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2019 DIGILAW 734 (GAU)

Abdul Kalam v. Burhan Uddin

2019-06-12

ACHINTYA MALLA BUJOR BARUA, SONGKHUPCHUNG SERTO

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JUDGMENT : Songkhupchung Serto, J. 1. Heard Mr. S.C. Biswas, learned counsel appearing for the appellant. Also heard Ms. S. Jahan, learned Additional Public Prosecutor appearing for the State of Assam and Mr. J.M. Sulaiman, learned counsel appearing for the respondent Nos. 1 and 2. 2. This is an appeal against the judgment and order dated 17.11.2015 passed by the learned Sessions Judge, Karimganj in Sessions Case No. 83/2016, wherein, the respondent Nos. 1 and 2 were held not guilty and acquitted of the charges against them under Section 302 read with Section 34 of IPC. 3. On 02.10.2012 one Abdul kalam lodged an ejahar before the Officer-In-Charge of Patherkandi Police Station stating that his daughter, wife of Md. Abdul Sattar of Eraligool village had been killed by somebody in the early morning of that day. Upon receiving the ejahar and FIR 162/2012 was registered under Section 302 and Section 34 of IPC. 4. In the course of investigation husband of the deceased alongwith the two accused persons namely Burhan Uddin and Ekbal Hussain were arrested. The I.O. examined as many as 13(thirteen) witnesses and recorded their statements under Section 161 Cr.P.C. Chargesheet was submitted only against the two accused persons namely Burhan Uddin and Ekbal Hussain leaving aside the name of Bilal Hazi whose name prominently figured in the statement of at least two witnesses namely Kabir Uddin son of Abdul Sattar and Abdul Sattar husband of the deceased, recorded under Section 161 of Cr.P.C. 5. The learned Sessions Judge, Karimganj without properly examining the investigation report including the statement of the witnesses recorded under Section 161 Cr.P.C. framed the charge against only the two accused persons namely Burhan Uddin and Ekbal Hussain leaving aside Billal Hussain though his name as stated above was prominently mentioned by at least two witnesses examined by the I.O. Thereafter the prosecution examined 9 (nine) witnesses only though 13 (thirteen) witnesses were cited in the charge-sheet. 6. 6. After hearing the learned counsel for the parties and examining the evidence given by the 9(nine) witnesses, the learned Sessions Judge, Karimganj came to a finding that though one of the accused persons namely Burhan Uddin was seen at the place of occurrence by PW-8 who is none other than the husband of the victim that is not sufficient to convict him because the time gape between the time allegedly he was last seen at the place of occurrence and the time the dead body of the deceased was found is too wide therefore, the principle of last seen together theory cannot be applied. Further the learned Sessions Judge also came to the conclusion that the circumstantial evidence was not sufficient to convict the accused persons and accordingly passed the acquittal order. 7. After having considered the fact that three of the cited witnesses were not examined without assigning any reason and the fact that one of the accused persons whose name was prominently mentioned by at least two witnesses as one of the perpetrators of the crime but was not chargesheeted and accordingly not tried and the fact that the principle of last seen theory have not been applied by the learned Trial Court due to erroneous understanding of the same, we are of the view that the impugned judgment and order is manifestly erroneous and not sustainable in law. Therefore, the same is quashed and set aside. 8. In consequence, we direct the Investigation Officer of the case to re-examined afresh the statement of the witnesses recorded under Section 161 Cr.P.C. more particularly that of Kabir Uddin and Abdul Sattar wherein the name of Billal Hussain was prominently mentioned and take a decision as to whether an additional charge sheet can be filed. Thereafter, the learned Sessions Judge, Karimganj, keeping in view what has been noted above shall proceed with the trial afresh as per law. In case both the parties wants to adduce additional evidence they should be permitted to do so. To make it clear the evidence which are already in the record shall be retained as part of the record. In case an additional charge sheet against Billal Hussain is submitted and charge is framed, he shall be permitted to cross-examined all the witnesses already examined, if so desired. 9. This appeal stands disposed of. To make it clear the evidence which are already in the record shall be retained as part of the record. In case an additional charge sheet against Billal Hussain is submitted and charge is framed, he shall be permitted to cross-examined all the witnesses already examined, if so desired. 9. This appeal stands disposed of. Send back the LCR alongwith a copy of this order to the learned Sessions Judge, Karimganj. Let a copy of this order be also send to the Officer-In- Charge of Patherkandi Police Station for compliance.