Gauhati High Court
Md. Nekibur Rahman vs The State Of Assam on 21 May, 2025
Author: Parthivjyoti Saikia
Bench: Parthivjyoti Saikia
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GAHC010006232011
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.A./98/2011
MD. NEKIBUR RAHMAN
S/O MD. FAIZUR RAHMAN, R/O CINAMARA, RUPNAGAR, P.S. JORHAT,
DIST. JORHAT, ASSAM.
VERSUS
THE STATE OF ASSAM
Advocate for the Petitioner : MR. S DEKA, MR.A D CHOUDHURY,MR.A M BORA,MR.D
CHOUDHURY
Advocate for the Respondent : , ,,PP, ASSAM
Linked Case : Crl.A./103/2011
MD. NOOR ISLAM ALI and 2 ORS
S/O LATE NACHIM ALI OF GARIGAON
FANCIPARA UNDER JALUKBARI POLICE STATION
MALIGAON IN THE DIST. OF KAMRUPMETRO/ASSAM
DRIVER CONSTABLE NO. 67 OF JORHAT DIST. EXECUTIVE FORCE.
2: SRI BHUPEN BORA
SON OF LT. GOLAP BORA RESIDENT OF VILLAGE MELENG DOLAIGAON
UNDER TEOK POLICE STATION IN THE DIST. OF JORHAT/ASSAM
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UB CONSTABLE NO. 741 OF JORHAT DIST. EXECUTIVE FORCE.
3: SRI SRINATH PATHAK
SON OF LATE RAMASISH PATHAK RESIDENT OF VILLAGE DULHINGANJ
UNDER JAGADISHPUR POLICE STATION IN THE DIST. OF BHOJPUR
ARA/BIHAR
JORHAT DIST. EXECUTIVE FORCE.
4: RANJIT NEOG
S/O LT. CHIKON NEOG R/O VILL.KAKAJAN
DULIAGAON UNDER TEOK POLICE STATION IN THE DIST. OF JORHAT
ASSAM HAVILDAR IN 16 IR POLICE BATTALION MARIGAON.
VERSUS
THE STATE OF ASSAM
REPRESENTED BY PP
ASSAM.
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Advocate for : MR.J C BARMAN
Advocate for : MR. B .SARMA
ADDL PP
ASSAM appearing for THE STATE OF ASSAM
:: PRESENT ::
HON'BLE MR. JUSTICE PARTHIVJYOTI SAIKIA
For the Appellants : Mr. A.M. Bora,
Senior Advocate.
For the Respondent : Mr. B. Sarma,
Addl. P.P., Assam.
Date of Hearing : 16.05.2025.
Date of Judgment : 21.05.2025.
JUDGMENT AND ORDER (CAV)
Heard Mr. A.M. Bora, learned senior counsel appearing for the appellants. Also
heard Mr. B. Sarma, learned Addl. Public Prosecutor, Assam.
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2. Both these appeals are filed under Section 374 (2) of the Code of Criminal
Procedure against the judgment and order dated 30.04.2011 passed by the learned
Sessions Judge, Jorhat, Assam in Sessions Case No.93 (JJ)/2000. The appellant
Kumud Chetia was convicted under Sections 330 and 218 of the Indian Penal Code.
The appellant Phanidhar Bora and Nekibur Rahman were convicted under Section
304(Part-II) of the Indian Penal Code. They were also convicted under Section 201 of
the Indian Penal Code. The appellant Bhupen Bora, Ranjit Neog, Srinath Pathak and
Noor Islam were convicted under Sections 201 of the Indian Penal Code only.
3. Police had arrested a person called Sariful Hussain @ Bablu in connection with an
incident of theft of a scooter. He was taken into police custody on 25.08.1994 in
connection with the said case being Mariani P.S. Case No.17/1995. Next day, i.e. on
26.08.1994, in search of the stolen scooter, Sariful Hussain was taken to a small pond
situated near the Railway Station. Sometime later, the dead body of Sariful Hussain
was recovered from the said pond.
4. On investigation, it was initially discovered that for negligence of the appellant
Nekibur Rahman, the incident took place. Therefore, a case was registered under
Section 302 of the Indian Penal Code against the appellant Nekibur Rahman. The
charge sheet was filed against the appellant Nekibur Rahman.
5. Thereafter, the learned Addl. Sessions Judge, Jorhat directed the police to
reinvestigate the case. Thereafter, another charge sheet was filed against the
appellants Phanidhar Bora, Ranjit Neog & Noor Islam.
6. The learned Addl. Sessions Judge, this time, framed charges under Sections 304,
330 and 218 of the Indian Penal Code against the appellant Kumud Chetia (now
deceased). The charge under Section 302 of the Indian Penal Code was framed
against the appellant Nekibur Rahman. The charges under Sections 304 and 201 of
the Indian Penal Code were framed against the appellants Phanidhar Bora, Ranjit Bora
and Noor Islam. The charge under Section 201 of the Indian Penal Code was framed
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against Srinath Pathak and Bhupen Bora.
7. During the trial of the case, 26 witnesses were examined by prosecution whereas
the court itself examined 5 witnesses. On the basis of the evidence on record, the trial
court passed the impugned judgment.
8. I have heard the learned counsel of both sides.
9. In paragraph 78 of the impugned judgment it has been mentioned as under:
"The witnesses saw police inflicting lathi blow on the head of the
deceased. The deceased was kicked by the police and then he emerged into
water. The deceased was handcuffed. The medical and ocular evidence clearly
establish that the deceased was assaulted and he died due to the injuries.
Now, the question arises who amongst the accused persons assaulted the
victim? The eye witness account given by the witnesses present at the place of
occurrence does not disclose the specific identity of assailant although, the
assailant was one of them." (sic.)
10. In spite of the aforesaid observations, the learned trial court had held that the
G.D. Entry showed that the deceased was handcuffed when he was taken to the pond.
The court further held that the witnesses saw the handcuffed hands of the deceased
when the dead body was brought out from the pond. The learned trial court had held
that the appellants gave false information that at the time of search of the stolen
scooter, the handcuffs were already removed. The appellants allegedly gave false
information that while the deceased tried to run away, he fell into the pond and died.
11. According to trial court, the first progress report (Ext.2) and the final progress
report showed that the appellant Nekibur Rahman dealt head injury to the deceased,
though the eye witnesses had failed to identify specifically who inflicted injuries to the
deceased.
12. Having considered the submissions made by the learned counsels of both sides
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and after going through the impugned judgment, this Court is of the opinion that the
learned trial court convicted the appellants not on the basis of evidence but on the
basis of some police reports. When there was no evidence to prove the offences
against the appellants beyond all reasonable doubts, the trial court convicted them on
the basis of conjecture and surmises. This court is of the opinion that the learned trial
court had erroneously oriented itself and arrived at an incorrect finding.
13. In a criminal trial, an offence against an accused has to be proved beyond all
reasonable doubt. Conjecture and surmises have no place in a criminal trial.
14. Now, this Court is of the opinion that the impugned judgment is bad in law.
Therefore, the appeals are allowed.
15. The impugned judgment and order dated 30.04.2011 passed by the learned
Sessions Judge, Jorhat in Sessions Case No.93 (JJ)/2000, is set aside. The appellants
Md. Nekibur Rahman, Md. Noor Islam, Bhupen Bora, Srinath Pathak and Ranjit Neog
are acquitted from this case.
The instant appeals are disposed of. Send back the LCR.
JUDGE
Comparing Assistant
