Nazar Ali And Anr vs State Of Assam

Heard Ms. B. Sarma, learned Amicus Curiae for and on behalf of the appellants and Mr. B. Das, learned Additional Public Prosecutor, Assam, for the respondent State.

The present appeal has been preferred against the judgement and order dated 06.08.2010 passed by the learned Additional Sessions Judge (FTC), Barpeta in Sessions Case No.187/2007 whereby the appellants were convicted under Section 395 IPC and sentenced them to suffer rigorous imprisonment for 5 years and to pay fine of Rs.2,000/- each, in default further simple imprisonment for 2 months.

The prosecution case in brief is that on 23.04.2004 at midnight (1:15 AM) the accused persons (total 5 in numbers) entered into the house of one Md. Anser Ali with weapons and by showing pistol and dagger forcibly taken away Rs.11,500/- from the possession of Anser Ali causing injury to him as well as his younger brother. One of the dacoits namely, Nazer Ali could be apprehended by Anser Ali after chasing him and he was handed over to police. On the next day i.e. 24.04.2004, an FIR was lodged before the Officer-in-Charge, Sorbhog Police Station narrating all the facts.

On the basis of the FIR, Sarbhog PS Case No.92/2004 was registered under Sections 395/397 IPC and police started investigation. Certain amount of arms were recovered at the instance of the accused persons and it was seized. At the conclusion of the investigation, police submitted charge-sheet against the accused persons (5 in number) including the present appellants under Section 395/397 IPC.

The accused persons faced the trial and denied the charge framed against them under the said Sections of law and claimed to be tried.

The prosecution examined 10 witnesses in support of their case and defence examined none. Plea of defence is of total denial. At the conclusion of trial, the learned trial court found and hold the accused-appellants guilty under Section 395 IPC and convicted them as aforesaid. Hence, the appeal.

The learned Amicus Curiae was appointed at the subsequent stage as the earlier engaged counsel did not turned up at the time of hearing.

Referring to the evidence on record, the learned Amicus Curies, Ms. B Sarma has contended that the prosecution case is doubtful so far as the identification of the accused-appellants in the darkness of night. On the other hand, it is submitted that the evidence of PW.1/informant is not consistent with the testimony of his brother/PW.7, who happens to be present with the PW.1 on the day of occurrence. That apart, there was no recovery of stolen booty from the accused-appellants to suggest their complicity with the offence, even though they are stated to be apprehended immediately after the occurrence.

Per contra, the learned Additional Public Prosecutor, Mr. D. Das, has submitted that the evidence of the informant is sufficiently corroborated by other evidence on record and other facts and circumstances. There is no force in the contention raised by the appellants in view of the apparent identification of the accused appellants by the informant whereas one of the accused-appellant, namely, Nazer Ali was apprehended by the informant immediately after the occurrence and the complicity of the other accused persons is also sufficiently proved by other evidence on record.

Having heard the rival submissions of the learned counsel for the parties, I have also carefully gone through the records.

Insofar as the informant/PW.1 is concerned, it is found that his evidence is fully corroborated by PW.5 (Saher Ali), PW.6 (Jakir Hussain), PW.7 (Rakman Ali @ Rahaman Ali). In his evidence, PW.1 has stated that on the fateful day at about midnight (1:00 AM) five accused persons entered into his house and accused Abdul Hamid and Nazer Ali were armed with weapons. One of the accused Abdul Hamid pointed pistol on his head, directing him to keep mum and for disobeying their instruction, Hamid struck him on his head. Thereafter, the accused persons entered into his room and taken away Rs.2,500/- from his pocket and Rs.9,000/- kept below the pillow. At the time while the dacoits left his house he tried to apprehend the accused Sahidul but he could not succeed and then he chased the dacoits and could apprehend accused Nazer Ali.

The evidence of PW.2 was expunged as he did not turn up to complete his evidence.

The other witnesses PW.3 (Abdul Mannan), PW.4 (Abdul Kader) and PW.9 (Jonal Ali) in their evidence stated that on the next day of occurrence, police recovered one pistol and dagger at the instance of accused Hamid as led and shown by him from the house of one Khoka where the articles were kept by Hamid and police seized the same through Exht.3 and they signed the seizure list Exth.3 respectively.

PW.5 (Saher Ali), PW.6 (Jakir Hussain) and PW.8 (Abdul Salam) were the neighbouring witnesses who arrived at the place of occurrence hearing hue and cry (dacoit, dacoit) from the house of PW.1 and they rushed to the house of PW.1 and found the daughter and brother of Anser Ali lying in injured condition and they were reported that the dacoits had assaulted them and has taken away money of Rs.11,500/-. PW.1 went out in search of the dacoits. At that time, while PW.6 was still in the house of informant, Anser Ali brought one dacoit Nazer Ali to his house whom he apprehended after chasing him after the incident and the informant reported all the incident to them.

PW.7 is the brother of PW.1 (Anser Ali) was sleeping with PW.1 on the day of occurrence and according to him, at night all of a suddenly dacoits lifted and threw him outside the house after causing injury to him, then he raised the alarm. It is his evidence that hearing his alarm neighbouring people arrived and one of the accused Nazer Ali was apprehended by his brother PW.1.

PW.10 (Pranab Kumar Saikia) is the Investigating Officer and in his evidence he has stated that on 24.04.2004 he got the information that a dacoity took place at Kalahbhanga Islampur and one dacoit was apprehended by the owner of the house and he immediately rushed to the police station and brought the dacoit and the owner of the house were brought to Barpetal Road PHC for necessary treatment. On the basis of the statement of the accused Nazer Ali, he apprehended other accused persons and also recovered dagger and a handmade revolver including 5 rounds of cartridges from the possession of accused Mujammil. Thereafter, he brought the accused persons to the police station. Exht.1 is the FIR and Exht.1(2) is the signature of of the Officer-in-Charge, Sarbhog Police Station. Exht.2 is the seizure list and Exht.2(2) is his signature. Exht.3 is another seizure list and Exht.3(3) is his signature. Exht.4 is the another seizure list and Exht.4(2) is his signature. Exht.5 is the sketch map and Exht.5(1) is his signature. Exht.6 is the charge-sheet and Exht.6(1) is his signature. In cross examination, he categorically stated that on the basis of GD Entry, he seized the material in question but did not find any materials from the possession of accused Nazer Ali and one revolver and one dagger was recovered from the house of the accused Hamid. He denied the defence suggestion that Hamid did not produce any material before him nor any material was seized from him. He further stated in his cross examination that except Nazer Ali, informant did not mention the name of other accused persons in the FIR.

Now in the instant case although there was no recovery of stolen money from the possession of the accused persons but as has been discussed above, certain amount of ammunition used in the commission of the offence was recovered at the instance of accused Hamid Ali and accused Nazer Ali, who was apprehended by the PW.1/informant was handed over to the police. Although the complicity of accused persons with proper identification is challenged but complicity of the present two appellants are sufficiently proved by the prosecution by cogent and convincing evidence. There appears no any material omission and contradiction for any witness to discredit the prosecution case. Neither there is any enmity or hostile relation between the parties for false implication of the accused-appellants. Except giving certain suggestions to the witnesses, the defence failed to scatter the evidence on record. On the other hand, the positive evidence of the informant supported by other witnesses and the facts and circumstances, unerringly pointed out the complicity of the accused-appellants with the offence alleged. The learned trial court, however, acquitted three other accused due to lack of identification. So said aspect will not come at this stage.

The learned trial court has duly appreciated the evidence on record while arriving at the guilt of the accused-appellants which called for no interference. The offence itself is a serious one having serious impact in the society and was committed in a pre-planned manner at the dead hours of the night, causing certain injuries to the informant and his family. There appears no any illegality in the judgment of conviction and sentence rendered by the trial court.

Appeal is, accordingly dismissed. Appellants will surrender before the trial court to serve the sentence.

Appreciating the assistance rendered by the learned Amicus Curiae, Ms. B. Sarma, learned counsel, while conducting the appeal, Gauhati High Court Legal Services Authority is hereby directed to provide an amount of Rs.7,000/- (Seven Thousands) only as her professional fees.

Send down the LCR.