Gauhati High Court
Page No.# 1/6 vs The State Of Assam on 19 August, 2025
Author: M. Zothankhuma
Bench: Michael Zothankhuma
Page No.# 1/6
GAHC010132082024
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.A./214/2024
ABDUL AZIZ AND ANR.
S/O LATE JAL MAMUD MUKHI,
VILL.- MAJERCHAR,
P.S.- BAGHBAR, DIST.- BARPETA, ASSAM.
2: JASMAT ALI
S/O ABDUL AZIZ
VILL.- MAJERCHAR
P.S.- BAGHBAR
DIST.- BARPETA
ASSAM
VERSUS
THE STATE OF ASSAM
REP. BY THE P.P., ASSAM.
Advocate for the Petitioner : MR. A M BORA, MR. V A CHOWDHURY,MS. C CHOUDHURY
Advocate for the Respondent : PP, ASSAM,
BEFORE
HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA
HONOURABLE MR. JUSTICE KAUSHIK GOSWAMI
ORDER
19.08.2025
(M. Zothankhuma, J)
1. Heard Mr. A.M. Bora, learned Senior Counsel appearing for the appellants
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assisted by Mr. V.A. Chowdhury, learned counsel. Also heard Ms. B. Bhuyan,
learned Additional Public Prosecutor for the State.
2. The present appeal is against the judgment and order dated 05.06.2024
passed by the learned Sessions Judge, Barpeta in Sessions Case No.207/2011,
by which the appellants have been convicted under Section 147/302 IPC and
have been sentenced undergo life imprisonment with a fine of Rs.10,000/-, in
default rigorous imprisonment for 1 (one) year.
3. The case of the appellants is that the present two appellants i.e., Abdul
Aziz and Jasmat Ali, along with Joban Ali had been acquitted of the charge
under Section 147/302 IPC by the Court of the learned Additional Sessions
Judge (FTC), Barpeta in Sessions Case No.207/2011, arising out of Bahabar P.S.
Case No.151/2008, vide judgment dated 28.09.2015, on account of the learned
Trial Court having come to a finding that the evidence recorded by the
witnesses during the trial showed that two views were possible in relation to the
death of the deceased. As the view in favour of the appellants/accused persons
were to be adopted in terms of the judgment of the Supreme Court in the case
of State through Inspector of Police, A.P. vs. K. Narasimhachary ,
reported in (2005) 8 SCC 364, the appellants were acquitted of the offence.
4. The mother of the deceased Mustt Hawa Khatun, who was also the
informant and prosecution witness no.16, challenged the impugned judgment
dated 28.09.2015 passed by the learned Trial Court in Sessions Case
No.207/2011, vide Criminal Appeal No.17/2016 before this Court.
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5. This Court, vide judgment and order dated 24.07.2019 disposed of
Criminal Appeal No.17/2016, by holding that the evidence recorded by the
learned Trial Court was inadequate to arrive at any view of what had happened,
let alone forming two views, either in favour of the prosecution or in favour of
the accused persons. This Court, thus remanded the matter back to the learned
Trial Court for taking further evidence by giving opportunity not only to the
prosecution, but also to the accused persons, for discharging the burden under
the 'last seen together theory' and to explain how the dead body of the
deceased was found in the house of the appellant Abdul Aziz. Only after further
opportunity was given to adduce further evidence and examination under
Section 313 Cr.P.C, was the learned Trial Court to pass a fresh order.
6. Paragraph 11 to 14 of the judgment and order dated 24.07.2019 passed
by this Court in Criminal Appeal No.17/2016 is reproduced hereinbelow, as
follows :
"11. We also take note of that the said piece of evidence of PW-11 that the
three accused persons came and called the deceased Almas and he went with
them past 10 o'clock in the night remains unconfronted and unimpeached.
Further we also take note of that the dead body of the deceased Almas was
found in the house of accused Abdul Aziz and Abdul Aziz was sitting in the same
room where the dead body was found. From that point of view also, we are of
the view that Section 106 of the Evidence Act would be applicable in respect of
the accused Abdul Aziz to explain as to how the dead body was found in his
house.
12. A stand has been taken by Mr. MA Sheikh, learned counsel for the
respondent accused persons that the evidence of PW-1 Md. Basiruddin in cross
provides that the accused Abdul Aziz had told him that the deceased Almas had
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entered his house upon being injured by someone outside and after entering,
he had died. But again the said statement of PW-1 in cross is not the evidence
of PW-1 but it is merely as to what was told to him by the accused Abdul Aziz.
Accordingly, in the absence of any such explanation by the accused Jasmat,
Muktar and Ziaur as regards the last seen together theory and in the absence of
any explanation by the accused Abdul Aziz under Section 106 of the Evidence
Act, we are of the view that in the instant case, the evidence on record is short
of being adequate to arrive at any view as to what had happened let alone
forming two views out of which one is in favour of the accused and one in
favour of the prosecution. In view of the inadequacy of the evidence, we are of
the view that the matter requires to be remanded back for taking further
evidence so as to make out the circumstances which resulted in the death of
the decease complete.
13. Accordingly, we remand the matter back to the learned trial Court for
taking further evidence and in doing so, the learned Court shall give adequate
opportunity to the accused Jasmat, Muktar and Ziaur to render their evidence
for discharging their burden under the last seen together theory and also to the
accused Abdul Aziz to explain as to how the dead body of the deceased was
found in his house. In doing so, learned Court shall also give an appropriate
opportunity to both the parties to cross examine any of the witnesses that have
already been examined and also to bring further witnesses for their
examination-in-chief as well as their cross examination and for the purpose the
parties may bring witnesses they would like to bring, provided otherwise
admissible.
14. Upon conclusion of the evidence, further opportunity be given to the
accused persons to make their stand under Section 313 Cr.P.C. and upon the
evidence on record being complete, the learned trial Court shall pass a fresh
order by giving a consideration to the whole of the evidence, including the
evidence already on record. The Judgment and Order to be passed by the
learned trial Court shall take precedence and prevail over the earlier Judgment
and Order dated 28.09.2015 in Sessions Case No. 207 of 2011 passed by the
learned Addl.Sessions Judge (FTC), Barpeta."
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7. The matter was thus remanded back to the learned Trial Court for taking
of additional evidence, in terms of the judgment and order dated 24.07.2019
passed in Criminal Appeal No.17/2016.
8. The learned Trial Court thereafter reconsidered the case of the appellants
afresh and passed it's judgment dated 05.06.2024, after recording the fact that
the learned Public Prosecutor had declined to produce further evidence. Also,
the learned Defence Counsel had also submitted that there was no necessity to
adduce further evidence from the side of the accused persons, with regard to
the 'last seen together theory' as required under Section 106 of the Evidence
Act, as no additional evidence had been adduced by the Prosecution.
9. Paragraph Nos.7 and 50 of the judgment dated 05.06.2024 passed by this
Court in Sessions Case No.207/2011 is reproduced hereinbelow, as follows :
"7. The learned PP had declined to produce further evidence and
submitted before this court that the burden lies upon the accused to
establish their defence against the last seen together theory and U/S 106
of Evidence Act as directed by the Hon'ble Gauhati High court. The
learned defence counsel had also submitted that since no further witness
has been produced by the prosecution therefore there is no necessity to
adduce evidence from the side of the accused on the points referred nor
the accused persons are willing to advance evidence against the last seen
theory and U/S 106 of Evidence Act.
50. The evidence of PW-11 that the accused Jasmat, Muktar and Jiaul
taking Almas to the house of accused Abdul Aziz left unrebutted. In the
judgment passed by the Hon'ble Gauhati High Court in Criminal Appeal
17/16 arising out of the judgment of acquittal of the accused persons of
this case it was held that Jasmat, Muktar and Jiaul came to the house of
PW-11 and took Almas with them. Therefore, this last seen together
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theory is applicable here. It was also directed to that the said accused
persons to advance explanation that what happened thereafter. But the
accused persons did not advance any explanation."
10. The learned Trial Court thereafter came to a finding that as the appellants
Abdul Aziz and Jasmat did not advance any explanation with regard to the 'last
seen together theory', the 'last seen together theory' was applicable to the facts
of this case, without any additional evidence being recorded by the learned Trial
Court.
11. The learned Senior Counsel for the appellants submits that when this
Court had remanded the case back to the learned Trial Court for taking
additional/fresh evidence, so that the learned Trial Court could come to a proper
finding as to whether the appellants were guilty/not guilty of the charge under
Section 147/302 IPC. The learned Trial Court could not have come to a different
finding by way of the impugned judgment, when no additional evidence was
adduced. He thus submits that the learned Trial Court could not have reviewed
it's own decision, passed vide the earlier judgment dated 28.09.2015, in the
absence of any additional/fresh evidence, in terms of Section 362 Cr.P.C.
12. List the matter tomorrow i.e. 20.08.2025 as part heard.
JUDGE JUDGE
Comparing Assistant
