Md. Jashim Uddin Barbhuiya vs The State Of Assam And Anr
2022 Latest Caselaw 3526 Gua

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GAHC010214822021




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

                                 Case No. : Crl.L.P./25/2021

            MD. JASHIM UDDIN BARBHUIYA
            S/O- AFTAB UDDIN BARBHUIYA, R/O- HAILAKANDI TOWN, WARD NO. 11,
            P.O., P.S. AND DIST.- HAILAKANDI, PIN- 788151.



            VERSUS

            THE STATE OF ASSAM AND ANR.
            REP. BY THE PUBLIC PROSECUTOR, ASSAM

            2:MAULANA SARIMUL HAQUE LASKAR
             S/O- LATE AYUB ALI LASKAR
             R/O- HAILAKANDI TOWN
            WARD NO. 4
             P.O.
             P.S. AND DIST.- HAILAKANDI
            ASSA

Advocate for the Petitioner   : MR. A Y CHOUDHURY

Advocate for the Respondent : PP, ASSAM




                                   BEFORE
                   HONOURABLE MR. JUSTICE KALYAN RAI SURANA

                                          ORDER

Date : 14.09.2022

Heard Mr. T.A. Choudhury, learned counsel for the petitioner. Also heard Mr. Bhaskar Sarma, learned Addl. P.P. for the State respondent no.1 Page No.# 2/9

and Mr. K.A. Mazumder, learned counsel for the respondent no.2.

2. By filing this criminal leave petition under section 378(4) of the Cr.P.C., the petitioner has prayed for leave to file the accompanying appeal against the judgment and order dated 22.02.2021, passed by the learned Addl. Sessions Judge, Hailakandi, in Crl. Appeal No. 45/2018. By the said judgment, the judgment and order dated 30.01.2018, passed by the learned Judicial Magistrate, First Class, Hailakandi in C.R. Case No. 1110/2012 under section 426/379 of IPC, thereby acquitting the respondent no. 2 was affirmed.

3. It may be mentioned that neither in this application for leave to appeal nor in the accompanying memo of appeal, the petitioner has annexed (i) the complaint petition, (ii) evidence of the witnesses, and (iii) the judgment passed by the learned trial Court.

4. The learned counsel for the petitioner has referred to the statements made in this petition and it was submitted that the learned Courts below had erred in law by acquitting the respondent no.2 without applying judicial mind that minor discrepancy in the evidence cannot be held to be fatal. It was submitted that the evidence-in- chief of the 4 (four) PWs could not be demolished in their cross examination. Accordingly, it was submitted that the learned Courts below had not applied their judicial mind, which has caused failure of justice.

5. While the learned Addl. P.P. remained neutral, the learned counsel for the respondent no. 2 had made his submission to support the impugned judgment.

6. It is seen that it is not the allegation of the petitioner that in its Page No.# 3/9

judgment, the learned trial Court did not correctly discuss the evidence on record.

7. To assist the Court, the learned counsel for the respondent no. 2 had produced a certified copy of the judgment of the learned trial Court. On a perusal of the same, it appears that the allegations against the respondent no.2 is to the effect that the respondent no.2, who is the Advisor of North East India Ahle Sunnat Wal Jammat and was also the Retired Principal of Hailakandi Title Madrassa, had snatched from the petitioner, the public donation amount of Rs.1,500/- to Rs.1,600/-, which the petitioner along with others had collected from public after the Eid namaz on 27.10.2012. In his cross examination, the petitioner (PW-1), namely, Md. Jashim Uddin Barbhuiya had admitted that he was also a follower of the respondent no.2. He had further admitted that though police outpost was about 200-250 metres away from the place of occurrence but he had not reported the matter to police and the complaint case was filed after a month.

8. It further appears that the PW-2, namely, Nazim Uddin Mazumder is not an eye-witness, which was admitted in his cross examination. He had stated that he had sent the petitioner and others to collect donation for the Madrassa and he had received information through mobile from the petitioner that the respondent no. 2 had tried to beat him and snatched away the donation of Rs.1,500/- to Rs.1,600/-, which the petitioner along with others had collected.

9. In his evidence-in-chief, the PW-3, namely, Bahar Uddin Mazumder had stated that on 27.10.2012 at 10.00 am, he along with the petitioner, one Siraj Moulana (since deceased) and a small boy were collecting Page No.# 4/9

donation for a mosque from the public, when the respondent no. 2 came and threatened them and took away the collected money of Rs.1,500/- to Rs.1,600/-. In his cross examination, he had admitted that the PW-2, was his friend and was also the teacher of "Kariana Madrassa" and that there was a civil suit pending between the PW-2 and the respondent no. 2 in connection with "Kariana Madrassa", where he had given a statement that there was no "Kariana Madrassa". He had admitted that the respondent no. 2 was a respected person and also admitted that he had not counted the collected money. The PW-3 had also stated in his cross examination that 12-14 persons were with the respondent no. 2 and it was specifically admitted that the companion of the respondent no. 2 took their money. Therefore, the evidence of PW-3 exonerates the commission of the alleged offence by the respondent no. 2.

10. The PW-4 is admittedly not an eye-witness. He had stated in his examination-in-chief that the petitioner was his friend whom he know since 1971 and he had been working in Hailakandi Title Madrassa and used to come to "Kariana Madrassa", which was being run through public donation and about 4-5 years back during Eid, he came to know that some students of Madrassa were crying and they told that their collected money was looted away. However, in his cross-examination he had stated that he did not see who had looted the money.

11. The learned trial Court, in its judgment had not erred in holding that the PW-2 and PW-4 were hearsay witnesses. There is no doubt that the PW-1 and PW-3 were purportedly present in spot, and they were interested witnesses. Therefore, it cannot be said that the learned trial Court had committed any error in its view that although the incident happened in broad Page No.# 5/9

daylight and in the presence of a large crowd but no independent witnesses were examined. The learned trial Court had doubted the veracity of the allegations in the complaint because it was projected that there was a village bichar, but the witnesses were silent on the alleged bichar, and therefore, the learned trial Court does not appear to have committed any error in holding that the delay was fatal to the case of the prosecution in the backdrop of the civil suit between the petitioner and the respondent no.2.

12. On a perusal of the appellate judgment, it is noticed that in this case the learned trial Court had framed charge under section 426/379 IPC against the respondent no. 2 and after trial, by judgment and order dated 24.05.2016, acquitted the respondent no.2. Against the said judgment, the petitioner had preferred an appeal, which was registered as Crl. Appeal No. 32/2016 and the learned Sessions Judge, Hailakandi vide judgment and order dated 20.04.2017, had remanded the case to the learned trial Court to give an opportunity to the complainant to examine some more witnesses, specifically naming two persons, Baharul Islam and Siraj Uddin and other eye witnesses. After remand, the additional witnesses were examined. These facts have been suppressed in this leave petition and as already indicated herein before, the complaint petition, evidence of the witnesses and trial Court judgment have also been suppressed for the reasons best known to the petitioner. Therefore, in light of the provisions of section 114, Ill. (g) of the Evidence Act, 1872 a presumption can be drawn that the documents which have been withheld, if produced would have been adverse to the petitioner. This presumption is partly confirmed from the perusal of the judgment of acquittal dated 30.01.2018, passed by the learned trial Court.

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13. On a perusal of the impugned appellate judgment, it appears that the learned counsel for the petitioner had laid much stress on the projection that the respondent no. 2 was a very influential religious leader and no one would dare to depose against him and moreover, if there was no truth about the incident, no one would have filed the complaint against the respondent no. 2 and therefore, it was urged before the learned first appellate Court that therefore, the learned appellate Court ought to have drawn an inference of commission of offence by the respondent no.2. We do not find any infirmity in the appellate decision of discarding the said argument by the learned appellate Court, by relying on the case of Ghurey Lal v. State of U.P., (2008) 10 SCC 450. The learned counsel for the petitioner had not made any attempt to show that the reliance on the said citation by the learned appellate Court was not proper.

14. We find no infirmity in the appellate Court judgment, whereby the evidence of PW-1 and PW-3, both eye-witnesses, was doubted because of the delay of 7 days in filing a complaint petition. The learned appellate Court had observed that as per PW-3, the incident had taken place near Hailakandi Bus Stand and as per the evidence of PW-1, the place of incident was near Katlicherra Bus Stand. The learned Court observed that there were loose ends in the evidence of the petitioner's side. In this regard, the learned counsel for the petitioner has submitted that there are two names of the same bus stand. In this connection as per google maps, the Katlicherra Bus stand is at Katlicherra, PIN 788161, and the Hailakandi Bus Terminus is at NH-154, Gangpar Dhumkar, Hailakandi, PIN-788155 and the road distance between the two bus stand is shown as 26.9 km via NH-6. Therefore, if the case of the petitioner is that single bus stand is known as Hailakandi Bus Stand and Katlicherra Bus Stand, this Page No.# 7/9

should have been explained in the evidence of the PWs. The reference to google map for the two bus stand was only to test the argument, and the observation of the Court is not intended to be treated as a finding of fact or a final opinion of the Court. As already discussed herein before, the learned appellate Court had not erred on facts by referring to the evidence of PW-3, wherein he had deposed that the companions of the respondent no. 2 was responsible for the offence, thus exonerating the respondent no. 2 of committing any offence.

15. Thus, the learned Courts below had not erred on facts and in law in not placing reliance on the evidence of the PW nos. 2 to 4, which has been discussed herein before. The evidence of PW-1 is not supported by the evidence of PW-3. Thus, the evidence of the PWs, as discussed by the learned trial Court and the learned appellate Court, if read as a whole, does not make out any case against the petitioners, or that it does not disclose commission of any cognizable offence. Thus, the learned counsel for the petitioner has miserably failed to demonstrate that the learned Courts below had committed any error on facts or in law in acquitting the respondent no.2.

16. Therefore, notwithstanding that the petitioner has not been able to demonstrate that there was any error whatsoever in the concurrent judgment of acquittal by both the learned Courts below. Even assuming that any other view is possible, still this Court will be a loath to substitute its views on the concurrent finding of both the learned Courts below without there being anything on record to show that the particular finding of fact was perverse. It could not be demonstrated that the learned trial Court had failed to take into consideration any relevant evidence or has acquitted the respondent no. 2 on the basis of any irrelevant consideration. No attempt has been made to Page No.# 8/9

demonstrate that the burden of proof was wrongly shifted to the petitioner. Rather, it is observed from the judgment of the learned appellate Court that the appellate Court had remanded the matter back to the learned trial Court and granted an opportunity to the petitioner to examine two named witnesses and other eye witnesses. However, the PW-3 has admitted in his cross-examination that the companion of the respondent no. 2 had allegedly taken away the money. The alleged companions of the respondent no. 2 are not proceeded against by the petitioner.

17. Thus, in the considered opinion of the Court, the two points of determination as framed by the learned trial Court, viz., (i) whether the accused is guilty of causing mischief as alleged, on the alleged day of occurrence thereby causing the offence punishable under section 426 of the IPC? and (ii) whether the accused is guilty of committing theft of donation money, as alleged, on the alleged day of occurrence thereby causing the offence punishable under section 379 of the IPC? , were correctly answered, and the learned counsel for the petitioner has not been able to even prima facie show that the decision on both the points of determination was not based on sound principles of appreciation of evidence in a criminal case. It is too well settled that in a criminal case, the commission of offence by the accused has to be proved beyond reasonable doubt because for offence under section 426 and 379 of the IPC no presumption is prescribed that the offence was committed by the accused and no negative burden has been placed on the accused.

18. Thus, in light of the discussions above, the Court is of the considered opinion that no case has been made out by the petitioner for grant of leave to appeal against the concurrent finding of acquittal by the learned trial Page No.# 9/9

Court as well as by the learned lower appellate Court. Therefore, the prayer for leave to appeal is refused.

19. This application for leave to file appeal is dismissed. Resultantly, the accompanying unregistered criminal appeal filed by the petitioner herein under filing serial no. 7667/2021 shall also stand dismissed.

20. The Registry shall transmit a copy of this order to the Court of the learned Additional Sessions Judge, Hailakandi, so as to make this order a part of the record of Criminal Appeal No. 45/2018.

JUDGE

Comparing Assistant