused persons are not legible. In view of the above, I am of the view that the learned trial Court has failed to appreciate the evidence on record in proper perspective. The learned trial Court has also not properly Page No.# 3/3

recorded the statement of the accused persons U/s.313 of Cr.P.C. Situated thus, I am of the view that this is a fit case to remand the case for retrial and the learned CJM, Goalpara will record the statements of the accused persons U/s.313 of Cr.P.C. properly and thereafter, pass, fresh judgment giving opportunities to both parties".

5. Now the petitioner (one of the accused), apprehending that the learned trial Court may prejudice for such an observation made by the learned appellate Court, while trying the case afresh, has approached this Court contending that such an observation should be expunged from the order, as the learned trial Court will be prejudiced for such observation, made above.

6. Considered the submission made Mr. Z. Alam, the learned counsel for the petitioner as well as Mr. R.J. Baruah, the learned Addl. P.P., Assam, representing the State respondent. Also gone through the impugned order.

7. It is to be noted that the learned appellate Court, has made some observations that there is no proper appreciation of evidence by the learned trial Court as well as the report of the Medical Officer is also not properly taken into account and accordingly, has remanded the matter to the learned trial Court for a fresh trial.

8. Obviously the learned trial Court will now pass a fresh judgment, on the basis of the same set of evidence in a judicious manner and the observation of the learned appellate will have no bearing while appreciating the materials on record because a Judicial Officer has his own opinion for accepting or rejecting the evidence on record, while arriving at the findings. According to this Court, such observation will not come on the way, while deciding the matter afresh by the trial Court and as such there is no occasion to interfere into the matter.

9. Resultantly the present petition stands disposed of, with an observation that the learned trial Court will not be persuaded with the observation made by the learned appellate Court, in any manner and decide the case in judicious manner and in accordance with the law.

10. The matter stands disposed of at the motion stage itself.

JUDGE

Comparing Assistant