Abdul Mannan & Ors. vs State of Assam

P. K. Musahary, J.—Heard Mr. R. Goswami, learned counsel for the accused/petitioner and Mr. K.Munir, learned Addl.P.P,Assam for the State Respondents.

The accused/petitioners were convicted under 34/341/448/323 IPC and sentenced to pay fine of Rs. 250/ each under Section 341/34 IPC, in default, to suffer S.I. for 3 days and they were sentenced to pay fine of Rs. 750/ each under Section 448/34 IPC, in default, to suffer S.I. for 7 days and further sentenced to pay fine of Rs. 500/ each under Section 323/34 IPC, in default to suffer S.I. for 10 days vide judgment dated 30.4.04 rendered by the learned Judicial Magistrate, 1st. Class, Karimganj in GR Case No. 731/2000.They preferred an appeal before the learned Session Judge, Karimganj which was registered as Criminal Appeal No. 23(2)/04 and the said Appeal was dismissed vide judgment and order dated 29.9.2004 passed by the learned Additional Sessions Judge, Karimganj.

Being dissatisfied with and aggrieved by the appellate order upholding the conviction and sentence, the convicts/petitioners are before this court.

Brief facts involved in this case are that on 4.8.2000 at about 9 A.M. at Chorguli bazar under Karimganj P.S, the convict/ petitioners, in furtherance of their common intention entered into the shop of one Abdu Jalil and Musstt. Hasna Khanam and disp essed them of more than half portion of tt shop house on the southern portion by usir. force and assaulting the aforesaid Jalil besid ransacking the commodities in the shop.'' aforesaid Abdul Jalil and Musstt. Hasr Khanam lodged an FIR, on the basis of whic Karimganj P.S. Case No. 368/2000 wa registered under Sections 448/341/427/34 IPC.

The I.O. after completion of investigation, submitted chargesheet under Section 341/448/323/427/34 IPC against present accused/petitioners. The learned court framed charge under the aforesaid sections of law to which the the accused/ petitioners pleaded not guilty and claimed to stand trial.

The prosecution examined 5 witnesses including the I.O and the Medical Officer. Based on the evidence and materials on record, the learned trial court imposed conviction and sentence against the accused/ petitioners and the same was upheld by the learned appellate court below as stated earlier.

P.Ws 1 and 2 are the first informants. In their evidence they maintained the allegation made in the FIR. The prosecution, by examining the Medical Officer P. W6, proved that P.W1 Abdul Jalil received simple injuries on his person caused by blunt weapon. The prosecution has to prove that the said injuries were caused to P.W1 by the accused/petitioners. For this purpose, it is necessary to discuss the evidence of P.Ws 3, 4 and 5.

P. W3 deposed that he was in his shop while the accused/petitioners attacked the shop of the informants. The informant Abdul Jalil was restrained and assaulted by the accused/petitioners. They dispossessed him of the shop. But this P. W3 is the own brother of the informant P.W1. P.W4 Barik Ali, deposed that the occurrence took place in the shop of Abdul Jalil and upon hearing the hulla, he came to the place of occurrence and saw Matia and Monai quarrelling with informant Abdul Jalil and found him lying on the ground. This is a related witness as he is the maternal uncle of the informant P.W1. They are all related and interested witnesses. P.W5, Smt. Rezia Begum stated in her evidence that informant Jalil was attacked in his shop by the accused persons. She also categorically stated that Matiur Rahman hit Abdul Jalil with a rod. This P.W5 is the wife of informant P.W1.

It is noteworthy that no crime weapon like lathi, rod, dagger etc. used by the accused/ persons was seized by the I.O. during investigation.

It is noteworthy that the incident took place at around 9.3010.00 AM on 4.8.2000 at a public place. The prosecution did not examine any independent witness from the locality who saw the incident. P.Ws. 3, 4 and 5 who deposed before the court corroborated the evidence of P.W1 and P.W2, but as stated earlier they are all closely related and interested witnesses. The prosecution could not offer any reason for non examining any independent witness to prove the charge. It was quite possible on the part of the prosecution to cite names of some independent witnesses of the locality as the incident took place in the morning between 9.30AM and 10.00 A.M. From the record, it is found that the I.O. did not bother to examine, interrogate or record the statements of independent witnesses during investigation. It is simply unbelievable that the I.O. could not find any independent witnesses except the aforesaid related, interested and partisan witnesses. He made no attempt to collect further information and material by examining the local witnesses during investigation of the case.

It is an admitted position that the evidence of the aforesaid PW1 to 5 has not been corroborated by any evidence of independent witness. In absence of corroborated evidence of independent witness there is always a risk in awarding conviction and sentence based on uncorroborated evidence of interested and partisan witnesses.

Evidence on record has established that a civil dispute was pending between the informants and the accused persons over the shop where the alleged incident took place.

In such a situation, parties are usually prone to making allegation and counter allegation against each other. In such cases, the court has to be careful in awarding the conviction and sentence. There is no rule that the evidence of related, interested or partisan witnesses should be disbelieved and no conviction can be awarded. It depends on the facts and circumstances of a given case. There may be some cases where no independent witness could be found by the prosecution. On the other hand, there may be cases where independent witnesses are available but the IO and for that matter, the prosecution has to make attempt to examine the available independent witnesses. In the present case, as discussed earlier, independent witnesses were available but the I.O. made no endeavour to reach the independent witnesses.

Following the above discussions, I hold that the learned courts below committed error in convicting the accused/petitioners based on the evidence of interested and partisan witnesses without seeking corroboration from independent witness. I therefore, hold that the charge could not be established by the prosecution beyond reasonable doubt.

In view of the above, the impugned conviction and sentence as recorded by the learned trial court and upheld by the learned appellate court below are liable to be set aside and quashed. It is ordered accordingly. The convict/petitioners are acquitted hereby on benefit of doubt. The petition stands allowed. The bail bonds stand discharged.

Return the LCR forthwith.