Decided on January 24,2018

Md. Abu Zafar Appellant
STATE OF ASSAM And ANR. Respondents


N.SAILO,J. - (1.) AND ORDER This criminal appeal is filed by the accused convict Abu Jaffar (the appellant) against the Judgment dated 09.03.2004 passed by the learned Sessions Judge, Dhubri in Sessions Case No.106 of 2002 convicting the appellant and another co-accused under section 341/302/34 of the IPC and sentencing them to imprisonment for life with a fine of Rs. 2000/- each and in default, a further rigorous imprisonment for one year. It may be noticed that although the judgment was passed on 09.03.2004, the appellant on account of his illiteracy claimed lack of knowledge that an appeal could be preferred while in custody. Therefore, having come to learn the same belatedly, he submitted an application for legal aid before the jail authorities which was then forwarded to the High Court Legal Aid Committee on 19.12.2013. Thereafter, the appellant upon being given legal aid counsel, the instant appeal was filed with a separate application for condoning 4189 days delay in preferring the appeal. The application registered as I.A. No.776 of 2016 was allowed vide order dated 02.03.2016 and that is how, the appeal has now come up for consideration.
(2.) Ms. R. Dutta the learned counsel appears for the appellant as a Legal Aid Counsel while Mr. H Sharma, the learned Additional Public Prosecutor, Assam appears for the State. Ms. R Dutta at the outset submits that as the appellant is languishing in jail for the last 13 years and 10 months now, the appeal should be heard expeditiously. Mr. H Sharma on the other hand submits that as the petitioner has already served the aforesaid term in jail, he may as well submit an application for remission of the sentence before the appropriate Government under section 432/433/433-A of the Cr.P.C. However, having regard to the fact that the question of seeking remission from the appropriate Government is a separate and independent issue which would remain open to the appellant even if the appeal is rejected, we decide to hear the appeal on merit.
(3.) The case of the prosecution in brief is that Md. Afjal Hoque (cousin brother of the deceased) lodged an FIR on 17.01.2001 before the Officer-in-charge, Mancachar Police Station as a result of which, Mancachar P.S. Case No.10 of 2001 under section 341/302/34 of the IPC was registered and investigated. The contents of the FIR may be reproduced below for ready perusal: "To, The Officer-In-Charge, Mankachar Police Station. Dated-Jordanga Pt.I, the 17th January, 2001. Subject-Ejahar. Complainant-Md. Afjal Haque, Son of Late Bainuddin Sheikh, R/o-. Jordanga Part-I, P.S.- Mankachar, Dist.- Dhubri (Assam) Sir, Humble submission is that at about 4 p.m. Today i.e. on 17.01.2001, the below mentioned accused persons, armed with dao, dagger intercepted my younger brother Abdul Ziad all on a sudden on the village road in front of my house whereupon accused Abu Zafar grabbed hold of my younger brother Abdul Ziad and accused Mokbul Hussain killed my younger brother by stabbing him in the chest with dagger. Thereafter the accused ran away. There are many witnesses to the said incident. I, therefore, pray to you to investigate into the incident take necessary action as per law and oblige. The name of the deceased-Abdul Ziad, aged about 25 years, son of Late Hamdu Sheikh, R/o. Jordanga Part-I. The accused persons- 1. Mokbul Hussain, Son of-Late Mahej Sheikh, R/o. Jordanga Part-I, P.S.-Mankachar, Dist-Dhubri. 2. Abu Zafar, Son of Habibar Rahman, R/o. Jordanga Part-2, P.S.- Mankachar, Dist-Dhubri. align="CENTER"Yours faithfullyL.T.I. of Md. Afjal Haque.";

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