Page No.# 1/11 GAHC010280572025 2026:GAU-AS:1227-DB THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.A./85/2018 AMIR BHUYAN @ AMIR ALI BHUYAN AND 6 ORS S/O LATE NEBAJ ALI BHUYAN 2: SIRAJ BHUYAN @ SHIRAJUL HAQUE BHUYAN S/O LATE HARMUJ ALI BHUYAN R/O FINGUA PATHAR P.S. SARTHEBARI DIST. BARPETA ASSAM. 4: NURUZ ZAMAN BHUYAN @ NUR JAMAL BHUYAN S/O AMIR ALI BHUYAN R/O FINGUA PATHAR P.S. SARTHEBARI DIST. BARPETA ASSAM. 5: TAZBAR ALI BHUYAN AND TAJIBAR ALI BHUYAN S/O LATE HARMUJ ALI BHUYAN R/O FINGUA PATHAR P.S. SARTHEBARI DIST. BARPETA ASSAM. 6: TAIJUDDIN BHUYAN S/O LATE HARMUJ ALI BHUYAN R/O FINGUA PATHAR P.S. SARTHEBARI DIST. BARPETA ASSAM. 7: SADEK ALI @ SADEK BHUYAN S/O LATE HARMUJ ALI BHUYAN R/O FINGUA PATHAR Page No.# 2/11 P.S. SARTHEBARI DIST. BARPETA ASSAM. 8: SAIJUDDIN ALI BHUYAN @ SAIJUDDIN BHUYAN S/O HARMUJ ALI BHUYAN ALL ARE R/O FINGUA PATHAR P.S. SARTHEBARI DIST. BARPETA ASSAM. VERSUS THE STATE OF ASSAM AND ANR REPRESENTED BY PP ASSAM. 2:MD. BAHADUR ALI S/O MAKSED ALI R/O FINGUA PATHAR SARTHEBARI P.S. SARTHEBARI DIST. BARPETA ASSAM. ------------ Advocate for : MR. B K MAHAJAN Advocate for : PP ASSAM appearing for THE STATE OF ASSAM AND ANR Linked Case : Crl.A./82/2018 MUSTAK ALI @ GOLAP MOSTAFA @ GOLAM MOSTAFA S/O KARIM ALI R/O FINGUA PATHAR P.S. SARTHEBARI DIST. BARPETA ASSAM. VERSUS THE STATE OF ASSAM AND ANR S/O MAKSED ALI R/O FINGUA PATHAR SARTHEBARI P.S. SARTHEBARI Page No.# 3/11 DIST. BARPETA ASSAM PIN 781307 2:MD. BAHADUR ALI S/O MAKSED ALI R/O FINGUA PATHAR SARTHEBARI P.S. SARTHEBARI DIST. BARPETA ASSAM PIN 781307 ------------ Advocate for : MR. B K MAHAJAN Advocate for : PP ASSAM appearing for THE STATE OF ASSAM AND ANR Linked Case : I.A.(Crl.)/1392/2025 SAIJUDDIN ALI BHUYAN @ SAIJUDDIN BHUYAN S/O HARMUJ ALI BHUYAN, R/O FINGUA PATHAR, P.S.- SARTHEBARI, DIST.- BARPETA, ASSAM. VERSUS THE STATE OF ASSAM AND ANR REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM 2:MD. BAHADUR ALI S/O MAKSED ALI R/O FINGUA PATHAR SARTHEBARI P.S.- SARTHEBARI DIST.- BARPETA ASSAM Advocate for the Petitioner : MR. A M BORA, MR. V A CHOWDHURY Advocate for the Respondent : PP, ASSAM, MR S RAHMAN(R-2),MR S M ABDULLAH P(R- 2),MR R ISLAM(R-2),MS F HUSSAIN(R-2) Page No.# 4/11 BEFORE HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA HONOURABLE MR. JUSTICE KAUSHIK GOSWAMI ORDER Date : 30-01-2026 (M. Zothankhuma, J) Heard Mr. V. A. Chowdhury, learned counsel for the appellant Nos. 1 to 4, 6 & 7 and Mr. A. Ganguly, learned counsel for the appellant No. 5 in Criminal Appeal No. 85/2018. Mr. D. Bora, learned counsel appears for the appellant in Criminal Appeal No. 82/2018. Ms. B. Bhuyan, learned Senior counsel and Additional Public Prosecutor appears for the State, assisted by Mr. R. Saloi, learned counsel. Mr. A. Haque, learned counsel appears for the 5 acquitted co- accused persons and Mr. J. A. Sikdar, learned counsel appears for the informant in Sessions Case No. 131/2014. No one appears for the acquitted accused persons in respect of Sessions Case No. 347/2015, despite service of notice upon them. 2. Sessions Case No. 131/2014 has arisen out of Sarthebari P.S. Case No. 180/2010, wherein there were 13 accused persons. Out of the 13 accused persons, 5 of them have been acquitted by the learned Trial Court, while the remaining 8 convicted persons have filed the present Crl. App. 82/2018 and Crl. App. 85/2018. 3. The cross-criminal case, that is Sessions Case No. 347/2015, has arisen out of Sarthebari P.S. Case No. 179/2012, wherein all the 4 accused persons therein have been acquitted by the learned Trial Court. Page No.# 5/11 4. 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) 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. 5. 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 under Section 147, 148, 149, 323 and under Section 302 IPC and sentenced accordingly. 6. 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 Page No.# 6/11 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. 7. 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 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. 8. Ms. B. Bhuyan, learned Additional Public Prosecutor, Assam also admits 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 submits that in terms of the judgment of the Apex Court in A.T. Mydeen & Others vs. Commissioner of Customs, reported in (2022) 14 SCC 392, 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 Page No.# 7/11 prosecution witnesses in both the cases and direct the learned Trial Court to pass two judgments, one for each cross-case. 9. We have heard the learned Counsels for the parties. 10. 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 and that there were common witnesses relating to both the cross- cases. For example, the following Prosecution Witnesses, i.e., 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 Page No.# 8/11 Case No.131/2014. 11. The judgment of the Hon’ble Supreme Court in Nathi Lal (supra) was also considered and cited by the Hon’ble Supreme 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 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. Page No.# 9/11 13. As stated earlier, a perusal of the Paper Book and the records clearly shows that no separate evidence of the common witnesses had been recorded in respect of a particular/individual case by the learned Trial Court. There are many prosecution witnesses in both the sessions cases, who are 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 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 Supreme Court, the learned Trial Court will have to dispose of the two cross-cases by two separate judgments, on the basis of the evidence recorded in respect of each particular sessions case, which has not been done. 14. As we were of the view that the matter had to be remanded back to the learned Trial Court for disposing of the two cross-cases by two separate judgments, after recording separate evidences of the common witnesses and not considering the evidence recorded in one case for adjudicating the issue in the other case, the accused persons who had been acquitted in Sessions Case No.347/2015 and who are not parties in the present appeals, should be made aware of the present proceedings, as they could be affected by the order passed in this appeal. 15. Accordingly, notices had been issued to the 4 acquitted persons, namely, 1. Abu Bakkar Sidique, 2. Mobarak Ali, 3. Taijuddin and 4. Bilat Ali in Sessions Case No. 347/2015, through the learned Trial Court, as they would have to face the trial afresh as the cases would have to be tried de-novo. As per the report submitted by the office of the District & Sessions Judge, Barpeta in the month of December, 2025, notice was thereafter served upon the 4 acquitted persons. Page No.# 10/11 However, no one appears for the 4 acquitted persons. 16. In view of notices having been served on the 4 acquitted accused persons, who were co-accused persons in Sessions Case No. 347/2015, we are of the view that they are aware of the present appeal proceedings. For all the reasons stated in the fore-going paragraphs, we hereby remand the case back to the learned Trial Court for having de-novo trials in relation to Sessions Case No. 347/2015 and Sessions Case No. 131/2014. The learned Trial Court shall ensure that the evidence in both the Sessions Court cases are recorded separately and the final judgment is made on the basis of the evidence recorded in each of the Sessions Court cases. 17. The learned Trial Court shall restart the criminal proceedings de-novo, after issuing notice to the acquitted co-accused persons in Sessions Case No. 347/2015. However, in respect of the other accused persons in Sessions Case No. 131/2014, who have been represented in these appeals today, they are directed to appear before the learned Trial Court on 26.02.2026. As such, no notice need to be issued upon the present appellants and the respondents, who are represented here in relation to Sessions Case No. 131/2014. While having the de- novo trial, the learned Trial Court should bear in mind the provisions of Section 205 and 299 Cr.P.C. 18. Consequently, the impugned judgment dated 16.02.2018 passed in Sessions Case No. 131/2014 and Sessions Case No. 347/2015 is hereby set aside. 19. On considering the bail application submitted by Saijuddin Ali Bhuyan, who has been convicted by the impugned judgment, we find that he is the only remaining convicted person, who is still in jail. As said Saijuddin Ali Bhuyan has Page No.# 11/11 been in jail for the last 7 years 11 months 14 days and keeping in view the fact that sometime would be required for completing the de-novo trial in the learned Trial Court, we are of the view that the said Saijuddin Ali Bhuyan should be released on bail. Further, he was on bail during the trial proceedings before the learned Trial Court earlier. 20. The objection of the learned Addl. PP to the prayer for bail is noted. However, as indicated above, the convict Saijuddin Ali Bhuyan, being the only person remaining in jail for the last approximately 8 years, bail should be granted to him. 21. Accordingly, Saijuddin Ali Bhuyan is to be released on bail, on a bail bond of Rs.50,000/- with one surety of like amount, to the satisfaction of the learned Trial Court. The said Saijuddin Ali Bhuyan shall appear before the learned Trial Court as and when directed and shall not try to influence the witnesses while on bail. He is also directed to appear before the learned Trial Court on 26.02.2026. 22. Send back the TCR. 23. Crl. Appl. Nos. 85/2018 & 82/2018 and I.A.(Crl.) 1392/2025 are accordingly disposed of. JUDGE JUDGE Comparing Assistant