Page No.# 1/13 vs The State Of Assam
2025 Latest Caselaw 3473 Gua

Gauhati High Court

Page No.# 1/13 vs The State Of Assam on 25 February, 2025

                                                                       Page No.# 1/13

GAHC010012452013




                                                                  2025:GAU-AS:2128

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

                              Case No. : Crl.Rev.P./428/2013

            AZIZUL ISLAM @ AZIZUL HOQUE and 2 ORS.
            S/O ANSAR UDDIN

            2: MD. FAKRUL ISLAM
             S/O ANSAR UDDIN

            3: AZI UDDIN
             S/O ABDUL HALIM
            ALL ARE VILL. BURANGA PART-III
             P.S. KATIGORAH
             DIST- CACHAR
            ASSA

            VERSUS

            THE STATE OF ASSAM
            -

Advocate for the Petitioner : MR.R DEV, MR. N DEKA, AMICUS CURIAE,MR.R DHAR,MS.R RONGMAI

Advocate for the Respondent : , PP, ASSAM, Page No.# 2/13

BEFORE

HON'BLE MR JUSTICE ARUN DEV CHOUDHURY

For the Petitioner : Mr. N. Deka, Amicus Curiae.

For the Respondent : Mr. K. Baishya, Public Prosecutor.

      Date of Hearing                    : 07.01.2025


      Date of Judgment                  : 25.02.2025



                             JUDGMENT AND ORDER (CAV)

1. Heard Mr. N. Deka, learned Amicus Curiae for the petitioners and Mr. K. Baishya, learned Additional Public Prosecutor, Assam for the sole respondent/opposite party.

2. The present criminal revision petition under Section 397 of the Code of Criminal Procedure, 1973 has been filed assailing judgment and order dated 08.07.2011 passed by the learned Sub-Divisional Judicial Magistrate (Sadar), Cachar, Silchar in G.R. Case No. 3406/2003, whereby the petitioners were convicted under Section 341/323/326/34 IPC and were sentenced to undergo Simple Imprisonment (SI) for 1 (one) month for the offences punishable under Sections 341/34 IPC, to undergo SI for 3 (three) months for the offence punishable under Sections 323/34 IPC and also 6 (six) months RI under Section 326/34 IPC and to pay a fine of Rs. 1,000/- (one thousand only) each and in default of payment of fine to undergo SI for 2 (two) months.

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3. Further challenge is against the appellate judgment and order dated 19.09.2013 passed by the learned Additional Sessions Judge, (F.T.C.), Cachar, Silchar in Criminal Appeal No. 21/2011, whereby the aforesaid judgment and order dated 08.07.2011 passed by the trial court was upheld in the appeal preferred by the appellants.

4. As none represented the petitioners, when the matter was called for hearing, this court appointed Mr. N Deka, learned counsel, to represent the petitioners and the matter was again fixed for hearing. However, during the course of hearing also, none represented the petitioners except the Amicus. Accordingly, the Court proceeded with the hearing inasmuch as this revision is pending since the year 2013.

5. Before dealing with the arguments of the learned counsel for the parties, let this court first record the prosecution case. The prosecution case, in a nutshell, is that on 12.12.2003 at about 09:30 am, victim Abdul Rashid Laskar (PW-2) while taking his daughter Rushna Begum (PW-3) to the house of her fathers-in-law, the accused persons, due to previous a grudge, armed with weapons, forcefully tried to take away Rushna Begum into their house, to which Abdul Rashid objected and resisted and on being resisted, the accused persons assaulted said Abdul Rashid and caused grievous injuries throughout his body. It is the further prosecution case that while Rushna Begum tried to save her father, the accused persons also assaulted her and forcefully took away her golden necklace of 1 ½ bhori, clothes and cash amount of Rs. 500/- from the brief case. On raising alarm 'Bachao', 'Bachao', by Rushna, nearby people rescued them from the accused and otherwise the accused might have killed them.

6. Alleging the aforesaid fact, an FIR was lodged before the Bihara Police Out-Post and accordingly, GD Entry was made and the same was forwarded to the Officer- In-Charge of Katigorah Police Station, which was registered as Katigorah P.S. Page No.# 4/13

Case No. 491/2003. The F.I.R. was lodged by PW-1, who was working in the nearby paddy field and reached the place of occurrence after hearing alarm raised by PW-3

7. After completion of the investigation, charge-sheet was laid under Sections 341/323/325/326/379/34 IPC against the accused persons. The learned Trial Judge after going through the materials on record framed charges under Sections 341/323/325/326/ 379/34 IPC and the same was explained and read over to the accused, to which the accused pleaded not guilty and claimed to be tried.

8. During the trial, the prosecution examined as many as six witnesses. The accused persons were also examined under Section 313 Cr.P.C. However, the defence denied to adduce any evidence.

9. Thereafter the learned trial court convicted the petitioners, which was also upheld by the learned appellate court as recorded and detailed hereinabove.

10. Assailing the determination made by the learned courts below, Mr. N Deka, learned Amicus representing the petitioners argues that the entire prosecution is based on interested witnesses, more particularly, the evidence of PW-1, PW-2, PW-3 and PW-4 who are all related. Therefore, solely on the basis of such related and interested witnesses, the learned courts ought not to have convicted the petitioners, more particularly, when it is an admitted story of the prosecution that the alleged fight occurred due to previous enmity. Referring to the eye witnesses' accounts, namely, PW-1, PW-2 and PW-3, Mr. Deka, learned Amicus argues that though these witnesses deposed that when alarm was raised by PW-3, villagers came to the place of occurrence and rescued the victim, however, the prosecution has not examined any of such persons/villagers, who could have disclosed the actual fact. Withdrawal of such vital witness from examination by the prosecution itself creates a doubt and dent in the prosecution story, argues Page No.# 5/13

Mr. Deka, learned Amicus. According to him, in the given facts of the present case, non-examination of such material witness shall be fatal to the prosecution case.

11. Referring to the testimonies of the eye witnesses projected by the prosecution i.e. PW-1, PW-2, PW-3 and PW-4, Mr. Deka, learned Amicus asserts that there are different versions of each of the aforesaid witnesses as regards the individual role of the petitioners in commission of the offence creating serious doubt in the prosecution story inasmuch as their testimonies are having material contradiction creating a severe dent in the prosecution story. In support of his contention, Mr. Deka, learned Amicus places reliance on the decision of the Hon'ble Apex court in Md. Jabbar Ali and Ors. Vs state of Assam reported in (2022) LiveLaw SC

856.

12. Per contra, Mr. Baishya, learned Additional Public Prosecutor argues that the determination made by both the courts is based on proper appreciation of evidence and the conclusion arrived at based on the prosecution evidence cannot be termed as a perverse decision to warrant interference in the hands of this court in the exercise of its revisoinal power. Mr. Baishya, learned Additional Public Prosecutor, further contends that not only the testimonies of two injured eye witnesses remained unshaken but also their testimonies were duly corroborated by the other two eye witnesses i.e. PW-1 and PW-4 beyond the corroboration of the injury by the PW-5 Doctor, who examined these injured witnesses. Mr. Baishya, learned Additional Public Prosecutor contends that evidence of an injured eye witness has great evidentiary value and there were no compelling reasons, in this case, to discard their statements only for the reason that they are relatives. Accordingly, Mr. Baishya, learned Additional Public Prosecutor contends that the present petition is liable to be dismissed.

13. I have given anxious consideration to the submissions advanced by the learned Page No.# 6/13

counsels for the parties. Perused the materials available on record.

14. The star witnesses for the prosecutions are PW-1 the informant cum an eye witness, the PW-2 an injured victim, PW-3 another victim, PW-4 another eye witness and PW-5 the doctor, who examined the injured witnesses. PW-6 is the investigating officer of the case.

15. As the learned amicus representing the petitioners has made a serious argument that the story depicted by each of the eye witnesses is different, which created a dent in the prosecution story, this court has perused the testimonies of these witnesses. Their testimonies can be summarized in the following manner:-

I. As per the version of the PW1, on the fateful day i.e. on 12.12.2003 while he was working in the paddy field hearing alarm raised by PW-2 and PW-3, he rushed to the place of occurrence and saw accused Azizul, Fokrul and Azi Uddin assaulting PW-2. According to this witness, Azizul was armed with a spade. Fokrul and Azi Uddin were armed with bamboo stick. Azizul had given a blow in the head of PW-2. Fokrul assaulted with bamboo stick on different part of the body of Abdul Rashid and Fokrul also assaulted Abdul Rashid with lathi. Azizul and Fokrul also assaulted PW-3. PW-2 sustained fracture injury on his hand and head and some other injuries on other parts of the body. PW-1 took Abdul Rashid to Police Outpost and from where he was forwarded to hospital for treatment. Some other villagers who reached the place of occurrence also accompanied him along with the injured to the police station.

II. As per version of PW-2, Azizul was armed with spade. Fokrul and Azi Uddin were armed with lathi. Azizul had given blow with a spade on his head, which he saved with his hand and he sustained injury in his hand. Fokrul and Azi Uddun assaulted him with lathi on different parts of his Page No.# 7/13

body.

III. As per version of PW-3, Azizul put a Gamosha in her throat, kicked on her chest, snatched away the golden nacklace. Fokrul and Azi Uddin assaulted her. While her father, PW-1 tried to save her, he sustained fracture injury on his hand. Fokrul assaulted her father with lathi and caused injury.

IV. As per version of PW-4, while she was accompanying PW-2 (her father) and PW-3 (her sister), Azizul put a Gamosha on neck of the PW-3. When PW-2 resisted, then Azizul had given him a blow with spade on the head. While her father tried to save, he got fracture injury on his right hand and head. Fokrul and Azi Uddin assaulted her father with stick. Azizul snatched away cash amount of Rs. 500/-.

V. As per version of PW-5, on 12.12.2003, while he was performing his duty at the Kalain CHC, the two injured victim were produced before him by police. He examined both the PW-2 and PW-3. In case of PW-3, he found abrasion on right shoulder joint, contusion on forehead and lacerated wound on frontal region. On examination of PW-2, Abdul Rashid, he found fracture on radius bone, one sharp cut wound on occipital region, lacerated wound on left parietal bone, lacerated wound on forehead and soft tissue injury on right leg. The PW-3 was treated in the Kalain CHC from 12.12.2003 to 22.12.2003. In his opinion, the injuries were caused by sharp and blunt weapon and grievous in nature. The defence did not dispute such injury and report, however suggested that such kind of injury can occur from falling.

16. Now coming to the arguments of Mr. Deka, learned Amicus Curiae as regards the related witnesses, this Court is having no doubt in mind that the prosecution Page No.# 8/13

has been able to establish beyond reasonable doubt as regards occurrence of the incident on 12.12.2003 at around 09.30 AM in a village road near the paddy field while the PW-2, PW-3 and PW-4 were walking on the village road. The prosecution has also been able to establish beyond reasonable doubt that PW-2 and PW-3 sustained injuries and their injuries were also duly corroborated by the prosecution through the evidence of the Doctor i.e. PW-5. The informant is PW-1. There is no material even to remotely suggest that PW-1 is having any connection with the accused victim and/or he is related to these victims or he has any interest in conviction of the accused petitioners. His testimonies that he reached the place of occurrence after hearing hue and cry and witnessed the incident, remain unshaken. The defence has not even remotely suggested or doubted that he was not present at the place of occurrence. Therefore, the presumption as regards related witnesses that such witness would testify falsely against the accused person, is not available in the present case. In fact, as per the version of the PW-1, he came to the place of occurrence, hearing alarm raised by the PW-3 and reached the place of occurrence and witnessed the assault upon PW-2 and PW-3 by the three accused persons. Such testimony also remained unshaken, though the learned counsel for the petitioner has argued that each of the projected eye witnesses including the injured witnesses testified different role of each of the accused person. Such argument shall be dealt at the later point of this judgment.

17. Now, coming to the argument of interested witnesses, it is true that the three witnesses i.e. PW-2, PW-3 and PW-4 may be treated as interested witnesses as they will have a direct stake in the outcome of the action and they will be interested in seeing the accused person punished. However, by now, it is equally well settled that a relationship cannot be used to invalidate an interested witnesses' claim, if they are backed by appropriate evidence. It is equally true that the testimony of such witnesses cannot be straightway disregarded however, Page No.# 9/13

analyzing testimony of such witnesses, the Court may insist on substantial corroboration and the Court may use prudence. The court is required thoroughly analyze such witness's testimony and if there is any doubt about their credibility, the court has authority to discard their testimony.

18. Now coming to the case in hand, the testimony of PW-2, the injured victim remains unshaken that the accused person first started assaulting PW-3 and when PW-2 resisted, he was attacked by this accused persons. The testimony of PW-3 and PW-4 also lends support to such evidence. According to them also, first attack was upon PW-3 and when PW-2 resisted, then he was attacked. The learned trial court has duly appreciated the testimonies of such witnesses, and also placed reliance on the corroborative evidence of PW-1, the informant cum eye witness and also upon the evidence of PW-5, the Doctor, who examined the injured immediately after the injury and during the trial duly proved the injury report inasmuch as his testimony also remained firm. Therefore, it cannot be said that the learned trial Court had solely relied on the testimonies of these three witnesses i.e. PW-2, PW 3 and PW 4, who according to the learned counsel for the appellant are related and interested witnesses. The learned trial Court duly considered the testimonies of two other vital witnesses i.e. informant who was an independent witness and the Doctor who is also an independent witness.

19. Now coming to the description and the attribution of the individual role of these accused persons in commission of the offence, PW-1, PW-2, PW-3 and PW-4 unequivocally testified that accused Azizul was armed with a spade, Fokrul and Azi Uddin were armed with lathi. Azizul gave a blow in the head of PW-2, which PW-2 saved with his hand and got his hand fractured. Similar is the narration of PW-3 and PW-4. All these three witnesses testified that the other two accused Fokrul and Azi Uddin assaulted PW-2 with lathi in different parts of his body. PW- 2, PW-3 and PW-4 testified that the initial attack was upon PW-3 by Azizul, who Page No.# 10/13

put a Gamosha in her neck and then PW-1 resisted, and PW-3 raised hue and cry and then PW-1 reached the place of occurrence. Thus, if we give a deeper scrutiny to the testimonies, there may be some discrepancies whether the spade hit the head or hand, in the considered opinion of this court, such discrepancy shall not be fatal to the prosecution case inasmuch as it was established beyond reasonable doubt that these three accused assaulted PW-2 and PW-3 on 12.12.2003 near the village road which was witnessed by PW-1 and PW-4. The PW-5 also corroborated that he examined the victim when he was posted at Kalain C.H.C. as I/C and he had also detailed the injury in his testimony, which includes multiple injuries as recorded hereinabove.

20. Another aspect of the matter is that the accused has been convicted together with the aid of Section 34 of IPC inasmuch as the prosecution through the evidence of PW-1, PW-2, PW-3 and PW-4, has been able to establish the joint liability of these three accused persons and therefore, some discrepancies as regards individual action/ role of these accused persons shall not be fatal to the prosecution case.

21. Now coming to the argument of Mr. Deka, as regards non examination of vital witness, it is true that PW-1 deposed that hearing the alarm raised, some other people like Zamaluddin, Safiqur Rahman, Nurul Haque etc. reached the place of occurrence and the PW-1 along with some other villagers took the PW-2 to the police station, however, none of the villagers, who were present there except PW- 1 were examined. It is true that in certain circumstances withdrawal of vital witnesses may be fatal to the prosecution case, more particularly when the examination of such witness becomes very vital to lend assistance to other witnesses the prosecution has adduced. That apart, it is well settled that the case of prosecution cannot be rejected solely on the ground that some important witnesses were left out and have not been examined, when on perusal of Page No.# 11/13

evidence on record, the court finds that the case put forth by the prosecution is trustworthy and that through the available witness, the prosecution has been able to establish the guilt of the accused beyond reasonable doubt.

22. Yet another vital aspect in the present case is that the two of the eye witnesses themselves are injured witnesses. It is well settled that evidence of an injured eye witness has great evidentiary value, and unless compelling reason exists, their statements are not to be discarded rightly. This court after close scrutiny of the testimony of the injured victim, did not find anything to discard their testimony and to insist upon corroboration by other independent witnesses, beyond PW-1, who was also an independent witness. The fact also remains that the testimonies of the two witnesses PW-2 and PW-3 as regards the nature of the injury sustained by them had duly been corroborated by the prosecution through the testimony of PW-5, Doctor. Therefore, in the given facts of the present case, neither it can be said that there was no independent witness nor non examination of other villagers, who were present at the place of occurrence, shall be fatal to the prosecution case, more particularly, for the reason of availability of trustworthy and reliable evidences in this regard in the shape of PW1, PW2, PW3, PW4 and PW5.

23. Law is well settled that the object of revisional power of this Court under Sections 397/401 CrPC is to set right a patent defect or an error of jurisdiction or of law. Such power can be exercised where the decisions under challenge are grossly erroneous, there is non-compliance of provisions of law, the finding recorded is either based on no evidence or the material evidence is ignored or judicial discretion is exercised arbitrarily or perversely. It is equally well settled that the revisional jurisdiction of a High Court should not be exercised in a routine manner.

24. The Hon'ble Apex Court in the case of Chandra Babu Vs State reported in Page No.# 12/13

2015 (8) SCC 774 held that normally revisional jurisdiction should be exercised in a question of law. However, when factual appreciation is involved, then it should be exercised in the class or the classes of cases resulting in a perverse finding.

25. Coming to the case in hand, this court after meticulous examination of the judgment impugned and other material available on record, cannot say that the decisions under challenge are grossly erroneous or that there is non-compliance of provisions of law or that the finding recorded is either based on no evidence or the material evidence had been ignored. Therefore, in the opinion of this Court, this is not a fit case to exercise this court's revisional jurisdiction to interfere with the impugned judgments, which are reasonable and based on proper appreciation of evidence.

26. Accordingly, for the reasons recorded hereinabove, this Court finds no merit in the present criminal petition. Accordingly, the same stands dismissed. The judgment and order dated 19.09.2013 passed by the learned Additional Sessions Judge, (F.T.C.), Cachar, Silchar in Criminal Appeal No. 21/2011 upholding the judgment and order dated 08.07.2011 passed by the learned Sub-Divisional Judicial Magistrate (Sadar), Cachar, Silchar in G.R. Case No. 3406/2003 is upheld.

27. The learned trial Judge shall do the needful for execution of the judgment and sentence dated 08.07.2011 passed by the learned Sub-Divisional Judicial Magistrate (Sadar), Cachar, Silchar in G.R. Case No. 3406/2003.

28. Registry to communicate this order to the learned Trial Court. LCR be returned back.

29. While parting with the record, this Court puts on record its appreciation as regards able assistance rendered by Mr. N Deka, learned Amicus Curiae. Accordingly, Registry shall ensure that Mr. Deka, learned Amicus Curiae be paid Page No.# 13/13

the legal fee, as payable to a Legal Aid Counsel as per the existing norms fixed by the Legal Services Authority.

JUDGE

Comparing Assistant