HEADING OF JUDGMENT IN SESSIONS CASE
District :- Goalpara.
IN THE COURT OF ADDL. SESSIONS JUDGE, GOALPARA.
Present:-
Sri V.K.Chandak, A.J.S.
Addl. Sessions Judge,
Goalpara.
Sessions Case No. 177/11
U/s 147/148/149/447/436/395 IPC
State
-Versus1. Moniruddin @ Moniruddin Seikh
2. Nurul Amin
3. Golap Ali.
4. Sorhab Ali and Somiruddin.
5. Habej Ali
..... Accused persons
Committed by the learned Addl. Chief Judicial Magistrate, Goalpara in G.R.
Case No.319/10 u/s 147/148/149/447/436/395 of the IPC on 15/12/10.
Ld. Advocates appeared:For the State:-
Sri L.Nath, Addl.Public prosecutor (assisted by Ld.
Advocate Sri Dulal Saha)
For the accused:-
Md. Amzad Ali and Sohidul Islam.
Date of evidence : -
13/02/12, 15/03/12, 31/03/12, 15/06/12 and
23/07/12
Date of argument : -
27/05/13 and 12/06/13
Date of judgment : -
12/06/13.
J U D G M E N T AND O R D E R
PROSECUTION CASE :1.
The prosecution case, in brief, is that on 07/03/10 at about 8.30
AM, a group of 50 – 60 miscreants damaged and destroyed two house, club
house, plant and tree etc. {on the land covered by dag No. 39 (old) and 33/7
(new)} under the possession of informant for more than a decade situated at
Kursakati Bazar. The assailants were armed with lathi, jong, dao, pistol etc.
and they attacked informant Jamila Khatun with dao and caused her injury.
The group of miscreants also damaged the house of informant and looted Rs.
28,000/- in cash and took away ornaments, educational testimonials by
breaking the box. On being prevented by the members of the club, the
miscreants threatened them to shoot. It was also alleged that the group of
dacoits assaulted the informant with lathi and tried to outrage her modesty.
After injuring the informant the miscreants set the house on fire after tying
the informant.
To that effect, complainant lodged a complaint in writing before
the Officer-in-charge, Lakhipur Police Station.
INVESTIGATION
2.
On receipt, of the aforesaid complaint, Officer-in-Charge of
Lakhipur Police Station, registered a case, vide its P.S case No. 48/2010
against accused persons u/s 147/148/149/447/427/380/506/354/511/342/456
IPC. The Investigating Officer of the case, after taking charge of the
investigation, visited the place of occurrence, recorded statement of
witnesses, drew the sketch map of the place of incident and made some
seizure. Finally, after conclusion of the investigation, Investigating Officer
of the case, submitted charge sheet against aforesaid accused persons u/s
147/148/149/447/427/380/506/354/511/342/436 IPC.
COMMITMENT OF THE CASE
3.
On receipt of the charge sheet, learned Chief Judicial
Magistrate, Goalpara, took cognizance of the case and transferred the case to
the court of Ld. Addl. C.J.M, Goalpara for trial. Ld. Addl. C.J.M, Goalpara
issued process to the accused persons and accordingly accused persons
appeared before trial Court. After submitting necessary copies as required
under statutory provisions, the Ld. Addl. C.J.M, Goalpara committed the
case to the Court of Hon'ble Sessions Judge, Goalpara, for trial, as offence
u/s 436 IPC was found to be exclusively triable by the Court of Sessions. On
receipt of the case, Hon'ble Sessions Judge, Goalpara, transferred the case to
the then Court of Ld. Assistant Sessions Judge, Goalpara for disposal.
C H A R G E
4.
During trial, my learned predecessor-in-office, allowed accused
person to remain on previous bail. After hearing learned counsel for both
side and going through the material submitted u/s 173 Cr.P.C and perusal of
case record, the then learned Asstt. Sessions Judge, Goalpara framed charge
u/s 147/148/149/447/436/395 of IPC against the accused persons. Charges
were read over and explained to the accused, to which they pleaded not
guilty and claimed to be tried.
T R I A L
5.
To bring home the charges against the accused persons,
prosecution side adduced evidence of altogether 8 (eight) numbers of
witnesses, including informant and I/O of the case.
They are P/W-1 Jamela Khatun (informant) ; P/W-2 Abdul
Samad (an eye witness) ; P/W-3 Md. Habeluddin (a hearsay witness); P/W4 Motiur Rahman (uncle of informant); P/W-5 Md. Abdus Samad
(another eye witness); P/W-6 Md. Ibrahim Ali (relative witness); P/W-7
Md. Habibar Rahman; and P/W-8 S.I. Bhuban Tamuli (I/O) of the case.
Prosecution side exhibited FIR as Ext-1; Seizure List as Ext-2
and Charge Sheet as Ext.3.
Statement of accused persons were recorded u/s 313 Cr.P.C.,
after closing of prosecution witness.
Their plea is total denial. However,
they declined to adduce evidence in their defence.
I have heard argument of learned counsel for both side and
scrutinized the evidence and materials on record. I have also perused the
written argument submitted by the Ld. Counsel, assisting the Ld. Addl. P.P.
for prosecution as well as Ld. Counsel for defence side.
Learned Addl PP made submission that prosecution has been
fairly able to bring home the prosecution charge against the accused persons
beyond all reasonable doubt. On the other hand, learned counsel for the
accused submitted that prosecution case is not based on true story, there are
contradictions in the statement of P.W- 1 (informant) and statement made in
ejahar and prayed for acquittal of the accused persons.
6.
THE POINT FOR DETERMINATION:(i) Whether the accused persons on 07/03/10, at about 8.30
A.M. ,were members of an unlawful assembly and committed rioting and
thereby liable for an offence committed u/s 147 of IPC. ?
(ii) Whether the accused persons on same date and time were
members of an unlawful assembly and were armed with deadly weapons,
committed rioting and thereby liable for an offence committed u/s 148 of
IPC. ?
(iii) Whether the accused persons on same date and time were
members of an unlawful assembly which committed the offence in
prosecution of the common object of that assembly and thereby liable for an
offence committed u/s 149 IPC ?
(iv) Whether the accused persons at the same time, date and
place criminally trespassed into the property of the complainant with intent
to commit an offence, and thereby liable for an offence committed u/s 447
IPC ?
(v) Whether the accused persons at the same time, date and
place committed dacoity in the house of the complainant and thereby liable
for an offence committed u/s 395 of IPC ? And
(vi) Whether the accused persons at the same time, date and
place committed mischief by setting the house of complainant on fire to
cause destruction of the said house and thereby liable for an offence
committed u/s 436 IPC. ?
7.
DISCUSSION, DECISION AND REASON THEREOF
I, have gone through entire evidence on record and I have also
heard argument from the Ld Counsel for the both sides.
Before proceeding for discussion of evidence of this case it is
noticed at the very outset that though the alleged occurrence took place on
07/03/2010 at about 8.30 A.M. , the complaint, in the present case, was
lodged on the same day at about 12.30 P.M. i.e. after 4 hours of the incident.
8.
Though mere delay in lodging of F.I.R or complaint petition
cannot be made a ground for discarding the evidence of witnesses of the
prosecution, the fact remains that when an F.I.R./complaint petition
is
belatedly lodged and no explanation for such delay is offered or discernible
from the materials on record, the court has to be alive to the possibility of
prosecution witnesses giving exaggerating account of the occurrence and
causing improvements in the version of the occurrence by involving
innocent with guilty ones. In such cases, the court must guard against the
possibility of prosecution witnesses endeavoring to implicate innocent
person or fastening innocent person. In the present case, for lodging the
complaint, so belatedly, nothing is written in the FIR (Ext-1).
9.
Ld. Counsel for the accused submitted at the time of his
argument that FIR of the case had been lodged after 3.30 hours of the
incident and it was after thought, deliberate and lodged after consultation, as
the complainant had a grudge against the accused persons. He submitted that
delay is fatal to the prosecution case because it has not been satisfactorily
explained by the prosecution. Moreover, it is submitted, police station is just
7 k.m. away from the place of incident having easy communication to go
there.
10.
In this regard he referred to the decision of Hon'ble Supreme
Court in Mahtab Singh & Ors -vs- State of U.P., 2010 (1) S.C.C. (Cri.)- 1185
In that case (Supra) the complainant did not go to police station
immediately but he went elsewhere and got a written report prepared and
lodged the same after 45 minutes though police station was hardly one
furlong away from place of occurrence. It was held by the Hon'ble Apex
Court that such behavior creates doubt and false implication can not be ruled
on as the complainant had a grudge against the accused.
In the back drop of this fact , let me appreciate the evidence on
record of the prosecution witnesses by discussing the evidence available on
the record.
11.
Musst. Jamela Khatun (P/W-1) who is victim/informant of the
case, deposed in her evidence that at the time of incident 50 – 60 persons
came and looted Rs. 28,000/-, ornaments, educational testimonials after
damaging her house. When she raised objection she was tied with a bamboo
post and her house was set on fire. The informant identified all the 5 Nos. of
accused at the time of evidence. She exhibited FIR(Ext.1) lodged by her. She
also deposed that police seized her damaged trunk,VIP bag etc.
12.
In her cross examination she admitted that she did not tell the
police in her statement that she was tied with the bamboo post, that her
educational testimonial were taken. She also stated that she did not tell the
police the evidence as deposed by her, in examination-in- chief, as police
did not ask her, in this regard.
13.
She further deposed that after her marriage she stayed in
separate house belonging to her father, which was 20 – 25 feet away from
the house of her father. That she had two houses. That people entered into
her house but she could not say from which direction the people came to her
house. That two-three persons set her house on fire and her house damaged
in the fire fully. She further deposed that police did not take the jute rope by
which she was tied. People from public untied her rope by cutting the same.
That she remained in the tied position for 5-6 minute only. She admitted that
dispute is going on between her uncle namely Mizanur Rahman and accused
for the land pertaining to Kursakari Market. Both side have filed cases
against each other. She denied a suggestion that she had filed the present
case at the instigation of her aforesaid uncle Mizanur Rahman.
14.
Abdul Samad (P/W-2) who is an eye witness of this case
deposed that 50- 60 persons damaged the club house constructed at
Kursakari Market and damaged its pillar. The mob also damaged the house
located at Northern side of Kursakari Market. He claims to have remained
present at the time of incident. He also saw fire from the Northern Side of
house of the P/W-1. The fire was put out by some unknown person, as per
version of P/W-2.
15.
In the cross examination he deposed that the club house was
being constructed recently. He could not say from which side and from
which village those 50 – 60 persons came. P/W-2 stated that from his early
days he saw the land of the house of P/W-1 to be the land of market. He also
admitted that he stays in the village Kursakati. Dispute between uncle of
P/W-1 and accused persons pertaining to the land of Kursakari Market is
going on prior to the present case and accused Nurul and Moniruddin are
from Bazar Committee. He clarified that fire was put out immediately after it
was set on.
16.
P/W-2 who is an eye witness to the incident did not state in his
evidence precisely that accused were there in the assembly of those 50 – 60
persons.
17.
P/W-3 Habeluddin, who is cousin brother of informant (P/W-1)
deposed in his evidence that he was present in his house. He came out after
hearing that some quarrel is going on at Kursakati. He could see large
gathering of people demolishing under construction Club house. He also
allegedly saw some people demolishing house of P/W-1. He heard that those
people took cash amount and destroyed table, chair etc. of the house of
P/W-1. In his evidence he clearly deposed that he could not identify any
accused persons, as there was large gathering of people and he saw the
incident from the road.
18.
In his cross examination he deposed that he did not see as to
what goods had been taken out from the house of informant (P/W-1). P/W-2
also could not say as to whether the smoke which came out from the house
of P/w-1 was from cooking or something else. He corroborated the evidence
of P/W-1 and P/W-2 by deposing that cases are pending between the uncle of
informant and Kursakati Bazar prior to the incident. He could not say as to
whether P/W-1 constructed her house which she claimed to have constructed
before the incident. He also could not say as to on whose land the informant
(P/W-1) constructed her home or whether the said land belongs to Kursakati
Market ?
19.
Md. Motior Rahman (P/W-4) who also saw the incident
deposed that at the time of incident 50 – 60 persons gheraoed the house of
informant (P/W-1) and pulled down her house. Some miscreants took away
the belongings of P/W-1 like duck, hen etc. He also deposed that miscreants
burnt the house of informant and they also tied her (P/W-1) in her house. He
identified all the accused persons of this case out of those miscreants. The
miscreants also damaged the half constructed
club house, deposed the
P/W-4. He identified the seized articles of the case made by the police at the
time of his evidence vide Ext.-2. Materials Ext. 1 to Ext.4 are those seized
articles. Ext. 2(1) is his signature.
20.
In his cross examination he stated that he is own uncle of
informant (P/W-1). The seizure list (Ext.2) was not read out to him before he
put his signature thereon. That material exhibits are found available in the
house of almost all the villagers. That the informant (P/W-1) used to live in
her in-laws-house after her marriage and thereby contradicted other
witnesses who deposed that P/W-1 started living in separate house belonging
to her father, after her marriage. He could not say as to on which date
informant and her husband came to the present house. He admitted like
earlier witnesses that a civil case is pending in between Mizanur (uncle of
informant) and Kursakati Bazar Sommitee. That all his brothers went to the
place of occurrence but he came back from road.
21.
He admitted that he did not made statement before police that
miscreants tied Jamela Khatun (P/W-1) on one side of the burnt house which
is a material contradiction.
22.
P/W-5 Md. Abdus Salam, deposed that at the time of incident
he was having tea in a tea stall. He heard hue and cry and saw people
damaging club house. But he could not identify the people who damaged it.
The house of informant was also set on fire but he could not say as to who
set the house on fire. He exhibited his signature on the seizure list as Ext.2(2).
23.
In his cross examination he could not say as to what was
written in Ext.2. He deposed that he is son of uncle of informant (P/W-1)
and was taking tea in the tea stall of Ibrahim Ali (P/W-6). He admitted that
he did not tell police that while taking tea at a tea stall he heard halla and
many people damaged the house of informant and set her house on fire. So
this part of of his evidence cannot be given any importance.
24.
Md. Ibrahim Ali (P/W-6) deposed in his evidence that his hotel
is adjacent to the house of informant (P/W-1). He was present in his hotel.
He could see some people carrying lathi, fala etc. in their hands and were
coming from western side of his hotel at the time of incident. Accused
Maniruddin and Golap Hussain were in the front side and they directed to
damage the house of informant. Of course, he could not identify other
accused persons. Seeing this he went inside the hotel and closed from inside.
25.
In his cross examination he deposed that he was busy in closing
his hotel after seeing arrival of 50 – 60 people. He came to know that one
house has been damaged but at that time he was busy in closing his hotel. He
came out from his hotel after remaining in side, one hour from the incident.
That he is close relative (Moha) of the informant.
26.
He admitted material contradiction in his cross examination that
he did not tell police that accused Golap Hussain and Moniruddin led the 50
– 60 people who came from western side. He also deposed that informant is
staying in her home after her marriage, thus, contradicted the informant.
However, he could not say as to on which date the marriage of informant
(P/W-1) took place.
27.
Md. Habibar Rahman (P/W-7) deposed in his evidence that he
was working in his paddy field at the time of incident. After hearing halla
on the date of incident, he came to the place of occurrence and saw the
damaged house of Jamela (informant) but he deposed that there was no
articles belonging to the informant and he could not say as to who damaged
her house.
In his cross examination he stated that he has heard that a case
is pending between the uncle of P/W-1 and Kursakati Bazar Committee.
28.
From the scrutiny of evidence or the prosecution witness it is
found that P/W-2 , P/W-3 , P/W-5 and P/W-7 have not identified the accused
persons among the 50 – 60 people, who gathered at the time of incident,
which admittedly took place in the broad day light. But their evidence is not
corroborated with the evidence of P/W-1 and P/W-4, who according to the
defence side are admittedly relative witness and identified the accused
persons who were present at the place of incident.
29.
Ld. Counsel for defence side has referred to the decision of
Hon'ble Supreme Court in Lakshman Prasad -Vs- State of Bihar, 1981 Cri.
L.J. (Supreme Court)- 1010. and Hon'ble Rajasthan High Court in State of
Rajasthan-Vs-Vishan Singh, 1997 Cri. L.J. 1443.
Ld. Counsel for prosecution side, on the other hand argued that
prosecution witnesses can not be disbelieved for being distant relative.
30.
It is true that close relative of victim may have a tendency to
exaggerate or add facts and the court should examine their evidence with
great care and caution. However, case in hand shows that incident took place
in the early morning hours at about 8.30 – 9.00 AM on 07/03/10 near the
Kursakati Bazar. So naturally all the persons including relatives of the
informant have witnessed the incident, who might have remained present in
the bazar area at the relevant time. So I find nothing wrong in the evidence
of relative of informant, who also saw the alleged incident along with other
prosecution witnesses.
31.
It was argued by the Ld. Counsel for accused that neighboring
witnesses who were present at the place of occurrence have not been
examined and even father and husband or the P/W-1 (informant) have not
been examined. Ld. Counsel, thus, submitted that acquittal of accused will
be justified. He relied on a decision or Hon'ble Gauhati High Court in
Dhareswar Phukan v. State of Assam, 1984 Cri L.J. Noc (Gau)
32.
It is true that some of the neighboring witnesses have not been
examined in this case but prosecution side has examined other neighboring
witnesses who saw the incident and were present at the time of incident like
P/W-6. So it can't be said that prosecution case can't be relied on this count.
Moreover, in criminal trial number of witnesses does not matter, it is the
quality of the evidence, which is required to be looked into and not the
quantity.
33.
Further as regards non examination of father and husband of
informant (P/W-1) it is noticed from the case that they were not present at
the time of incident so argument of defence side, in this regard, has no force.
34.
In the case of Krishna Mochi and Ors. v. State of Bihar,
(2002) 6 SCC 81, the Supreme Court has also held that in a criminal trial
credible evidence of a solitary witness can form the basis of conviction.
35.
In yet another the case of Inder Singh and Anr. v. The State
(Delhi Administration), (1978) 4 SCC 161, the Apex Court has held that
proof beyond reasonable doubt is a guideline, not a fetish and guilty man
cannot away with it because truth suffers some infirmity when projected
through human process.
We may gainfully rely on the ratio of the above decision of the
Apex Court in the case, in hand.
36.
Ld. Counsel for accused strongly argued that regarding offence
u/s 436 IPC there is no evidence on record as to how fire started, who lit the
match stick and set house on fire and the manner of setting fire. He
therefore, prayed for acquittal of the accused persons for offence under that
section.
37.
In this connection Ld. Counsel for accused relied on a decision
of Hon'ble Madhya Pradesh High Court reported in 1990 Crl. L.J. 174
wherein evidence of even single witness, who did not state also how fire was
set, the role of each accused and the mode on manner in which the accused
person in which they set house on fire, was not relied.
38.
The Hon'ble High Court in this regard (Supra) relied on
observation of Hon'ble Apex Court in Badri v. State of Rajasthan. (AIR 1976
SC 560): (1976 Cri L.J. 496), a case of murder, the Supreme Court held as
under (Para 18):
39.
“if a witness, who is the only witness against the accused to
prove a serious charge of murder can modulate his evidence to suit a
particular prosecution theory for the deliberate purpose of securing a
conviction, such a witness cannot be considered as a reliable person and no
conviction can be based on his sole testimony.”
40.
In the same judgment first information report was lodged
promptly. The Supreme Court held that (Para 14):
41.
“Even the prompt lodging of the first information report and
showing Patram as an eye-witness therein would not be the requisite
corroboration needed for the purpose of accepting the testimony of Patram.
Besides, if Patram is himself not absolutely reliable his repeating the name
of the accused to several persons after the occurrence would not add to the
quality of his evidence.”
42.
From the scrutiny of evidence of prosecution witness it is seen
that there is no evidence about the role of any accused persons. From the
evidence adduced by prosecution side the presence of accused persons has
remained very doubtful at the time of commission of that offence. Even the
prosecution witnesses (P/W-2) have stated in his evidence that fire was put
out immediately by the unknown people. Further, P/W-5 categorically stated
that he did not see the person who set the house of informant on fire. Even
informant (P/W-1) did not state categorically that the accused person set her
house on fire.
43.
Regarding charged offence U/s 147/148/149 IPC against the
accused in this case it is seen from the FIR (Ext.1) lodged by informant
(P/W-1) that 50 – 60 persons came to the land covered by Dag NO. 39 (old)
33 / 7(new) and destroyed club house, two house. That those 50 – 60 persons
were armed with lathi, da, jong, pistol and assaulted the informant with dao
and looted cash amount of Rs. 28,000/-, educational testimonials etc. after
breaking the box.
44.
Now, when I turn into the evidence of prosecution witnesses it
is noticed that except witness Matiur Rahman (uncle of P/W-1) and Ibrahim
Ali (P/W-6) not a single other witnesses has uttered in their evidence that
accused were armed with dao, lathi, jong, pistol etc. Even P/W-1 (informant)
who first saw the unlawful assembly or 50 – 60 persons comprising accused
persons did not state anything in her evidence that accused were armed with
deadly weapons as mentioned in FIR.
45.
In this connection the question may arise as to whether the
mere presence in mob, constituting an unlawful assembly, is punishable or
any overt act in addition is needed, therefor, fell for decision in a Supreme
Court case. It was held by the Hon'ble Apex court that mere presence of a
person at the scene of offence does not make him a member of an unlawful
assembly. Even when a grave act of rioting takes place, persons proved to
have been present can be convicted either under Section 147 or with the aid
of section 149 only, when it is further proved that they did something or
omitted to do something which would show that they shared the common
object to commit an offence with those who had actively participated in the
riot.
46.
Now reverting back to the fact of the case it is seen that accused
person along with other 50 – 60 persons entered in to the house of informant
at the time of incident. Though there is no direct evidence that accused
persons damaged the house and other property of informant but the fact
remains that they being member of the bazar committee did not prevent the
mob or did anything to prevent destruction of property of the informant. It
thus, clearly shows that accused persons shared the common object with the
other persons of the mob who had actively participated in the riot at the time
of incident.
47.
Regarding the offence u/s 447 IPC against the accused persons
it is in the evidence of P/W-1 and P/W-4 that accused entered into the house
of informant to damage her house and cause annoyance. Almost all other
prosecution witnesses have stated that there was an unlawful assembly, the
purpose of which was to damage the house and property of informant at the
time of incident.
48.
The defence side through their cross examination of witnesses
as well as while making argument in the case asserted that house of
informant as well as club house were constructed in the disputed land
belonging to Kusarkati Bazar Samity and dispute is pending before the court
of law, in this regard , between the uncle of informant namely Mizanur
Rahman and members of said committee.
Accused
Moniruddin @
Moniruddin Seikh in his statement u/s 313 Cr.P.C. clearly stated that he is
president of the Kusarkati Bazar Samity.
49.
In the light of this fact when I turn to the evidence of witnesses
it is seen that informant of the case alleged that accused persons along with
50 – 60 persons entered into her house and damaged her house and took
away her belongings. In this connection, it is claimed by the defence side
that the land , on which house of informant as well as club house was
constructed pertains to be disputed land. Civil case is also going between
the parties in the court of law.
50.
Since dispute is going on between the parties so it can be held
without hesitation that accused were not acting in the exercise of their
bonafide claim of right while entering upon the land in dispute. Hence,
whatever, may be the fact in this regard it can not authorize the accused
persons to commit criminal
trespass into the house of informant
and
damage the same by causing annoyance to the informant.
51.
Ld. Counsel for the prosecution, in this regard argued that
accused Moniruddin Sk. in his evidence before civil court, pertaining to
land, in question has admitted by deposing that house of informant (P/W-1),
who was residing there, was dismantled by them and informant filed a
criminal case (i.e., case in hand) against the accused persons.
52.
Thus, it is clear from the above discussion and evidence on
record that accused persons entered into the house of informant and
remained there unlawfully to damage the house or to cause annoy, intimidate
the informant which amounts to committing an offence punishable u/s 447
IPC.
53.
Now as regards charge of dacoity, which is punishable u/s 395
of IPC it is seen that there is no iota of any evidence to hold that accused
persons committed dacoity in the house of informant on the date of alleged
incident.
54.
In this regard, evidence of informant (P/W-1) shows that 50 –
60 persons entered into her house and took away her belongings including
cash, ornaments , educational testimonials etc. However, there is no
evidence of prosecution side that it was accused persons who took away the
belonging of the P/W-1. The incident took place in the broad day light and it
is very unlikely that accused persons, some of whom, who are office bearer
of Kursikata Bazar Samity will commit dacoity in front of large gathering of
people. It might happened that out of those 50 – 60 persons the belongings
of informant might have been taken out by some of them.
55.
But in absence of any specific evidence it can not be held with
certainity that accused looted the belongings of informant and no wonder
for this reason police could not recover any looted articles from the
possession of accused persons during investigation.
56.
Hence, I hold that prosecution side has not been able to prove
the charge of offence u/s 395 IPC against accused persons beyond
reasonable doubt.
57.
It is pertinent to mention here that accused persons at the time
of recording their statement u/s 313 Cr.P.C. also stated that as dispute is
pending with the family members of informant so only for this reason
informant has lodged a false case against them.
58.
However, from the evidence of prosecution witnesses, as said
above and as per discussion, made herein above I hold that prosecution has
been able to prove the presence of accused persons in the mob constituting
an unlawful assembly, the object of which was to damage the house of
informant and they made criminal trespassed into the house of
informant/victim to commit an offence, as said above.
59.
I, further hold that guilt of the accused for committing offence
u/s 147/447 IPC
has been proved by the prosecution side, beyond
reasonable doubt, notwithstanding the fact that there are some minor
contradiction in the evidence of witnesses, which in my considered opinion
do not affect the merit of the case.
60.
In the light of the evidence on record, it is seen that though the
prosecution could not prove the charge u/s 148/149/436/395 IPC beyond
reasonable doubt, against the accused persons. But at the same time,
prosecution side has been able to prove beyond reasonable doubt that
accused on the day of incident entered into the house of informant/victim
and were members of an unlawful assembly, as said above, and thereby
liable for committing an offence u/s 447/147IPC.
61.
Thus, I hold that the prosecution side has been able to prove the
charge u/s 147/447 IPC beyond reasonable doubt. Accused are not found
guilty for committing offence u/s 148/149/436/395 IPC, as stated herein
above, and accused are discharged from those charges.
62.
I have heard the accused on the point of sentence. The accused
submitted that they are only earning member of their family, which consists
of mother, wife and childrens and prayed for leniency.
63.
It is seen that accused are entitled to get the benefit of
provisions of the Probation of Offenders Act. However, considering the fact
that law lessness is increasing day by day and further considering the nature
of offence and the circumstances, in which accused has committed the
offence, I don't want to deal the accused u/s 3 or 4 of the Probation of
Offenders Act as they took law into their hands while committing the
offence.
64.
Considering the entire circumstances, accused are sentenced to
pay a fine of Rs. 500/- each in default to undergo S.I. for 15 (fifteen) days
for committing offence u/s 447 IPC and to pay a fine of Rs. 2000/- each in
default to further undergo S.I. for another period of 1 (one) month for
committing offence u/s 147 IPC, which in my consider opinion shall meet
the ends of justice. Both the sentence shall run concurrently.
The fine amount, if so realized, be paid to
immediately, as provided u/s 357 Cr.P.C.
informant
65.
Supply a free copy of this Judgment to the accused
immediately.
Let a copy of this Judgment and order be forwarded to the
Hon'ble District Magistrate, Goalpara, u/s 365 Cr.P.C.
Send back the GR Case Record to the Ld. Court below with a
copy of the Judgment.
Given under my hand and the seal of this court on this the 12 th
day of June/2013.
V.K.Chandak, AJS,
Additional Sessions Judge,Goalpara.
Dictated and Corrected by me...
Additional Sessions Judge,
Goalpara