Salem Uddin Laskar @ Salim Uddin Laskar v. The State of Assam

Page No.# 1/5 GAHC010096192022

THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : I.A.(Crl.)/239/2022 CHANDU MIA LASKAR @ CHANDU AND ANR S/O LATE KUTI MIA LASKAR VILLAGE KULICHERRA, PS DHOLAI, DIST CACHAR, ASSAM 2: BATAL MIA @ BOTOL S/O LATE KAMAL UDDIN LASKAR VILLAGE KULICHERRA PS DHOLAI DIST CACHAR ASSA VERSUS THE STATE OF ASSAM REPRESENTED BY PP ASSAM 2:SIMANTINI BARMAN W/O LATE DHANSINGH BARMAN R/O VILL KATLICHERRA PO JAMALPUR PIN 788120 PS DHOLAI DIST CACHA Advocate for the Petitioner : MR H R A CHOUDHURY Advocate for the Respondent : PP, ASSAM Linked Case : I.A.(Crl.)/244/2022 PageoNo.#o2/5 SALEMoUDDINoLASKARo@oSALIMoUDDINoLASKAR S/OoLATEoSIRAFoALIoLASKAR oVILLAGEoKULICHERRA.oPSoDHOLAI LoDISToCACHAR oASSAM oVERSUS THEoSTATEoOFoASSAM REPRESENTEDoBYoPPoASSAM 2:SIMANTINIoBARMAN W/OoLATEoDHANSINGHoBARMAN oR/OoVILLoKATLICHERRA oPOoJAMALPUR oPINo788120 PSoDHOLAI oDISToCACHAR o------------ oAdvocateoforo:oMRoHoRoAoCHOUDHURY Advocateoforo:oPP oASSAMoappearingoforoTHEoSTATEoOFoASSAM ooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooo ::kBEFOREo::k HON'BLEkMR.kJUSTICEkMICHAELk?OTHANKHUMA HON'BLEkMR.kJUSTICEkPARTHIVJYOTIkSAIKIA o kOkkkRkkkDkkkEkkkR o

17.02.2023 (Michael Zothankhuma, J) o Heard Mr. A. Ahmed, the learned counsel appearing for the applicants in IA(Crl.)/239/2022 and IA(Crl.)/244/2022. Also heardo Ms. S. Jahan, the learned Addl. Public Prosecutor, Assam representing the State in both the cases. Page No.# 3/5 The above two applications have been made for suspending the sentence imposed upon the applicants in view of their conviction under Sections 148/448/302 read with Section 149 of the IPC pursuant to the judgment and order dated 23.03.2022 passed by the court of the Addl. Sessions Judge, FTC at Cachar, Silchar in Sessions Case No.105/2011. The applicants' counsel submits that the applicants' names were not mentioned in the FIR nor in the charge sheet. However, due to the evidence of prosecution witnesses who had named the applicants, the applicants along with one Md. Jalal Ahmed Ahmed Mazumdar, were arrayed as accused persons before the trial court under Section 319 CrPC vide order dated 28.08.2014 passed by the learned Trial Court. While the applicants herein participated in the trial proceeding, Md. Jalal Ahmed Ahmed Mazumdar filed Criminal Petition No.160/2014, challenging the order of arraignment. This Court by order dated

04.07.2014 disposed of the Criminal Petition No.160/2014, by setting aside the order of arraignment of the accused dated 28.08.2014. The applicants' counsel submits that the applicants would also have been given the same order if they had approached this Court, by challenging the order dated 28.08.2014 arraigning them as accused. However, due to poverty, the applicants could not approach this Court. The applicants' counsel submits that there is no mention of the applicants in the evidence of the accused, to the effect that they had assaulted the deceased, except for the applicant Botol Miya @ Botol. He submits that only one witness i.e. PW-6 has identified Botol Miya @ Botol as one of the persons who assaulted the deceased, amongst the large Page No.# 4/5 crowd of 200 to 300 persons. As such, the learned Trial Court could not have made any finding convicting the applicants herein, and specifically Botol Miya @ Botol in terms of the judgment of the Apex Court in Binay Kumar Singh & Ors. –vs-State of Bihar, reported in (1997) 1 SCC 283. He, accordingly, submits that the sentence imposed upon the applicants should be suspended and they should be released on bail. Ms. S. Jahan, the learned Addl. Public Prosecutor, on the other hand, submits that the evidence of PW-1 and PW-3 clearly identifies the applicants Chandu Miya Laskar @ Chandu and Botol Miya @ Botol as the persons who had assaulted the deceased. Further, PW-5 and PW-7 have also identified Botol as one of the assaulters. She also submits that PW-2 had identified Salem Uddin Laskar @ Salim Uddin Laskar, the applicant in IA(Crl.)/244/2022 as one of the assaulters of the deceased. She, thus, submits that as there was a prima facie case against the applicants and as they were a part of the unlawful assembly, their applications should be dismissed. We have heard the learned counsels for the parties. In the case of Binay Kumar Singh & Ors. (supra), the Apex Court has held that there is no rule of evidence that no conviction can be based unless a certain minimum number of witnesses have identified a particular accused as member of the unlawful assembly. Even the testimony of one single witness if wholly reliable, is sufficient to establish the identification of an accused as a member of an unlawful assembly. The Apex Court further held that when the size of the unlawful assembly is quite large and where many persons would have witnessed the incident, Page No.# 5/5 it would be a prudent exercise to insist on at least two reliable witnesses, to vouchsafe the identification of an accused as a participant. As can be seen from the decision of the Apex Court in the above case, the evidence of one single witness, if wholly reliable, is sufficient to establish the identification of a member of an unlawful assembly and it is not imperative that there should be at least two witnesses. The preference given by Apex Court in the above case is only by way of abundant caution and does not mean that the identification of an accused by only one witness would be fatal to the prosecution. In the present case, as there has been identification of all the three applicants pertaining to the above two applications, we are of the view that the applications for suspending the sentence and granting bail cannot be allowed at this stage, keeping in view the nature and gravity of the offence. The observations made herein shall not be regarded as a finding on the merits of the case during the hearing of the appeal. Both the Interlocutory Applications are accordingly rejected.

JUDGE JUDGE Comparing Assistant