ABDUL SYED Vs. STATE

JUDGEMENT

(1.) Heard Mr. P. Sarma, learned Counsel for the accused Appellants. Also heard Mr. K. Munir, learned Addl. Public Prosecutor, for the State of Assam.

(2.) Both these appeals have been preferred against judgment and order dated 05.08.2002 passed by the learned Sessions Judge, Dhubri, in Sessions Case No. 78/2000 convicting the accused Appellants under Sections 448/34 IPC and 366 IPC read with 511/34 IPC and sentencing them to sufier R.I. for 5 years.

(3.) Mr. Sarma, learned Counsel appearing for the accused Appellants, at the very outset, submits that the learned trial Court did not frame any charge under Section 34 IPC against the accused Appellants and as such, any conviction recorded under Section 34 IPC against them, is unsustainable inasmuch as they were not provided opportunity to defend themselves. In other words, his submission is that conviction under this particular section without framing the charge, is a nullity in the eyes of law. The learned Counsel also submits that the charges against the accused Appellants have not been proved beyond reasonable doubt inasmuch as there are contradictions in the evidence of the eye-witnesses so far the place of occurrence is concerned. The learned Counsel has drawn the attention of the Court to the evidence of P.Ws. 1, 2 and 4, the informant, the victim girl and the mother of the victim girl, respectively. According to him, the identity of accused Appellants was not established or proved inasmuch the existence of any light at the time of occurrence or holding of the lamp by the victim girl was not brought on evidence. Even the prosecution did not seize the lamp which the victim girl was allegedly holding at the time of occurrence. Moreover, it has been submitted that allegations were brought against the accused Appellants out of grudge as the informant could not repay the amount of Rs. 6,000/- which was taken as loan from the accused Abdul Syed @ Sayed Ali.