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2009 DIGILAW 616 (GAU)

MD. Hanif Ali v. State of Assam

2009-08-27

P.K.MUSAHARY

body2009
1. Heard Md. M.H. Choudhury, learned counsel for the appellant and also heard Mr. B. Gogol, learned Additional Public Prosecutor, Assam. 2. This appeal is directed against the judgment and order dated 27.12.2005 passed in Sessions Case No. 34 (DMFT)/2004 by the ad hoc Additional Sessions Judge, Darrang, Mangaldai convicting the accused-appellant under section 395 read with section 398, IPC and sentencing him to undergo R.I. for 7 years and pay fine of Rs. 5,000 in default, further R.I. for 5 months. 3. The prosecution case, in brief, is that on 1.2.1998 at about 7.00 a.m., some miscreants numbering about 10/12 with arms and ammunitions entered into the house of the informant Md. Sohrab Ali and demanded Rs. 50,000 from him. He immediately informed the security personnel posted at Rajib Gandhi Wild Life Sanctuary and on getting the said information the security personnel visited the house and apprehended all the miscreants along with arms and ammunitions. The arms and ammunitions, so recovered from them, were seized. 4. On the basis of the aforesaid information, an FIR was lodged which was registered as Dalgaon P.S. Case No. 26/98 under section 398, IPC. All the accused-persons were enlarged on bail before committal of the case to Sessions Court. The present accused-appellant, after being enlarged on bail, has been absconding. The police after investigation, submitted charge sheet under section 398, IPC against all the accused-persons. Thereafter, the case was committed on 21.8.2000 to the court of Sessions Judge, Darrang, Mangaldai declaring the accused-appellant as absconder and charges were framed against the accused-persons except the present appellant, Hanif Ali. The accused-persons, who appeared before the learned trial court pleaded not guilty and claimed to stand trial. The trial commenced against all the accused-persons except the present appellant. After the trial, the learned trial court acquitted all the accused-persons except the present appellant vide judgment and order dated 20.1.2003. 5. After the aforesaid judgment dated 20.1.2003 was pronounced, the present appellant surrendered on 26.8.2004 before the Dalgaon Police Station and then he was shown arrested. He was also produced before the learned Judicial Magistrate, 1st Class, Udalguri who, vide his order dated 29.10.2004, committed the case against the present appellant to the court of Sessions Judge, Darrang for trial and after receiving the case on committal, the trial commenced before the court of Ad hoc Additional Sessions Judge, Darrang. He was also produced before the learned Judicial Magistrate, 1st Class, Udalguri who, vide his order dated 29.10.2004, committed the case against the present appellant to the court of Sessions Judge, Darrang for trial and after receiving the case on committal, the trial commenced before the court of Ad hoc Additional Sessions Judge, Darrang. The prosecution examined as many as 12 witnesses including the I.O. to establish the charge against the appellant while the defence examined no witness. On the basis of the evidence on records and after hearing the learned counsel for the parties, the learned trial court convicted and sentenced the accused-appellant as stated above vide judgment and order dated 27.12.2005. 6. Mr. Choudhury, learned counsel appearing for the accused-appellant submits that the other accused-persons have been acquitted by an judgment and order dated 20.1.2003 passed by the learned Ad hoc Sessions Judge, Darrang, Mangaldai due to failure on the part of the prosecution to prove the case against them beyond all reasonable doubts. According to Mr. Choudhury, the present accused-appellant is implicated in the same case where same set of evidence has been adduced by the prosecution. In the present case also the prosecution has failed to establish the charge beyond any reasonable doubt and as such the appellant is entitled to get the benefit of doubt and set at liberty. 7. It has been submitted that none of the prosecution witnesses has deposed before the learned trial court that they could identify the present accused-appellant and as such, there is no material on record for holding the accused-appellant guilty of the alleged offence. It has also been submitted that the accused-appellant is a daily wage earner and he has been away to Meghalaya for earning his daily wage for which he was not aware about the criminal trial proceeded against him. He was not an absconder but as he was not aware about the trial, he failed to appear and stand the trial. Moreover, he is maintaining his family consisting of his wife and five children. It is submitted at the Bar that the present accused-appellant has been in jail from 26.8.2004 and by now he has spent almost 5 years and has served the major portion of the sentence and, therefore, he may be set at liberty on benefit of doubt. 8. Mr. It is submitted at the Bar that the present accused-appellant has been in jail from 26.8.2004 and by now he has spent almost 5 years and has served the major portion of the sentence and, therefore, he may be set at liberty on benefit of doubt. 8. Mr. Gogoi, learned Additional P.P., on the other hand, submits that the case of the present appellant cannot be treated at par with the other accused persons who were acquitted earlier vide judgment and order dated 20.1.2003 inasmuch as he was avoiding the due process of law by absconding during the entire period of trial. Moreover, according to Mr. Gogoi, the evidence of PW3 and PW5 are very categorical inasmuch as they have deposed that they could identify the present appellant while he was in the dock. 9. From the materials on record, the indisputable position that has emerged in this case is that all the accused-persons including the present appellant were apprehended in a group while they were committing offence in the house of the informant with their arms and ammunitions. They were arrested and enlarged on bail. All the accused-persons except the present-appellant appeared before the learned trial court and faced the trial and got the acquittal order from the learned trial court. It is also an indisputable position that the present appellant, for some reasons, did not appear and faced the trial. The only consideration that should be made for disposal of this appeal is whether he is found involved in this case or not. 10. The prosecution, although produced as many as 12 witnesses, could not bring any material to the effect that the present appellant alone is responsible for commission of the alleged offence. PWs 3, 4, 5, 6, 7, 8 and 9 are all official witnesses being the police personnel. PW3, Shri Ganeswar Deka and PW5 Shri Santo Hazarika, on whose evidence the prosecution relied upon, are also police personnel. PW3 Ganeswar Deka, in his cross-examination, stated that he could identify the accused-appellant Hanif Ali. PW5 Shri Santo Hazarika also deposed in his cross-examination that the present appellant is one of the dacoits, but from the evidence of these two PWs, nothing could be found that this accused-appellant was carrying any arms. There is nothing to suggest from amongst the accused persons, who carried which of the particular arms and ammunitions so recovered by the security personnel. There is nothing to suggest from amongst the accused persons, who carried which of the particular arms and ammunitions so recovered by the security personnel. These two prosecution witnesses have not stated from amongst the accused persons, who pointed the pistol at the chest of the informant. At least there is no evidence that this particular accused-appellant pointed the pistol at the chest of the informant. 11. It is also significant to note from the evidence of PW1, the informant, that he could not identify any of the accused persons, not to speak of the present appellant, although, he appeared before the learned trial court and he was in the dock. The evidence of the informant, PW1 is to be given importance inasmuch as he is the person who suffered due to the aforesaid incident of alleged dacoity. PW3 and PW5 were examined on 16.2.2005, i.e., after about 7 years of the date of occurrence. It is hardly believable that the security officials, who did not know the accused-appellant personally before the alleged occurrence, could remember the face of the accused-appellant after lapse of 7 years, as such, I do not find the evidence of these two prosecution witnesses, so far as the identification of the accused-appellant is concerned, is cogent and acceptable. 12. In my considered view, taking into consideration the evidence on records, the prosecution could not succeed in establishing its case against the present appellant beyond reasonable doubt. Under such circumstances, I hold that the accused-appellant is entitled to get the benefit of doubt and, thus, deserves to get an order of acquittal. As a result of the aforesaid discussions, I reverse the conviction and sentence as recorded by the learned trial court, vide impugned judgment and order dated 27.12.2005. Accordingly, the same is set aside. The accused-appellant Md. Hanif Ali be set at liberty forthwith, if his further detention is not required in connection with any other case. 13. The appeal stands allowed. 14. Send down the LCR to the learned court below forthwith.