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District-Hailakandi.
IN THE COURT OF THE ASSTT. SESSIONS JUDGE , HAILAKANDI
Present- N.S. Deori.
B.Sc., LL.B, AJS.
Asstt. Sessions Judge.
S.C. No. 57/2009.
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U/Ss. – 459/380/511 of I.P.C.
State
-VersusHussain Ahmed,
Abul Hussain @ Abdul Azim,
Islam Uddin @ Biswajit &
Motak Ali (filed)
………………Accused Persons.
Charge framed U/S -459/380/511 of I.P.C. on : 20/07/2011, 08/05/2013,
25/01/2016,
Prosecution Evidences recorded on
: 17/03/2010, 23/08/2011,
Argument heard on
: 07/04/2016,
Judgment delivered on
: 07/04/2016,
Ld. Counsel for the State
: Mr. Kamal Hussain Choudhury,
Addl. P.P. Hailakandi.
Ld. Counsel for the Accused persons
: Mr. Jamir Uddin Laskar,
Advocate, Hailakandi Bar,
J U D G M E N T
This case arose out of Hailakandi
P.S. Case No. 32/99, U/s-
459/380/511 of I.P.C upon the gist of the facts stated in the FIR which has set
this criminal case in motion against accused persons.
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1.
The prosecution version, in short campus, is as follows:- An Ejahar was
filed by on Baid kumar Pandey, Manager of Kanchanpur TE at Hailakandi PS
alleging that on the night of 22/01/99 at about 01:15 AM a group of miscreants
appeared at the Bungalow of the Director of the said TE and assaulted the
night Chowkidars and tied them with rope. Thereafter, the miscreants entered
into bungalow by breaking open the door of the bungalow, but when the
garden labor raised hue and cry, the miscreants left the place. Hence the
prosecution case against the accused persons.
2.
The police on receipt of the said FIR swung into action by investigating
the case. The I/O visited the place of occurrence and recorded the statement of
the witnesses u/s-161 Cr. P.C. and prepared the case diary u/s-172 Cr.P.C.
Having materials against accused persons in Case Diary, the charge sheet was
filed under Sections-459/380/511 IPC to face the trial before the court.
04.
On receipt of summons, the accused persons entered appearance before
the court and the relevant copies were furnished u/s-207 Cr.P.C. and
committed to the Hon’ble court of Sessions being session’s triable case. The
offences under sections- 459/380/511 IPC against the accused persons are
explained, framed and read over to them upon which they pleaded not guilty
and claim to be tried. Subsequently the accused Motak Ali remained absent
and thus filed the case against him.
5. POINTS FOR DETERMINATION:(I) Whether the accused persons on 22/01/99 at night at about 01:15
AM caused voluntarily hurt while committing lurking house trespass by
assaulting the chowkidar and then by breaking the door of the bungalow
of the Director of Kanchanpur TE?
ii) Whether the accused persons on the same date, time and place as
aforesaid entered into the house of the Director of Kanchanpur TE and
attempted to commit theft?
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DISCUSSION, REASONS AND DECISION THEREOF:6.
In the instant case, the prosecution side has examined as many as
(three) witnesses, namely, Sri Padip Rathi (P.W.-1), Sri Dhanbabu Nayak (P.W.2), Basir Uddin Choudhury (P.W.-3). The accused persons did not adduce any
evidence for his defence.
7.
In the instant case, the charge under section 459/380/511 IPC brought
against the accused persons. Thus, It’s pertinent to state that in order to bring
home the offence under section-459/511 IPC, the prosecution shall prove (a)
that the accused persons committed lurking house trespass by assaulting the
chowkidar and then by breaking the door of the bungalow of the Director of
Kanchanpur TE (b) that the accused persons entered into the house of the Director
of Kanchanpur TE with intent to commit theft.
8. In the evidence, P.W.-1 (Sri Pradip Rathi) deposed that the occurrence took place
in the year 1999 at about 01:30 AM. At the time of occurrence, he was sleeping at his
own residence with his family. At that time he heard some sounds of gate breaking of
residence.
Then he raised alarm and asked his chowkidar named Onkarmal and
Mohan Singh what happened. Then they told him that dacoits came and tried to break
the gate.
In the meantime the dacoits after breaking the gate entered into the
veranda of the bungalow and he heard sound of threatening to chowkidars by showing
deadly weapons asking about presence of PW.1 in the house. They also threatened
those persons not to raise alarm, otherwise they will kill them. In the meantime P.W.1, raised the siren and garden people came to the place of occurrence and the
miscreants left the place. Then the chowkidars told him that the miscreants assaulted
them and threatened them for their life. The miscreants also damaged the door and
gate of the residence of PW.1. Then he reported the incident to the TE Manager Sri
BK Pandey, who lodged the ejahar at Hailakandi PS.
During investigation police
recorded his statement. In the cross examination, PW.1 stated that nothing was looted
by the miscreants from his residence. He could not recognize any of the accused
persons as they covered their face with black clothes. Similarly, PW.2 (Sri Dhanbabu
Nayak) deposed in his evidence that at the time of occurrence they were on duty
alongwith Alai Uddin at the bungalow of Director Pradip Rathi (PW-1). At that time
suddenly they saw that about 8 to 10 miscreants entered in the Director’s bungalow
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through the tea plantation section and the miscreants started to assault them and tied
their hands and legs and the miscreants went inside the bungalow. The miscreants
had covered their facts with black clothes.
So, PW.2 could not recognize the
miscreants. They had broken the door of the Director’s bungalow. At that time siren
was raised and many garden people came to the place of occurrence and rescued
them. Then the miscreants fled away from the spot. In the cross examination, PW.2
stated that he did not identify any of the miscreants due to darkness as their faces
were covered with black cloth.
The miscreants had not looted away any articles.
Further, PW.3 (Basir Uddin Choudhury) stated in his evidence that he does not know
anything about the incident of the instant case. He did not sign in the seizure list. The
signatures appear in the seizure list is not of PW.2 as two signatures are dissimilar to
each other.
10. The gist of facts as emerged out
from the FIR that on the night of
22/01/99 at about 01:15 AM a group of miscreants appeared at the Bungalow
of the Director of the said TE and assaulted the night Chowkidars and tied them
with rope. Thereafter, the miscreants entered into bungalow by breaking open
the door of the bungalow, but when the garden labor raised hue and cry, the
miscreants left the place. This fact of occurrence is corroborated by the P.W.-1
and P.W.-2 in their evidence but failed to identify any of the accused persons.
There is no evidence to hold that the present accused persons on 22/01/99 at
night at about 01:15 AM caused voluntarily hurt while committing lurking house
trespass by assaulting the chowkidar and then by breaking the door of the
bungalow of the Director of Kanchanpur TE or entered into the house of the
Director of Kanchanpur TE and attempted to commit theft. That being the
prosecution evidence, the accused persons undoubtedly entitle to the benefit of
doubt.
11. In summing up the evidence on record and assessment thereof; this court
arrived at the decision that the prosecution has failed to prove its case against
the accused persons beyond reasonable doubt. Therefore, this court holds the
accused Hussain Ahmed, Abul Hussain @ Abdul Azim and
Islam Uddin @
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Biswajit and
Motak Ali
are not guilty of the offence under sections-
459/380/511 of Indian Penal Code, 1860 and they are acquitted and set at
liberty forthwith.
Bailbond against the accused persons stand canceled and the bailor is
released from his liabilities of the bailbond.
Given under my hand with the seal of the court on this 7th day of April, 2016 at
Hailakandi.
(N. Senabaya Deori)
Asstt. Sessions Judge,
Hailakandi.