Holding

The accused are entitled to acquittal as the prosecution case is riddled with inconsistencies, contradictions to medical evidence, and was based on surmise rather than proof.

Summary

The appellants, including Abdul Gafur, were convicted by a trial court and the Gauhati High Court for dacoity, robbery and outraging modesty based on the testimony of several witnesses who claimed the accused entered the Gupta household, assaulted the family, looted gold ornaments and committed rape. The prosecution’s case relied on a telephonic report from a family member, but the Supreme Court found that the informant was not a stranger and that the accused were neighbours, raising doubts about motive and credibility. The Court noted contradictions between the testimony of PW‑4 and the medical evidence, and observed that the High Court had accepted the prosecution’s version without proper analysis, relying on surmise. It also highlighted procedural infirmities such as the delayed FIR and the erroneous finding that one accused was absconding when he had been arrested. Consequently, the Supreme Court held that the evidence was insufficient and the convictions could not stand, ordering the acquittal of all appellants.

Issues considered

Whether the evidence presented by the prosecution, including witness testimonies and medical reports, is sufficient to sustain convictions under IPC sections 395, 397 and 354.
Whether the animosity between the parties and the fact that the accused were neighbours affect the credibility of the prosecution’s version.
Whether the delay in lodging the FIR and the alleged absconding status of an accused undermine the prosecution case.
Whether the High Court erred in its assessment of the evidence and in upholding the trial court’s convictions.

Legislation cited

Indian Penal Code, 1860s. 354, s. 395, s. 397

Subjects

dacoityrobberyrapeacquittalevidentiary inconsistencyanimus between partiesIndian Penal Codecriminal conviction reversal

Judgment

y: ._J ABDUL GAFUR & ORS. A
v.
THE STATE OF ASSAM

DECEMBER 6, 2007
B
•. , [DR. ARIJIT PASAYAT AND D.K. JAIN, JJ.]

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 ofthe 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 ofHigh 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
of the occurrence one of the members of the family, informed the E
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
-1 397 IPC. Two of the accused were additionally convicted u/s 354 IPC. F
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
evidence. Significantly, on consideration of the evidence of PW 4, it
B 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
First Information Report was lodged. High Court has merely
c 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
stated that some stranger had committed decoity. The accused
E
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
put at stake by alleging rape. It is to be noted that in fact rape was
F
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 Mian
and Tabai Mian being armed with deadly weapons namely, dao, lathis,
dagger etc. surrounded the house of Satyendra Nath Gupta at village
Brahmanshashan, assaulted him, his wife Smti Hemamalini Gupta, his son
D
-- ... Subhendu Gupta, his eldest daughter A1~ali Gupta and his relatives Sushi!
Chanda causing grievous injuries to them, tied them up and then looted
gold ornaments, namely, chains, bangles, ear rillgs etc. valued at
Rs.42,950.00 from the possession of the female inmates of the house,
namely, Hemamalini Gupta, Anjali Gupta, Mitra Gupta, Rubi Gupta and
Nell Gupta. That apart two of the accused persons, namely, Hokol Mian E
and Aklas Uddin committed rape respectively on Mitra Gupta and Rubi
Gupta and decamped with the looted booties. During the course of
occurrence Sushi! Chandra Gupta the son of Satyendra Nath Gupta
informed police over telephone that decoity was being committed in the
·-~
house of Satyendra Nath Gupta and that Satyendra Nath Gupta and his F
wife were assaulted by the decoits causing grievous injuries to them. At
the Nilambazar out post a general diary vide entry no.212 at 8.15 p.m.
on the night of 11.4.1988 was recorded and on the basis of such
information enquiry was launched. Thereafter Satyendra Nath Gupta also
lodged a written Ejal1ar with police ofNilambazar out post. The Officer G
i
Incharge ofNilambazar out post sent the written ejahar to the Officer
)
•,.,.,; Incharge ofKarimganj P.S. whereupon the Officer Incharge ofKarinlganj
P.S. registered a case under Section 395/397/376 of the Indian Penal
Code, 1860 (in short the 'IPC'). S.I. of police T.C. Bailong after
completion of enquiry/investigation submitted charge sheet against the H
1034 SUPREME COURT REPORTS [2007] 12 S.C.R.

A accused Abdul Gafur, Hokoi Mian, Boloi Mian, Sayed Ali, Aklas Uddin,
Najir Ali, Latif Ali, Ashu Mian and Tabai Mian for alleged commission
of offences punishable under Section 395 and 397 IPC.
The charges against the accused Najir Ali, Ashu Mian and Tabai
B Mian were proven and they were declared to be proclaimed absconders.
The case against other six accused persons, namely Abdul Gafur, Hokoi
Mian, Boloi Mian, Sayed All, Alas Uddin and Latif Ali was committed
to the Court of Sessions by learned Judicial Magistrate, 1st Class,
Karimganj.
C 4. During trial nine witnesses were examined to further the
prosecution version.
5. Placing reliance on the evidence ofwitnesses-PWs. 1, 2, 3, 5
and 8, the trial court found that accused appellant 1, 2, 3, 5 & 6 guilty of
offence punishable under Section 395 read with Section 397 IPC and
D accused appellant Nos. 3 & 5 were guilty of offence punishable under
Section 354 IPC. For the offence relatable to Section 395 read with
Section 397, each was sentenced to undergo tigorous imptisonment for
seven years and to pay a fine ofRs.2,000/-with default stipulation. For
\
-
the offence relatable to Section 354 IPC they were sentenced to rigorous
E imprisonment of one year each.
6. The convicted accused persons preferred an appeal before the
High Court. As afore-stated the High Court dismissed the appeal and
affrrmed the conviction and sentence.
F 7. In support of the appeal learned counsel for the appellant )'- -
submitted that the High Court has disposed of the appeal cryptically without
even discussing the vatious submissions made. There are also several
infirmities in the conclusions artived at.
G 8. Learned counsel for the respondent-State on the other hand
supported the judgment of the trial court and the High Court.
9. The High Court has noted as if a telephonic message was given ~
by a stranger regarding decoity. However, in evidence it has given that
the information was given not by a stranger but by Sushi} Chandra Gupta,
H PW 1. In the information given it was stated that some stranger had
_j,
\

ABDUL GAFUR v. STATE [P ASAY AT, J.] 1035

~
committed decoity. A
10. 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
.. put at stake by alleging rape. It is to be noted that in fact rape was alleged B
-i
but the Trial Court found that there was no material to substantiate the
plea of rape. The evidence is totally inconsistent and lacks credence. The
High Court's observations were clearly based on surmises and contrary
to the factual scenario. The High Court has noted that the evidence of
PWs. 1, 2, 3, 5 & 8 stand fully corroborated by the medical evidence. c
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.
To .add to the confusion, it is noted that the High Court recorded as finding
j
that appellant Abdul Gafur was absconding. As a matter of fact the
-' evidence oflnvestigating Officer (in short the 'I.O') shows that he had D
arrested Abdul Gafur on the date the First Information Report (in short
the 'FIR') was lodged. Unfortunately the 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 E
in fact law was already set on motion after the telephonic message had
been received.
11. The aforesaid infirmities in the background of admitted animosity
between the parties renders the prosecution version unacceptable. The
Trial Court and the High Court did not analyse the evidence c01rectly and F
acted on mere surmises and conjectures. That being so, the appellants
deserve to be a,quitted, which we direct.
12. Appeal is allowed. The appellants are acquitted of the charges.
They be set forth at liberty if not required in any other case. G
_,. ) K.K.T. Appeal allowed.