Mustak Ali @ Golap Mostafa @ Golam ... vs The State Of Assam And Anr on 15 June, 2023

[Cites 14, Cited by 0]

Gauhati High Court

Mustak Ali @ Golap Mostafa @ Golam ... vs The State Of Assam And Anr on 15 June, 2023

1. Heard Mr. B.K. Mahajan, learned counsel for the appellant in Criminal Appeal No.82/2018 and Mr. A.M. Bora, learned Senior Counsel for the appellants in Criminal Appeal No.85/2018 assisted by Mr. A. Ganguly. Ms. S. Jahan, learned Additional Public Prosecutor appears for the State in both the criminal appeals.

2. The appeals have been filed against the impugned common judgment dated 16.02.2018 passed by the Sessions Judge, Barpeta, Assam in Sessions Case No.131/2014 and Sessions Case No.347/2015. The appellants are aggrieved by the impugned judgement dated 16.02.2018, by which the appellants herein have been convicted under Section 302/149 IPC and have been sentenced to undergo life imprisonment with a fine of Rs.10,000/- each, in default to undergo rigorous imprisonment 3 (three) months. They have also been convicted under Section 147 IPC and have been sentenced to pay a fine of Rs.3,000/- each, in default to undergo rigorous imprisonment for 1 (one) Page No.# 4/10 month. They have also been convicted under Section 148 IPC and sentenced to pay a fine of Rs.5,000/- each, in default to undergo rigorous imprisonment for 4 (four) months each. They have also been convicted under Section 323 IPC and sentenced to pay a fine of Rs.500/- each, in default to undergo rigorous imprisonment for 15 (fifteen) days.

3. The brief facts of the case is that pursuant to an FIR dated 16.09.2010 submitted by one Md. Bahadur Ali against the appellants, Sarthebari P.S. Case No.180/2010 under Section 147/148/149/341/325/326/354/336/506 IPC was registered. After filing of a charge-sheet in the above said Sarthebari P.S. Case No.180/2010, in Sessions Case No.131/2014, the appellants were found guilty and convicted of the charges framed and sentenced accordingly.

4. On the other hand, Sarthebari P.S. Case No.179/2010 under Section 147/148/149/341/325/326 IPC had been registered on the basis of an FIR submitted by one Siraj Bhuyan @ Shirajul Haque Bhuyan, who is the appellant no.2 in Criminal Appeal No.85/2018. After the charge-sheet had been filed in the cross-case i.e., Sessions Case No.347/2015, arising out of Sarthebari P.S. Case No.179/2010, the learned Trial Court had by the impugned common judgment dated 16.02.2018 acquitted all the accused persons in Sessions Case No.347/2015.

5. The learned counsels for the appellants submit that the disposal of Sessions Case No.131/2014 and Sessions Case No.347/2015 by a common judgment dated 16.02.2018, by relying on the evidence recorded by the Page No.# 5/10 prosecution witnesses in relation to both the cases and thereby convicting the accused persons in Sessions Case No.131/2014, while acquitting the accused persons in Sessions Case No.347/2015 should be set aside, inasmuch as, the same is not in accordance with the law laid down by the Apex Court in the case of Nathi Lal & Others vs. State of U.P. & Another, reported in 1990 (Supp) SCC 145, State of M.P. vs. Mishrilal (Dead) & Others, reported in (2003) 9 SCC 426. They submit that in terms of the judgments of the Apex Court as stated above, the learned Trial Court could not have considered the evidences recorded for both the cases, while making the impugned common judgment pertaining to two cross-cases.

6. Ms. S. Jahan, learned Additional Public Prosecutor, Assam also submits that the learned Trial Court erred in making a common judgment, on the basis of the same evidences recorded by the learned Trial Court pertaining to two cross-cases, i.e. Sessions Case No.131/2014 and Sessions Case No.347/2015. She further submits that in terms of the judgment of the Apex Court in A.T. Mydeen & Others vs. The Assistant Commissioner, Customs Department & Others, reported in 2021(4) Crimes 418 (SC), which is on slightly different facts, the matter would have to be remanded back to the learned Trial Court, for taking fresh evidence in respect of the common prosecution witnesses in both the cases and direct the learned Trial Court to pass two judgments, one for each cross-case.

7. We have heard the learned Counsels for the parties.

Page No.# 6/10

8. A perusal of the impugned judgment dated 16.02.2018 shows that the learned Trial Court had disposed of Sessions Case No.131/2014 and Sessions Case No.347/2015 by the same impugned common judgment. By the common judgment, the accused persons in Sessions Case No.131/2014 have been convicted of the charges as stated in the foregoing paragraphs, while the accused persons in Sessions Case No.347/2015 have been acquitted of the charges framed against them. The two cross-cases have been registered on the basis of two different FIRs submitted by different persons. A perusal of the evidence relied upon by the learned Trial Court for disposing of Sessions Case No.131/2014 and Sessions Case No.347/2015, shows that the learned Trial Court did not record separate evidences in respect of the two separate session Court cases, though there were common witnesses relating to both the cross- cases. For example, PW-2, PW-21, PW-23 and PW-24 in Sessions Case No.131/2014 were also PW-2, PW-8, PW-9 and PW-10 in Sessions Case No.347/2015. Paragraph 32 of the impugned judgment dated 16.02.2028, amongst others, also shows that the evidence recorded by PW-23 in Sessions Case No.131/2014 (who is PW-9 in Sessions Case No.347/2015) had been relied upon by the learned Trial Court in considering the question of guilt of the appellants herein in the impugned common judgment. Also a perusal of the impugned judgment at page 38 shows that the evidence of PW-2 and PW-3, who were witnesses in Sessions Case No.347/2015 were considered to adjudicate the outcome of the case in Sessions Case No.131/2014.

9. A perusal of the Paper Book and records also shows that no separate evidence has been recorded by the learned Trial Court pertaining to common witnesses in relation to a particular case, but was made in relation to both the Page No.# 7/10 cross-cases.

10. In the case of Nathi Lal (supra), the Hon'ble Apex Court has held that the fair procedure to be adopted where there are cross cases is to direct the learned Judge to try both the cross cases one after the other. After the recording of evidence in one case is completed, he must hear the arguments but he must reserve the judgment. Thereafter he must proceed to hear the cross case and after recording all the evidence, he must hear the arguments but reserve the judgment in that case. The same learned Judge must thereafter dispose of the matters by two separate judgments. In deciding each of the cases, he can rely only on the evidence recorded in that particular case. The evidence recorded in the cross case cannot be looked into. Nor can the judge be influenced by whatever is argued in the cross case. Each case must be decided on the basis of the evidence which has been placed on record in that particular case, without being influenced in any manner by the evidence or arguments urged in the cross case. But both the judgments must be pronounced by the same learned Judge one after the other.

11. The judgment of the Hon'ble Apex Court in Nathi Lal (supra) was also considered and cited by the Hon'ble Apex Court in the case of State of M.P. vs. Mishrilal (Dead) & Others (supra), wherein it has been stated as follows :

"This Court in Nathilal vs. State of U.P. pointed out the procedure to be followed by the Trial Court in the event of cross cases. It was observed thus:-

"2. We think that the fair procedure to adopt in a matter like the Page No.# 8/10 present where there are cross cases, is to direct that the same learned Judge must try both the cross cases one after the other. After the recording of evidence in one case is completed, he must hear the arguments but he must reserve the judgment. Thereafter he must proceed to hear the cross case and after recording all the evidence he must hear the arguments but reserve the judgment in that case. The same learned Judge must thereafter dispose of the matters by two separate judgments. In deciding each of the cases, he can rely only on the evidence recorded in that particular case. The evidence recorded in the cross case cannot be looked into. Nor can the judge be influenced by whatever is argued in the cross case. Each case must be decided on the basis of the evidence which has been placed on record in that particular case without being influenced in any manner by the evidence or arguments urged in the cross case. But both the judgments must be pronounced by the same learned Judge one after the other."

12. In the case of A.T. Mydeen (supra), the Hon'ble Apex Court has held that each case has to be decided on it's own merit and the evidence recorded in one case cannot be used in the cross case. The only caution is both the trial should be conducted simultaneously or in the case of appeal, they should be heard simultaneously.

13. As stated earlier, a perusal of the Paper Book and the records clearly show that no separate evidence of the common witnesses had been recorded in respect of a particular case by the learned Trial Court. There are many prosecution witnesses in both the sessions cases. However, there are also a few common witnesses in both the cases, for which separate evidence was to have been recorded for each particular case. The same not having been done, the Page No.# 9/10 matter would have to be remanded back to the learned Trial Court to do the needful. Further, as per the law laid down by the Hon'ble Apex Court, the learned Trial Court will have to dispose of the two cross-cases by two separate judgments, which has not been done in this particular case.

14. Though we are of the view that the matter has to be remanded back to the learned Trial Court for disposing of the two cross-cases by two separate judgments after recording separate evidence of the common witnesses and not considering the evidence recorded in one case for adjudicating the issue in the other case, we find that the accused persons who have been acquitted in Sessions Case No.347/2015 have not been made a party in the present appeals.

15. The observations made by this Court with regard to what would be the procedure to be followed by the learned Trial Court in terms of the law laid down by the Hon'ble Apex Court would naturally require the setting aside of the impugned judgment dated 16.02.2028. As the same could cause prejudice to the accused persons, who have been acquitted in Sessions Case No.347/2015, if they are not heard prior to taking a final decision in these matters, we are of the view that notice has to be issued to the accused persons in Sessions Case No.347/2015. Accordingly, Registry is directed to issue Notice to the accused persons in Sessions Case No.347/2015, who have been acquitted of the charges framed against them pursuant to the impugned common judgment dated 16.02.2018 passed in Sessions Case No.131/2014 and Sessions Case No.347/2015.

Page No.# 10/10

16. List these matters on 24.07.2023.

                       JUDGE              JUDGE



Comparing Assistant

Unlock Advanced Research with PRISMAI

Gauhati High Court