LexABDUL GAFUR & ORS versus THE STATE OF ASSAM
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y: ._J ABDUL GAFUR & ORS. A v. THE ST ATE OF ASSAM DECEMBER 6, 2007 [DR. ARIJIT PASAYAT AND D.K. JAIN, JJ.] B • . , Penal Code, 1860-ss. 395, 397 and 354-Prosecution under- Accused were known of the victims-Animosity between the partied- Evidence of one of the witnesses contrary to medical evidence-On c telephonic il?formation, during commission of the offence, miscreants were mentioned as strangers-Conviction by trial Court-Confirmed by High Court-On appeal, held: Accused are entitled to be acquitted, in view of infirmities in the background of animosity between the parties-Order of High Court was on surmises and conjectures. D ~ 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 of the female members. During the course E 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 of the house. Thereafter, FIR was lodged. Three of the accused were declared to be proclaimed absconders. The accused who faced trial were convicted u/s 395 and 397 IPC. Two of the accused were additionally convicted u/s 354 IPC. F -1 The conviction was based on evidence of PWs 1, 2, 3, 5 and 8. High Court dismissed the appeal, upholding the conviction. Hence the present appeal. Allowing the appeal, the Court G 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 1031 H 1032 SUPREME COURT REPORTS [2007] 12 S.C.R. A 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 B evidence. Significantly, on consideration of the evidence of PW 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 c 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) D 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 1 who was member of the family. In the information given it was E 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 of enmity and ~ there was no reason as to why dignity of two young girls would be F 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. G 1675 of2007. From the final Judgment and Order dated 12.5.2006 of the Gauhati " High Court in Criminal Appeal No. 201 of 1998. ' . H.L. Agrawal, Azim H. Laskar, Anand and Abhijit Sengupta for the H Appellants. ··~ \ ABDULGAFURv. STATE[PASAYAT,J.] 1033 ,,_, Avijit Roy (for Mis Corporate Law Group) for the Respondent. A The Judgment of the 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 B 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 c Gafur, Hokoi Mian, Najir Ali, Sayed Ali, Latif Ali, Aklas Mian, Ashu M
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