1
IN THE COURT OF ADDL. SESSIONS JUDGE,(F.T.C.),CACHAR,SILCHAR.
( Criminal Appellate Jurisdiction )
(Criminal Appeal No. 18 of 2009 )
1. Sri. Badal Barman.
2. Smti. Kashina Barman.
3. Smti. Putubala Barman.
4. Sri. Nirmal Das.
5. Sri. Gayendra Chandra Das.
6. Sri. Digendra Barman.
. ……
7. Sri. Bibhuti Barman.
Appellants.
-VersusThe state of Assam.
……………...
Respondent.
Present :-Sri.S.N.Sarma. LLM, AJS
Addl.Sessions Judge,(F.T.C.),
Cachar, Silchar.
For the Appellants
For the state
:- Sri. Gautom Roy. . (Advocate.)
:- Sri. P. Deb.
(Addl. P.P.)
Date of Argument :- 27/11/2014.
Date of Judgment :- 03/12/2014.
JUDGMENT
1. This Criminal Appeal is directed against the judgment and order
of conviction and sentence dated 31/08/2009 passed by Shri. S.
Khound, Ld. Chief Judicial Magistrate, Cachar, Silchar in G.R. No.
1059/1998, convicting U/S 143/447/427 I.P.C and sentencing them to
pay fine of Rs. 200/- (Rupees Two Hundred) only each i/d suffer S.I.
for 1(One ) month only U/S 143 IPC fine of Rs. 100/- (Rupees One
hundred) only each i/d suffer S.I. for 15 (Fifteen) days only U/S 447
IPC and fine of Rs. 200/- (Rupees Two Hundred) only each i/d suffer
S.I. for 1 (one) month U/S 427 IPC.
2
The prosecution story is as follows :1
2
On 03.05.1998 one Sri. Subash Chandra Das alleged that
on the same day on 03.05.98 at about 2 PM the accused being
armed with lathi, dao entered into the house campus of the
informant and damaged the boundary fencing and also cut betelnut trees, banana tree. When objected by the wife of the informant
the accused also assaulted the informant’s wife.
3.
After receipt of ejahar police registered a case vide
Dholai P.S. Case No. 97/98 U/S 447/429/354/506/34 I.P.C. and
investigation was started. After completion of investigation
submitted charge sheet against the accused persons U/S
143/447/427 IPC.
4.
The accused were examined U/S 313 Cr.P.C. and their
statements were recorded. The accused did not adduce any
evidence. They claimed to be innocent.
5. On conclusion of trial, Ld. Lower Court convicted and
sentenced the accused persons as aforesaid.
6.
Being highly aggrieved and dissatisfied with the
aforesaid judgment and order, the appellants preferred this appeal
on the following amongst the following grounds.
GROUNDS
(a) Consequent upon misreading and misconstruing the
evidence and misinterpretation of the same with reference to the
penal provision of the laws involved in the matter. Ld. CJM has
caused grant miscarriage of justice whereupon the innocent and
poor accused/ appellants have been unfortunately convicted and
sentenced.
(b) P.W.1 i.e. the informant Sri. Subash Chandra Das is also a
seizure witness. He is apparently inconsistent in his evidence in
chief with reference to his initial appraisal upon the FIR. Ext. 1
and later in his statement before the I.O. In fact, the evidence of
PW1 is a deliberate exaggeration on his part with reference to
his FIR. Ext. 1 and the statement before the IO.
© PW1 is neither an independent nor a respectable or a reliable
seizure witness following the deliberate adoption of falsehood
on his part as apparent on the face of the record. And, as such
the so called seizure list. Ext. 2 is legally not true and proper.
Further, non production of the so called seized articles before
the Court has vitiated the trial and thus, the impugned order of
conviction and sentence is not sustainable.
2
3
(d) Ld. CJM has failed to interpret the evidence of PW2 Sri.
Jitendra Chandra Das, another seizure witness, in its proper
perspective and thereby committed grant miscarriage of justice.
(e) Sketch map of the PO having drawn by the IO also do not
suggest the so called seizure of the articles.
(f) The impugned judgment and order of conviction and
sentence is otherwise bad in laws and, as such, the same is not
tenable.
(g) Under the circumstances and for the ends of justice, the
impugned judgment and the order of conviction and sentence
need to be interfered with setting aside the same and acquit the
accused/ appellants setting them at liberty else the innocent
accused/ appellants shall be prejudiced.
(h) The evidence of PW3 Smti. Anandi Das, the so called
prosecutrix has also not been properly interpreted by the Ld.
CJM. Because her evidence was also a deliberate exaggeration
of her so called reporting to her husband PW1 and secondly,
with reference to her statement before the I/O.
(h) Ld. CJM has failed to realize that this is an exceptional case
whereby the FIR. Ext. 1 should not necessarily be considered as
a document upon which the prosecution case has only been set
on motion and that in the instant case, the FIR. Ext. 1 ought to
have been considered with reference to the evidence on record.
7.
I have heard submission of Ld. Counsel for both sides and
also perused the impugned judgment of Lower Court.
Point to be decided
8.
Now the point to be decided is, whether the impugned order of
conviction and sentence dated 31-08-2009 in G.R. Case No. 1059/98,
passed by Sri. S. Khound, Chief Judicial Magistrate, Cachar, Silchar,
is liable to be set aside in view of the grounds mentioned in
memorandum of the appeal.
9.
To appreciate the legality of impugned judgment and order, it is
required to re-appreciate the evidence on record by the appellant
Court.
10. Ld. Counsel for the appellant Sri. Gautom Roy in his memo of
appeal took the plea that:
(i)
P.W.1 is neither an independent nor a respectable or a
reliable seizure witness following the deliberate adoption of falsehood on
his part as apparent on the face of the record. And as such, the so called
seizure list Ext. 2 is legally not true and proper. Further, non production of
3
4
the so called seized articles the Court has vitiated the trial and thus, the
impugned order of conviction and sentence is not sustainable.
(jj)
Ld. CJM has failed to interpret the evidence of PW2 Sri.
Jitendra Chandra Das, another seizure witness, in its proper perspective
and thereby committed great miscarriage of justice.
(iii)
Moreover, for want of examination of the I/O before the Court
below, the innocent defence had been deprived of their legitimate right of
confirming the contradictions in the evidence of the respective PWs. The
fact remains is that the defence has been highly prejudiced for non
examination of the I/O.s
On the other hand, Ld. Counsel for the State P.Deb has argued
that Ld. Court below has rightly convicted and sentenced the accused
as all the ingredients U/S 143/447/427 IPC have been proved against
the accused persons.
11.
12. He further submits that, conviction can be based only on the
sole evidence of witness if that witness inspires confidence. In the
instant case, P.W.3 Smti. Anandita Das is the eye witness to the
occurrence. Her evidence has been corroborated by PW3, seizure
witness and P.W.3 and as such the appeal does not have any merit.
13. To come to a proper conclusion it is required to discuss the
relevant law as well as evidence on record.
14. To constituent an offence U/S 143 IPC following ingredients
are to be proved:
(i) There was an unlawful assembly as defined in Section 141; and
(ii) The accused was a member of such assembly as defined in
Section 142;
15.
To constituent an offence U/S 447 IPC following ingredients
are to be proved:
(i) That the complainant has possession of the property in
question..
(ii) That the accused entered into or upon the property; or after
having lawfully entered unlawfully remained there;
(iii)That he so entered or remained there with the intention (a) to
commit an offence; or (b) to intimidate, insult, or annoy the person
in possession.
16. To constituent an offence U/S 427 IPC following ingredients
are to be proved:
(i) That the accused caused the destruction of some property, or
some change in such property or in the situation thereof;
(ii) That the above act destroyed or diminished the value or utility of
such property, or affected it injuriously;
4
5
(iii) That the accused did as in (i) intending or knowing that he was
likely to cause loss or damage to the public or to any person;
(iv) That the causing of such damage or injury was wrongful;
(v) That the loss or damage caused amounted to Rs. 50 or more.
17. P.W.3. Smti. Anandita Das who is the eye witnesses to the
occurrence in her evidence stated that informant is her husband and
accused are known to her. About 6/7 years back the occurrence took
place at noon. At the time of occurrence she was sleeping in her
house. At that time all accused went to the house of PW3 and broke
the wall of the house and also had cut banana tree etc. Out of fear
P.W.3 left the place of occurrence and many other people gathered
there. When the husband of P.W.3 returned home then she reported the
matter to her husband (PW3) who lodged ejahar. Thereafter, police
came and seized broken wall and also recorded statement of PW3.
18. The evidence of PW3 is corroborated by another independent
witnesses PW2.
19. P.W.2 Sri. Jitendra Chandra Das in his evidence stated that
about 5/7 years back the accuseds damaged the boundary fencing of
P.W.1. On being reported by wife of P.W.1 he came to the place of
occurrence and saw the cut banana tree, betel-nut tree. Thereafter, the
informant lodged the ejahar and police seized banana tree, betel-nut
tree and gave it in zimma of PW2. Ext. 2 is the seizure list where Ext.
2(2) is the signature of PW2. The evidence of P.W.3 Smti. Anandita
Das to the effect that the accused persons entered into the campus of
her house and damaged wall, banana tree, betel nut tree etc. is
trustworthy, convicting and believable.
20. From the foregoing discussions I am of the view that Ld. Court
below has rightly convicted the accused persons.
21. Ld. Lower Court has not given the benefit of Section 3 or 4 of
“The Probation of Offenders Act 1958” to the accused persons on the
ground of nature of offence and age of the accused persons. However,
the ground mentioned for not giving the benefit of Section 3 and 4 of
Probation of Offenders Act 1958 is not sound. Section 361 of Cr.P.C.
reads as followsWhere in any case the Court could have dealt with (a) an accused person under Section 360 or under the
provisions of the Probation Of Offenders Act, 1958 (20 of
1958), or
(b) a youthful offender under the Children Act, 1960 (60 of
1960), or any other law for the time being in force for the
treatment, training or rehabilitation of youthful offenders.
5
6
But has not so, it shall record in its judgment the special reasons
for not having done so.
22. In the instant case accused are not previous convicts. Their
character and antecedent do not have any blemish and as such it
would meet end of justice if accused are given benefit of Section 4 of
Probation Of Offenders Act 1958.
23. Consequently, instead of sentencing to pay fine as imposed by
the ld. Trial Court, if the accused are released on probation of good
behaviour for one year, it would meet the ends of justice.
Consequently, though the accused are found guilty U/S 143/447/427
I.P.C. , but they may be released by the ld. Trial court on their
execution of a bond with one surety for good behaviour for a period of
one year from the date of furnishing bond.
24. With the above modification of sentence the criminal appeal is
disposed of.
25. Send back case record along with copy of this judgment and
order.
26.
3rd
Given under my hand and seal of this Court on this day of
December 2014.
Dictated and corrected
Sri S.N. Sarma.
By me
Addl. Sessions Judge,(F.T.C)
Cachar, Silchar.
Sri S. N. Sarma.
Addl. Sessions Judge,(F.T.C)
Cachar, Silchar.
6