ABDUL GAFUR & ORS v. THE STATE OF ASSAM

Citation: [2007] 12 S.C.R. 1031

Court: Supreme Court of India

Bench: ARIJIT PASAYAT, D.K. JAIN

Case summary

ABDUL GAFUR & ORS v. THE STATE OF ASSAM.pdf

Judgment text

y: . _J ABDUL GAFUR & ORS. v. THE STATE OF ASSAM DECEMBER 6, 2007 [DR. ARIJIT PASAYAT AND D. K. JAIN, JJ. ] • . , Penal Code, 1860-ss. 395, 397 and 354-Prosecution under- Accusedwere known of the victims-Animosity between the partied- Evidence ofone ofthe witnesses contrary to medical evidence-On telephonic il? formation, during commission ofthe offence, miscreants were mentionedas strangers-Conviction by trial Court-Confirmed by High Court-On appeal, held: Accusedare entitled to be acquitted, in view of infirmities in the background of animosity between the parties-Order ofHigh Court was on surmises and conjectures. ~ Prosecution alleged against the appellants-accused, that they entered the house of the victims, armed with deadly weapons, assaulted the inmates of the house, looted gold ornaments and committed rape on two ofthe female members.

During the course of the occurrence one of the members of the family, informed the police over telephone that some strangers were committing dacoity ~ in the house and had assaulted two inmates ofthe house. Thereafter, FIRwas lodged. Three ofthe accused were declared to be proclaimed absconders. The accused who faced trial were convicted u/s 395 and 397 IPC. Two ofthe accused were additionally convicted u/s 354 IPC. -1 The conviction was based on evidence ofPWs 1, 2, 3, 5 and 8. High Court dismissed the appeal, upholding the conviction. Hence the present appeal. Allowing the appeal, the Court HELD 1. The appellants deserves to the acquitted. The ,, infirmities in the background of admitted animosity between the '. parties render the prosecution version unacceptable. The trial Court and the High Court did not analyse the evidence correctly and acted on mere surmises and conjectures. ,. - ·~ [Paras 11and12) (1035-E,F, GJ 2. The High Court has erred in holding that the evidence of PWs.

1, 2, 3, 5 and 8 stood fully corroborated by the medical evidence. Significantly, on consideration ofthe evidence ofPW 4, it is clear that the evidence of this witness is clearly contrary to the medical evidence. High Court recorded as finding that one of the appellants was absconding. As a matter of fact the evidence of Investigating Officer shows that he had arrested him on the date the First Information Report was lodged. High Court has merely referred to certain conclusions of the Trial court without analyzing the evidence and various submissions made by the appellants. To add to the vulnerability of the prosecution version, the FIR was lodged long after the incident and in fact law was already set on motion after the telephonic message had been received. [Para 10) 3. The High Court has noted as if a telephonic message was ' given by a stranger regarding decoity.

However, in the evidence it has came that the information was given not by a stranger but by PW 1who was member ofthe family. In the information given it was stated that some stranger had committed decoity. The accused persons are not strangers and were practically neighbours of the informant and his family. The High Court noted that there was no ~ intention to falsely implicate accused persons because ofenmity and there was no reason as to why dignity oftwo young girls would be put at stake by alleging rape. It is to be noted that in fact rape was alleged but the trial Court found that there was no material to substantiate the plea of rape. The evidence is totally inconsistent and lacks credence. [Para 9 and 10] [1034-G, H; 1035-A, BJ CRIMINAL APPELLATE JURISDICTION :Criminal Appeal No. 1675 of2007. From the final Judgment and Order dated 12. 5. 2006 ofthe Gauhati ' . High Court in Criminal Appeal No. 201 of 1998. " H. L. Agrawal, Azim H.

Laskar, Anand and Abhijit Sengupta for the Appellants. ··~ \ ABDULGAFURv. STATE[PASAYAT,J. ] 1033 ,,_, Avijit Roy (for Mis Corporate Law Group) for the Respondent. The Judgment ofthe Court was delivered by DR. ARIJIT PASAYAT, J. 1. Leave granted. 2. Challenge in this appeal is to the order passed by a learned Single Judge of the Gauhati High Court dismissing the appeal filed by the appellant. ~ 3. Background facts according to the prosecution in a nutshell are as follows: On the night of 11. 4. 88 at about 6. 30 P. M. the accused Abdul Gafur, Hokoi Mian, Najir Ali, Sayed Ali, LatifAli, Aklas Mian, Ashu Mian and Tabai Mian being armed with deadly weapons namely, dao, lathis, dagger etc. surrounded the house of Satyendra Nath Gupta at village Brahmanshashan, assaulted him, his wife Smti Hemamalini Gupta, his son Subhendu Gupta, his eldest daughter A1~ali Gupta and his relatives Sushi! ...

-- Chanda causing grievous injuries to them, tied them up and then looted gold ornaments, namely, chains, bangles, ear rillgs etc. valued at Rs. 42,950. 00 from the possession ofthe female inmates ofthe house, namely, Hemamalini Gupta, Anjali Gupta, Mitra Gupta, Rubi Gupta and Nell Gupta. That apart two ofthe accused persons, namely, Hokol Mian and Aklas Uddin committed rape respectively on Mitra Gupta and Rubi Gupta and decamped with the looted booties. During the course of occurrence Sushi! Chandra Gupta the son of Satyendra Nath Gupta informed police over telephone that decoity was being committed in the house of Satyendra Nath Gupta and that Satyendra Nath Gupta and his ·-~ wife were assaulted by the decoits causing grievous injuries to them. At the Nilambazar out post a general diary vide entry no. 212 at 8. 15 p. m. on the night of 11. 4. 1988 was recorded and on the basis of such information enquiry was launched.

Thereafter Satyendra Nath Gupta also lodged a written Ejal1ar with police ofNilambazar out post. The Officer i Incharge ofNilambazar out post sent the written ejahar to the Officer ) •,. ,. ,; Incharge ofKarimganj P. S. whereupon the Officer Incharge ofKarinlganj P. S. registered a case under Section 395/397/376 of the Indian Penal Code, 1860 (in short the 'IPC'). S. I. of police T. C. Bailong after completion ofenquiry/investigation submitted charge sheet against the accused Abdul Gafur, Hokoi Mian, Boloi Mian, Sayed Ali, Aklas Uddin, Najir Ali, LatifAli, Ashu Mian and Tabai Mian for alleged commission ofoffences punishable under Section 395 and 397 IPC. The charges against the accused Najir Ali, Ashu Mian and Tabai Mian were proven and they were declared to be proclaimed absconders.

The case against other six accused persons, namely Abdul Gafur, Hokoi Mian, Boloi Mian, Sayed All, Alas Uddin and LatifAli was committed to the Court of Sessions by learned Judicial Magistrate, 1st Class, Karimganj. 4. During trial nine witnesses were examined to further the prosecution version. 5. Placing reliance on the evidence ofwitnesses-PWs. 1, 2, 3, 5 and 8, the trial court found that accused appellant 1, 2, 3, 5 & 6 guilty of offence punishable under Section 395 read with Section 397 IPC and accused appellant Nos. 3 & 5 were guilty of offence punishable under \ Section 354 IPC. For the offence relatable to Section 395 read with - Section 397, each was sentenced to undergo tigorous imptisonment for seven years and to pay a fine ofRs. 2,000/-with default stipulation. For the offence relatable to Section 354 IPC they were sentenced to rigorous imprisonment ofone year each. 6. The convicted accused persons preferred an appeal before the High Court.

As afore-stated the High Court dismissed the appeal and affrrmed the conviction and sentence. 7. In support of the appeal learned counsel for the appellant )'- submitted that the High Court has disposed ofthe appeal cryptically without even discussing the vatious submissions made. There are also several infirmities in the conclusions artived at. 8. Learned counsel for the respondent-State on the other hand supported the judgment of the trial court and the High Court. 9. The High Court has noted as if a telephonic message was given ~ by stranger regarding decoity. However, in evidence it has given that the information was given not by a stranger but by Sushi} Chandra Gupta, PW 1. In the information given it was stated that some stranger had _j, \ ABDUL GAFURv. STATE [PASAYAT, J. ] 1035 ~ committed decoity. 10. The accused persons are not strangers and were practically neighbours ofthe informant and his family.

The High Court noted that there was no intention to falsely implicate accused persons because ofenmity and there was no reason as to why dignity oftwo young girls would be .. put at stake by alleging rape. It is to be noted that in fact rape was alleged -i but the Trial Court found that there was no material to substantiate the plea ofrape. The evidence is totally inconsistent and lacks credence. The High Court's observations were clearly based on surmises and contrary to the factual scenario. The High Court has noted that the evidence of PWs. 1, 2, 3, 5 & 8 stand fully corroborated by the medical evidence. Significantly, on consideration ofthe evidence of PW 4, it is clear that the evidence ofthis witness is clearly contrary to the medical evidence. To. add to the confusion, it is noted that the High Court recorded as finding that appellant Abdul Gafur was absconding. As a matter of fact the j -' evidence oflnvestigating Officer (in short the 'I.

O') shows that he had arrested Abdul Gafur on the date the First Information Report (in short the 'FIR') was lodged. Unfortunately the High Court has merely referred to certain conclusions ofthe Trial court without analyzing the evidence and various submissions made by the appellants. To add to the vulnerability ofthe prosecution version, the FIR was lodged long after the incident and in fact law was already set on motion after the telephonic message had been received. 11. The aforesaid infirmities in the background ofadmitted animosity between the parties renders the prosecution version unacceptable. The Trial Court and the High Court did not analyse the evidence c01rectly and acted on mere surmises and conjectures. That being so, the appellants deserve to be a,quitted, which we direct. 12. Appeal is allowed. The appellants are acquitted ofthe charges. They be set forth at liberty ifnot required in any other case. _,. ) K. K. T. Appeal allowed.