In the light of what we intend holding in this
matter the detailed circumstances leading to the
incident need not be given. Suffice it to say, that 17
persons in all were sent for trial for offences
punishable under Section 302,323, 324 and 34 Indian
Penal Code. During the course of the trial two of the
accused Siraj Ali and Mohammed Hanif died whereas
Moniruddin defaulted and was declared to be an
absconder. The trial court on the basis of the
evidence before it convicted the remaining fourteen
accused and sentenced them to various terms of
imprisonment. The matter was thereafter brought to
this Court by way of a special leave petition by six of
the accused. The Special Leave Petition of five of
them was dismissed outright and leave was granted with
respect to only one, the present appellant.
parties with respect to his role and involvement in the
incident.
Mr. Parthiv Goswami, the learned counsel for the
appellant has argued that no role whatsoever has been
attributed to the appellant and that his case was at
par with the four accused who have been acquitted by
the High Court and he was, accordingly, entitled to the
same benefit. He has taken us through the evidence of
the five primary witnesses P.Ws. 1,3,5,8 and 10 and
also the medical evidence and submitted that the
appellant, in fact, had caused no injury to the
deceased and that the allegation of P.W. 5 that some
injury had been caused to one of the witnesses was also
unsubstantiated on record.
Mr. Avijit Roy, the learned counsel for the
State of Assam has, however, pointed out that the
appellant had been roped in with the aid of Section 149
IPC as he had been present when the incident happened
and as he had along with others had way laid the
deceased and the injured witnesses when they were
returning home, the common object of the assembly
appeared to have been made out. He has also submitted
that P.W.1 had a given specific role to the appellant
inasmuch that he had caused an injury to the deceased
on his neck with a dao.
parties. P.W. 1 Miya Box undoubtedly did say that the
appellant had caused an injury with a dao on the neck
of the deceased, Jha Box. The medical evidence,
however, does not support this plea as only two
injuries, none of them on the neck, were found on the
dead body. The other three witnesses P.Ws. 3, 8 and 10
had either attributed a general role to the appellant
along with others who have been acquitted or no role
at all to the appellant in the incident.
Mr. Roy's argument with respect to the evidence
of P.W. 5 is also not worthy of belief for the reason
that he alone out of the five witnesses who have been
referred to above deposed that an injury had been
caused to one of the witnesses and he did not state
that any injury had been caused to the deceased. In
view of the ambivalent nature of the evidence and the
fact that a very large number of accused were involved
and the parties having serious animosity with each
other, we are of the opinion that Rustam Ali, the
appellant, herein ought to have been acquitted by the
High Court with the benefit of doubt. We, accordingly,
allow this appeal, set aside the conviction of the
appellant and order his acquittal.
[R.M. LODHA]
OCTOBER 07, 2009.
PART-I
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1302 OF 2009
parties.
Vide our separate reasoned order, we have
allowed the appeal and set aside the conviction of the
appellant and ordered acquittal.
It is stated by Mr. Parthiv Goswami, the learned
counsel for the appellant that the appellant is in
jail. We direct that the appellant shall be set at
liberty forthwith if not required in connection with
any other case.
The reasoned order to follow.
[R.M. LODHA]
OCTOBER 07, 2009.