Page No.# 1/9 vs The State Of Assam
2025 Latest Caselaw 3930 Gua

Gauhati High Court

Page No.# 1/9 vs The State Of Assam on 10 March, 2025

                                                                        Page No.# 1/9

GAHC010012902013




                                                                  2025:GAU-AS:2484

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

                                 Case No. : Crl.Rev.P./456/2013

            JUGNU TANTI
            S/O SRI JAGAT TANTI R/O BETJAN URIA LINE UNDER MAKUM P.S. IN THE
            DIST. OF TINSUKIA, ASSAM.



            VERSUS

            THE STATE OF ASSAM




Advocate for the Petitioner   : MR.D TALUKDAR, MR. K SAIKIA,MR.P CHOUDHURY

Advocate for the Respondent : PP, ASSAM, ,




             Linked Case : Crl.Rev.P./457/2013

            ABU TANTI and 3 ORS.
            S/O LT. DHANPATI TANTI

            2: SRI MOTU TANTI
            S/O SRI JITKU TANTI BOTH ARE R/O BETJAN TEA ESTATE.

            3: SRI PABITRA GOHAIN
            S/O SRI RONGESWAR GOHAIN

            4: SRI TILESWAR CHETIA @ MORAN
            S/O SRI LIBESWAR CHETIA BOTH ARE R/O DIGHAL HAKU ALL ARE UNDER
                                                                      Page No.# 2/9

           MAKUM P.S. IN THE DIST. OF TINSUKIA
           ASSAM.
           VERSUS

           THE STATE OF ASSAM



           ------------

Advocate for : MR. K SAIKIA Advocate for : appearing for THE STATE OF ASSAM

BEFORE HONOURABLE MR. JUSTICE ARUN DEV CHOUDHURY

JUDGMENT & ORDER (CAV)

Date : 10-03-2025

1. Heard Mr. D Talukdar, learned counsel for the petitioners. Also heard Mr. P Borthakur, learned Addl. PP, Assam.

2. These two criminal revision petitions are taken up together filed under Section 401 read with Section 397 Cr.P.C. by two accused/convicts assailing the judgment and order dated 13.06.2013, passed by the learned Assistant Sessions Judge, Tinsukia, whereby, the petitioners were convicted under Sections 341/325/34 IPC and were sentenced to undergo RI for three months under Sections 341/34 IPC, RI for a period of six months under and to pay a fine of Rs.1,000/- under section 325/34 IPC and in default of fine, to undergo simple imprisonment for another three months. Both the sentences were to run concurrently.

3. The further challenge made is the decision of the appellate court dated 17.10.2013 passed in 32(3)/2013 & 33(3)/2013.

Page No.# 3/9

4. Though the accused preferred two independent criminal appeals, and such appeals were also dismissed, however, taking note of the fact that the trial was a common trial and the judgment of the trial court is also a common judgment, these two revisions were taken up together as recorded hereinabove.

5. The prosecution case in brief is that on 12.05.2009 at around 09.00 AM while the informant Sri Binanda Kumar Gogoi, Deputy Manager of Betjan Tea Estate, along with Sri Santanu Phukan, Assistant Manager and Bistu Tanti, Labour Sardar were inspecting the workers at Section 8-B, all of a sudden, the accused persons attacked them with fist, blow with lathies and sharp weapons. Accordingly, Makum PS Case No.45/2009 under Sections 341/325/307/34 IPC was registered. Subsequently, charge sheet was filed against the two petitioners under sections 341/325/307/34 IPC and Section 307 IPC being exclusively triable by the learned Court of Sessions, the committal Court committed the case to the Court of learned Sessions Judge, Tinsukia for trial and thereafter, the said case record was transferred to the learned Assistant District Judge, Tinsukia by the learned Sessions Judge, Tinsukia.

6. Accordingly, charges were framed under Section 341/325/307/34 IPC and offences were read over and explained to the accused persons to which they pleaded not guilty and claimed to be tried. Accordingly the trial proceeded.

7. To prove the case, the prosecution examined as many as 8 (eight) witnesses including the Medical Officer, the injured witnesses, some other eye witnesses and the Investigating Officer. The accused were examined under Section 313 Cr.P.C and the defence did not adduce any evidence though their plea was total denial.

Page No.# 4/9

8. After appreciation of the evidence, the learned trial Court convicted and sentenced the petitioners as recorded hereinabove and acquitted them from the charges under Section 307 IPC. Being aggrieved, the connected appeals as recorded hereinabove were preferred, however, the appeals also met with the same fate of dismissal and accordingly, the present revision petitions are filed.

9. Mr. Talukdar, learned counsel for the petitioners has urged that from the evidence of the injured witnesses as well as the projected eye witnesses, it is not disclosed any overt act of the individual petitioners to convict them under Sections 325/341 IPC with the aid of section 34 IPC, inasmuch as according to Mr. Talukdar, learned counsel in absence of such material, both the Courts below could not have convicted the petitioners and therefore, both the learned Courts below had committed patent error of law and illegality.

10. Mr. Talukdar, learned counsel for the petitioners further contends that the presence of the accused petitioners in the place of occurrence even was not established. The accused were neither identified by the victims/witnesses during the course of their trial nor any of the witnesses including the injured witnesses had taken the name of the accused petitioners during their evidence in chief. According to him, even the testimony of the Doctor does not support the nature of assault or injury as described by the two victims. The learned counsel further contends that none of the independent eye witnesses projected by the prosecution support the case of the prosecution. Therefore, according to him, the prosecution had failed to prove the case beyond reasonable doubt.

11. Par contra, Mr. Borthakur, learned Addl. PP submits that the learned trial Court had not committed any error or defect while convicting the petitioners not to say any patent defect or error of law. According to Mr. Page No.# 5/9

Borthakur, the injured eye-witnesses' testimonies as regards the attack by these accused persons and the injuries inflicted remained firm. Such testimony was corroborated by the eye witness Bishtu Tanti (PW-5) and the doctor's evidence further corroborates the injury and therefore, in the aforesaid backdrop and availability of evidence, this Court in exercise of its revisional power may not like to disturb the concurrent finding of fact.

12. I have heard the learned counsel for the parties. Perused the materials available on record.

13. PW-1, Sri Binanda Kumar Gogoi, is the injured victim, Deputy Manager, Betjan Tea Estate. In his evidence, he stated that on 12.05.2009 at about 09:30 A.M., while he along with Assistant Manager Sri Santanu Phukan (PW-2, another injured witness) and Labour Sardar Bistu Tanti (Projected eye witness) were coming out from Section 8 of Betjan Tea Estate, the accused persons came with two motor cycles & two bi-cycles and assaulted them with dao, lathi etc. They accused had snatched away their mobile phones. They had also snatched away the key of the garden bike. Due to assault, PW-1 sustained injury on his hands and back of the body. The Assistant Manager Sri Santanu Phukan (PW-2) had also sustained injury of his head, hand and back of his body. This witness testified that hearing his hue and cry, some garden workers came to the place of occurrence and the accused left the place.

14. PW-2, Sri Santanu Phukan testified that he is the Assistant Manager of Betjan Tea Estate. During his evidence, he said that on that relevant point of time, he along with the informant went to supervise Section 8 of Betjan Tea Estate. Suddenly, the accused persons came with motor-cycles and bi-cycles and assaulted them by lathi, dao etc. causing injuries to them. Due to assault, he sustained injuries on his head, hands and back of the body. Hearing halla, Page No.# 6/9

some workers came and then the accused left the place. The accused had also snatched away their mobile phones and key of their garden bike. Hearing about the occurrence, police came and brought them to Hapjan Block Hospital for treatment.

15. From the testimonies of the PW-1 & PW-2 as recorded hereinabove, individual and/or overt act of each of the accused persons were not disclosed or described by the injured victims nor they were identified in the dock. Even the names of the accused were not taken during their recording of evidence-in- chief.

16. Above that, the witnesses, i.e., PW-3 & PW-4 did not support the case of the prosecution and during the cross-examination, they deposed that one Bistu Tanti (PW-5) a labour Sardar brought PW-3 to give evidence. Such witness was through declared hospital and was cross examined but he remained firmed during cross that he did not see the incident. Similarly, the projected eye-witness i.e., PW-4 deposed that the accused persons were not present in the place of occurrence. Though this witness deposed that he knew the informant and knew two accused persons but he did not recognize the other accused persons. He also deposed that he heard about the incident but when they reached the tea garden, the accused persons were not present in the place of occurrence. He further deposed that he could not say who had assaulted the informant. This witness though was declared hostile but he remained firmed during the cross-examination by the prosecution.

17. The other projected eye-witness, i.e., PW-5, Bistu Tanti though supported the case of the prosecution and deposed that he was present at the place of occurrence, however, his statement is also omnibus to the effect that four of the accused persons came by motor cycle and two others by bicycle and Page No.# 7/9

they started attacking the Manager of the tea garden and others with wooden stick and one of the accused persons pushed him aside and he left the place of occurrence to save his life by entering into a drain. According to him, some lady workers came forward and the accused left the place of occurrence. The fact remains that this witness did not identify the accused in the dock and did not name these two accused though, it is stated that there were four accused. Thus his statement is also omnibus and he had not pinpointed the present petitioners. Another important fact is that the other individuals who according to PW-5 were present in the place of occurrence were not examined except PW-6, however, these Pw-6 did not support the prosecution case.

18. Another witness PW-6, a lady worker who is projected as an eye- witness also could not recognize any of the accused persons and she deposed that she did not see the occurrence and her testimony is that she heard about the incident.

19. PW-7, the Investigating Officer during the cross-examination, candidly admitted that he himself collected the injury report but he did not record the statement of any doctors and also admitted that though he collected the medical report on 21.05.2009 but there was no mention of issuing date in the medical report and he did not collect x-ray report and that he had also not seen the medico-legal register maintained in the Hapajan Block PHC.

20. Therefore, in the aforesaid backdrop of evidence produced by the prosecution, a serious doubt is created as regards presence of these accused persons in the place of occurrence and that they had actually committed the offence. The investigating officer had though exhibited the FIR as Ex-1, the sketch map of the place of occurrence Ex-2 and the charge sheet Ex-3.1, this Court has not found any injury report as exhibit. Therefore, in the aforesaid Page No.# 8/9

backdrop, it cannot be said that the injuries inflicted upon the victims were duly corroborated by medical evidence. The fact also remains that neither the doctor was examined nor his statement was recorded during the investigation under Section 161 CrPC as stated by the investigating officer during his examination.

21. Therefore, in the aforesaid backdrop, this Court is of the unhesitant view that the prosecution had failed to establish that the accused had inflicted the grievous injuries upon the victims in furtherance of their common intention, rather a serious doubt is created as regards their presence in the place of occurrence and their role in committing the crime. Therefore, for the reasons recorded hereinabove, this Court is of the unhesitant view that the learned Courts below failed to take note of the fundamental principles of criminal jurisprudence that the prosecution is to prove their case beyond reasonable doubt.

22. Now, let this Court dealt with the argument as regards Section 34 IPC. For shake of convenience, the aforesaid provision is quoted herein below:-

"34. Acts done by several persons in furtherance of common intention.--

When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone."

23. By now it is well settled that to convict an accused with the aid of Section 34 IPC, the prosecution must establish prior committing of minds and that the accused had pre-planned and shared a common intention to commit the crime and had actually committed the crime and that criminal act has been done in furtherance of the common intention of all the accused.

24. The word 'Act' used in Section 34 IPC denotes a series of Act as a Page No.# 9/9

single act. What is required under law is that accused persons sharing the common intention must be physically present at the scene of occurrence and be shown not to have disassociated themselves from the intended criminal act, for which they shared the common intention. Culpability under Section 34 IPC cannot be excluded by mere distance from the scene of occurrence.

25. In the case in hand, there is no material in the testimonies of PW-1 & PW-2 to suggest any covert or overt act having common intention to inflict the injuries upon the PW-1 & PW-2. Further, the prosecution has also failed to produce any evidence to show that these accused persons had common intention in attacking the victims rather it is clear from the foregoing discussion that the prosecution has infact failed to prove beyond reasonable doubt that it is the accused persons who had committed the crime.

26. Accordingly, these criminal revision petitions stand allowed by setting aside the judgment dated 13.06.2013 passed in Sessions Case No.215(T)/2012 and the judgments dated 17.10.2013 passed in Criminal Appeal Nos. 32(3)/2013 & 33(3)/2013. The accused/ petitioners are hereby acquitted by giving the benefit of doubt.

27. Bail bonds stand discharged.

28. TCR be send back.

JUDGE

Comparing Assistant