The State Of Assam vs Ashik Ali
2025 Latest Caselaw 3104 Gua

Gauhati High Court

The State Of Assam vs Ashik Ali on 13 February, 2025

Author: Sk Medhi

Bench: Sanjay Kumar Medhi

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GAHC010107792010




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

                          Case No. : Crl.A./203/2010

         THE STATE OF ASSAM




         VERSUS

         ASHIK ALI
         S/O ANAR ALI, R/O VILL. ROUTHGRAM, P.O. KALIGANJ BAZAR, P.S.
         KALIANJ, DIST. KARIMGANJ, ASSAM.

         2:BOLAI MIA @ MONAI MIA

          S/O LATE INTAZ ALI
          VILL. KALINAGAR
          DIST. KARIMGANJ

         3:MOIN UDDIN

          S/O KUTI MUSTAKIN ALI
          VILL. KALINAGAR PART-V
          KATAKHAL
          P.S. ALGAPUR
          DIST. HAILAKANDI

         4:ABDUL MALIK

          S/O LT. JAMIR ALI
          VILL. ALANGJURI
          P.O. SILCHAR ROAD
          SARISHA
          P.S. and DIST. KARIMGANJ
                                                                                  Page No.# 2/13


Advocate for the Petitioner   : PP, ASSAM,

Advocate for the Respondent : MR.M K HUSSAIN, MR.A M MAZUMDAR,MR.A

CHOUDHURY,MR.F K R AHMED

BEFORE HON'BLE MR. JUSTICE SANJAY KUMAR MEDHI HON'BLE MR. JUSTICE KAKHETO SEMA

For the Appellant : Ms. B Bhuyan, Sr. Advocate & Addl. PP, Assam.

       For the Respondents          :   Shri A Choudhury, Advocate.


       Dates of Hearing         :       20.01.2025 & 21.01.2025.


       Date of Judgment         :       13.02.2025.


(SK Medhi, J.)
                                        JUDGMENT & ORDER

The instant appeal has been preferred by the State against the judgment dated 17.04.2008 passed by the learned Addl. Sessions Judge (FTC), Karimganj in Sessions Case No. 72/2006. By the same judgment, the respondents-accused have been acquitted.

2. The criminal law was set into motion by lodging of an Ejahar by one Muminur Rahman (PW3) on 01.04.1998, at 7.40 am. It has been stated that on the previous night of 31.03.1998 between 2 to 2.30 a.m., some dacoits attacked their house and took away gold ornaments and cash. The dacoits had also shot in the leg of the cousin Page No.# 3/13

of the informant Akaddas and had also shot his uncle Muhammad Ali resulting in his death. The informant had, however stated that he could not identify any one of them.

3. Based on the said Ejahar, the formal FIR was lodged and investigation began. After the investigation, charge sheet was laid against five accused persons. However, one accused person had absconded and therefore, the trial had proceeded against four nos. of accused persons.

4. PW1 is the cousin of the informant who had called for the police. He had submitted that his father Mohamad Ali was shot dead by the dacoits and his cousin Akaddas was also shot in the leg. He had deposed that in the Test Identification Parade (hereinafter referred to as TIP), he could identify three nos. of accused persons, out of which, Ashik and Main Uddin were also identified in the dock.

5. PW2 is Makaddas Ali who is the cousin of the informant. He had also deposed that in the TIP held, he could identify four out of five of the assailants who were also identified in the dock.

6. PW3 is the informant who had also identified the accused persons in the TIP.

7. PW4 Akaddas Ali is the cousin of the informant. He had stated that during the attack, he could identify Abdul Malik as one of the assailants. He had stated that there were three residential houses in the compound which were the subject matter of the attack by the dacoits.

8. PW5 Sajjad Ali is also a cousin of the informant. He had stated that on hearing the commotion, he had first ran to the nearby BSF camp and thereafter to the police camp. He had also identified the accused persons in the TIP.

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9. PW6 is the Doctor who had conducted post-mortem on Mohamad Ali. In his opinion, the death was a result of the firearm injuries which were ante-mortem in nature. The post-mortem report was proved as Exhibit-4.

10. PW7 is the Doctor who had examined Akaddas (PW4). He deposed that Akaddas had sustained gunshot injury on his left leg. The report submitted by him on such injury was proved as Exhibit-5.

11. PW8 is the Judicial Magistrate 1 st Class who had conducted the TIP. He had submitted that two TIPs were conducted, one on 03.08.1998 and the second on 12.08.1998. Both the TIP reports were proved as Exhibits-6 and 7.

12. PW9 is the Sub-Inspector of Police who had done further investigation. He had also deposed that S.I. BK Das had investigated the case earlier. He had also deposed about the TIP.

13. After the prosecution evidence was complete, the incriminating circumstances against the accused persons were put to them in their examination under Section 313 of the Cr.PC wherein they had denied the circumstances against them.

14. After consideration of the materials on record, including the evidence of the prosecution witnesses, the learned Court of the Addl. Sessions Judge (FTC) by the impugned judgment 17.04.2008 had acquitted the accused persons. Being aggrieved by the aforesaid decision, the instant appeal has been preferred by the State.

15. We have heard Ms. B Bhuyan, learned Addl. PP, Assam for the appellant-State. We have also heard Shri A Choudhury, learned counsel for the respondent.

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16. Ms. Bhuyan, the learned APP has submitted that the materials before the learned Trial Court were sufficient to come to a conclusion of guilt of the accused persons and there was no reason as to how any benefit of doubt could have been given to the accused persons. She has submitted that a group of dacoits consisting of the accused persons had attacked the houses of the victims who were living in one compound consisting of four houses. She has submitted that the PW4 who had sustained bullet injury on his leg, had also identified one of the accused, namely, Abdul Malik during the attack. She has submitted that for the purpose of identification, two TIPs were held respectively, on 03.08.1998 and 12.08.1998 and the TIP charts were proved as Exhibits-6 and 7. In these said TIPs, the PW1, PW2, PW3 and PW5 had identified the accused persons. She has submitted that the second TIP had to be conducted so as to give PW4 a chance to participate and identify as in the first TIP held on 03.08.1998, PW4 could not attend as he was undergoing treatment from the bullet injury suffered in the said attack. However, even in the second TIP, PW4 Akaddas Ali could not come as he was still not in a position to attend.

17. She has contended that so far as the death of Mohamad Ali is concerned, the medical evidence, namely, the post-mortem report proved as Exhibit- 4 would corroborate with the deposition of the prosecution witnesses, more particularly, with the nature of the assault and injuries. She submits that the post-mortem report clearly states that the death was as a result of firearm injuries which were ante-mortem in nature. She has submitted that except accused Abdul Malik, the rest of the accused persons were from different villages and therefore, the aspect of identifying them on the time of the occurrence may not arise. However, the accused persons were duly identified in the TIP by all the aforesaid prosecution witnesses. She has also submitted that there is nothing on record to show that there was any previous enmity of the informant or the prosecution witnesses with the accused persons so as to falsely Page No.# 6/13

implicate them.

18. The learned APP submits that the materials on record were sufficient to convict the accused persons and the offense involved is very serious in nature where one person has lost his life, one has sustained serious firearm injury on his leg and gold ornaments and cash were looted. She accordingly submits that the impugned judgment is liable to be interfered with and the accused persons are required to be held guilty and convicted in accordance with law.

19. Per contra, Sri Choudhury, the learned counsel for the accused persons has submitted that in the FIR, the informant-PW3 had clearly stated that he could not identify any of the assailants and therefore, it is very much possible that in the TIP, the so-called identification was not free from any tutoring. He has also highlighted the aspect that the deposition of PW2 is contrary to the deposition of PW1. He has submitted that PW1, in his deposition did not say anything that PW4 was beaten by accused Abdul Malik and others. Coming to the deposition of PW2, the learned counsel has reiterated that there was no mention in his deposition about the presence of accused Abdul Malik.

20. On the aspect of the TIP, the learned counsel for the respondents has submitted that there is a long and inordinate gap in holding the TIP. He has submitted that the date of incident was 01.04.1998 and the first TIP was held on 03.08.1998 and the second TIP on 12.08.1998 and there is no acceptable explanation for the said delay.

21. He has also submitted that from the materials available, there would be two views possible and if one view is in favour of the accused persons, the said view is required to be taken in a criminal trial. He has also highlighted that the prosecution did not make any effort to bring any independent witnesses. He has hastened in Page No.# 7/13

contending that that all the prosecution witnesses, except the official witnesses were interested witnesses as they were related to the deceased as well as injured person.

22. On the aspect of delay in holding the TIP, the learned counsel for the accused has relied upon the case of Rajesh Govind Jagesha Vs. State of Maharashtra , reported in (1999) 8 SCC 428. In the said case, unexplained delay in holding the TIP was taken to be a ground to give benefit of doubt. He has also submitted that the findings of a TIP were not wholly reliable and in this regard, he has relied upon the case of Mullagiri Vajram & Ors. Vs. State of AP , reported in AIR 1993 SC 1243. In the said case, it has been laid down that in case an eyewitness is there who had previously known the accused, TIP is not wholly relevant. He has made this submission on the aspect that PW4 had allegedly identified one of the accused persons, Abdul Malik.

23. He has also submitted that the delay in TIP would raise an adverse inference against the prosecution case. He submits that an inference may be drawn that the witnesses had the scope to have a look at the accused persons before the TIP and therefore, the identification could be made. He has submitted that there is no specific allegation made against the accused persons in their individual capacity and therefore, no conviction could have been made.

24. He has relied upon the judgment of Allahabad High Court in the case of State of UP Vs. Bachchan Khan , reported in (2022) 0 Sup (All) 557 in which the said High Court had referred to the case of the Hon'ble Supreme Court in Chandrappa & Ors. Vs. State of Karnataka , reported in (2007) 4 SCC 415 in which, the following was laid down:

"42. From the above decisions, in our considered view, the following general Page No.# 8/13

principles regarding powers of the appellate Court while dealing with an appeal against an order of acquittal emerge:

[1] An appellate Court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded.

[2] The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law.

[3] Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtain extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasis the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion.

[4] An appellate Court, however, must bear in mind that in case of acquittal there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent Court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court.

[5] If two reasonable conclusions are possible on the basis of the evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the trial Court."

25. The learned counsel accordingly submits that there are inconsistencies in the prosecution evidence and only one prosecution witness could identify one accused. He has also submitted that the delay in TIP and non-explanation of the delay, including the aspect of adverse inference would justify the learned Trial Court in coming to the Page No.# 9/13

conclusion of not guilty so far as his clients are concerned. He accordingly submits that the appeal is liable to be dismissed.

26. In her rejoinder, the learned APP has referred the case of Daya Singh Vs. State of Haryana, reported in AIR 2001 SC 1188 wherein the aspect of TIP has been clarified. In said case, the TIP though was delayed by 7 to 8 years was taken into consideration as a valid piece of evidence. She has also relied upon the case of Raja Vs. State by the Inspector of Police , reported in AIR 2020 SC 254 wherein it has been stated that delay in holding TIP will depend on the facts and circumstances of the case. In paragraph 19, the following the aspect of having a lasting impression on the mind of the witnesses has been highlighted:

"19. Learned counsel for the State has also relied upon the decision of this Court in Anil Kumar vs. State of U.P., (2003) 3 SCC 569 wherein the test identification parade was held 47 days after the arrest of the appellants. This Court after considering several decisions of this Court including the decisions in Brij Mohan vs. State of Rajasthan, (1994) 1 SCC 413 Daya Singh vs. State of Haryana, (2001) 3 SCC 468 and State of Maharashtra vs. Suresh, (2000) 1 SCC 471 concluded that since the identifying witness was attacked by the assailants including the appellant and another, he had a clear look at the assailants. When his younger brother came to save him, he was killed by the assailants while the witness also received serious injuries. These were circumstances which would have imprinted in the memory of the witness the facial expressions of the assailants and this impression would not diminish or disappear within a period of 47 days. Similar was the case of the father and the mother of the identifying witness who had seen the assailants attacking their sons and one of their sons getting killed. In their memory also the facial expressions of the assailants will get embossed. A mere lapse of 47 days would not erase the facial expressions from their memory."

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27. She has also relied upon the case of State of UP Vs. Mohd. Iqram & Anr. , reported in AIR 2011 SC 2296 on the aspect of proper light at the time of occurrence. The case of Ravi Sharma Vs. State (Govt. of NCT of Delhi) & Anr. , reported in (2022) 8 SC 536 has also been relied upon with regard to the principles which are to be taken into consideration to decide an appeal against acquittal.

28. The rival submissions have been duly considered and the materials on record, including the LCRs have also been carefully examined.

29. In the instant case, it is not in dispute that the Ejahar which was lodged on 01.04.1998 i.e. immediately on the next morning of the occurrence happening on 31.03.1998 at 2-2.30 a.m., none of the accused persons were named. It is seen that the Ejahar was lodged by PW3 and in his deposition also, PW3 did not claim to have identified anyone at the time of occurrence. Juxtaposed PW-4, who is himself an injured witness having suffered gunshot on his left leg, had deposed that he could identify one Abdul Malik at the time of occurrence and rest he could not identify. Except PW4, none of the other witnesses, namely, PWs-1, 2, 3 and 5 had named any person to have been identified at the time of occurrence.

30. In this regard, it would be necessary to examine the addresses of the accused persons. It appears that except accused Abdul Malik who was from the same village as that of the informant, all the other accused persons were from different villages. The occurrence being at 2-2.30 a.m. on 31.03.1998 wherein a group of persons together was involved and they had hurricane lamps in their hands, it cannot be said to be wholly unreasonable when only one of the witnesses claims to have identified one of the accused who happens to be from the same village. It is natural that the other witnesses might not have seen one of the accused in the group who was of the same Page No.# 11/13

village and was known to them.

31. With regard to the submission regarding delay in conducting the TIP, the projection is that while the FIR was registered on 01.04.1998, the TIP was done on 03.08.1998 and 12.09.1998. To examine the said aspect, one has to keep in mind that the delay, per se cannot be held to be absolutely fatal in all cases. In the instant case, the father of PW1, PW2 and PW5 who is also the uncle of PW3 was killed in front of them from close proximity by firearms and it would be natural that the facial expressions of the assailants would have a deep imprint in their minds and these witnesses had identified the accused persons in the TIP. There is another aspect of the matter which this Court has noticed. Though the FIR was lodged on 01.04.1998, the arrest was made much later and the records would reveal that the last arrest was made on 12.07.1998 involving accused Main Uddin and Monai. Therefore, from the said date of last arrest, the delay cannot be said to be inordinate or unexplained. We have also noted that the second TIP was conducted on 12.08.1998 so as to facilitate identification by PW4 as on the earlier date i.e. 03.08.1998, he was under treatment. However, even on the date fixed i.e. 12.08.1998, he could not come as he was still ailing. As mentioned above, PW4 had himself suffered gunshot injury on his left leg and was examined by the Doctor (PW7) and the Report is proved as Exhibit-5.

32. On the aspect of the TIP, the TIP charts were duly proved by the Judicial

Magistrate 1st Class (PW8) as Exhibits-6 and 7. This Court has noted that the learned Magistrate had taken meticulous care in conducting the TIP. It has been stated that the accused suspects were kept and lined up mixed with 30 UTPs of almost similar age, height, dress and general descriptions inside the premises of the District Jail and TIP witnesses were kept outside the jail premises from where they could not get any chance to view the line up. The suspects were given their choice to take the position in the line and each of the witnesses were called separately after which they were Page No.# 12/13

taken away from the location. Before another witness was called, the line up was broken on its turn and the accused/suspects were asked to take position of their choice and after every turn, the witnesses were kept inside the jail so that they cannot communicate the identification to the subsequent witness. The identification was also definite and the same was done by touching the accused persons.

33. From the above, it appears that due care and caution was taken in the procedure involved for the TIP wherein all available safeguards were given to the accused persons. The procedure of TIP is essentially a part of the investigation and would be relevant under Section 9 of the Indian Evidence Act and the prosecution has discharged its burden by proving the same in accordance with law.

34. In the conspectus of the aforesaid discussion and the materials on record, we are of the view that the learned Trial Court erred in law in giving the benefit of doubt to the accused persons. We are of the view that materials on record are sufficient to come to a conclusion that the prosecution was able to prove the charges against the respondents accused beyond all reasonable doubts. Accordingly, we interfere with the order of acquittal and convict the accused respondents under Section 396 of the IPC.

35. Accordingly, we direct listing of this appeal for sentence hearing on which date all the accused respondents are to be present personally. The appearance is also allowed to be done virtually which, however, is to be from the Court of the learned Sessions Judge, Karimganj. If the option of virtual appearance is taken, the office of the learned Sessions Judge, Karimganj will facilitate such virtual appearance on the date fixed.

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36. List this case on 21.02.2025 at 10.30 a.m.

JUDGE

Comparing Assistant