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2019 DIGILAW 1258 (GAU)

State of Assam v. Utpal Chandra Bhuyan

2019-11-21

HITESH KUMAR SARMA

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JUDGMENT : Hitesh Kumar Sarma, J. This is an appeal preferred by the State of Assam against the judgment and order, dated 20.01.2009, passed by the learned Sessions Judge, Tinsukia in Criminal Appeal No. 1(1)/2007, Criminal Appeal No. 4(1)/2007 and Criminal Appeal No. 5(1)/2007 setting aside the judgment, dated 11.12.2006 in GR Case No. 606/1998 under Section 304(A) of the IPC passed by the learned Chief Judicial Magistrate, Tinsukia. 2. I have perused the appeal memo and the impugned judgments. I have also perused the records of the learned court below, including the evidence available therein. 3. I have heard Mr. BB Gogoi, learned Additional Public Prosecutor, appearing for State appellant. Also heard Mr. BM Choudhury, learned counsel appearing for the respondent Nos. 1 to 3 as well as Mr. S Bothakur, learned counsel for the respondent Nos. 4 and 5. 4. The respondents were convicted and sentenced by the learned Chief Judicial Magistrate, Tinsukia to suffer rigorous imprisonment for 2 (two) years and a fine of Rs. 10,000/- each vide the judgment, dated 11.12.2006, passed in GR Case No. 606/1998 under Section 304(A) of the IPC. 5. Against the judgment, an appeal was preferred by the respondents before the learned Sessions Judge, Tinsukia in the aforesaid criminal appeal and the said appeal was disposed of by the learned Sessions Judge vide judgment, dated 20.01.2009. 6. In para 45 of the said judgment, the learned Sessions Judge observed and ordered as follows :- "In my view, the appellants should be tried for the said offence afresh for proving the charge by the prosecution with the help of sufficient and cogent and full proof evidence. That being so, the conviction and sentence is set aside and the case is remanded to the Court below for a fresh trial after obtaining prosecution." 7. On examination of the entire judgment of the learned Sessions Judge, it transpires that the case has been remanded back to the learned Chief Judicial Magistrate, i.e. the court of the first instance, with a direction for a fresh trial after obtaining prosecution sanction. But, at the same time, the judgment of the learned Chief Judicial Magistrate aforesaid was set aside on the ground quoted below from the same para 45. 8. But, at the same time, the judgment of the learned Chief Judicial Magistrate aforesaid was set aside on the ground quoted below from the same para 45. 8. It has further been observed by the learned Sessions Judge in the same para of the judgment as follows :- "Being so situated, it must be held that the offence under Section 304A IPC is not proved against the appellants beyond all reasonable doubt. The conviction and sentence of the appellants is seemed to be not proper." 9. While the learned Sessions Judge, vide the appeal judgment, directed fresh trial after obtaining prosecution sanction also held that the offence under Section 304(A) of the IPC is not proved against the respondents and therefore, the sentence is said to be not proper, remanding the case for fresh trial after obtaining prosecution sanction. 10. That being so, it appears that the learned Sessions Judge has taken contradictory views in the appeal judgment. On consideration of the entire materials placed before this court, including the evidence of the witnesses, this court is of the view that the order of the learned Sessions Judge in the aforesaid appeal remanding the case for fresh trial is not proper in view of the fact that he has already taken a view, on the evidence on record, that the offence is not proved beyond reasonable doubt. This court has noticed that the learned Sessions Judge while directing fresh trial, after obtaining prosecution sanction, had also dealt with the merit of the case on the basis of the evidence on record and held that prosecution failed to prove the case beyond reasonable doubt. If he has remanded the case back for the purpose of obtaining prosecution sanction and then for fresh trial he could not have commented on the evidence on record holding that the prosecution failed to prove the case beyond all reasonable doubt. That apart, even if the prosecution sanction is obtained by the learned trial court as per the direction contained in the appellate judgment of the learned Sessions Judge, yet it would be completely improper to record fresh evidence of those who are not connected with prosecution sanction as they are witnesses to the facts only. 11. That apart, even if the prosecution sanction is obtained by the learned trial court as per the direction contained in the appellate judgment of the learned Sessions Judge, yet it would be completely improper to record fresh evidence of those who are not connected with prosecution sanction as they are witnesses to the facts only. 11. The judgment of the learned Sessions Judge in the criminal appeals, referred to in the first para of this judgment, is set aside with a direction to him to hear the appeals afresh and pass judgment on materials/evidence on record. So far as the prosecution sanction under Section 197 of the Cr.PC is concerned, the respondents be given a chance of placing their arguments before it. 12. The respondents are directed to appear before the leaned Sessions Judge, Tinsukia on 10th of January, 2020. 13. This criminal appeal stands disposed of. 14. Send down the LCR along with a copy of this judgment.