High Court
Case Details
Crl.A. 113/2005 BEFORE THE HON’BLE MR. JUSTICE C.R.SARMA
Legal Reasoning
Heard Mr. N Dhar, learned counsel for the appellant and Ms. A Begum, learned Add itional Public Prosecutor for the State. None appears for the private respondent s. 2. This appeal is directed against the Judgment and order, dated 31.03.2005 , passed by the learned Additional Chief Judicial Magistrate, Karimganj in CR Ca se No.815 of 2004, under Sections 448/323/379 IPC. By the impugned Judgment and order the learned Additional CJM has acquitted the accused persons i.e. the priv ate respondents. Aggrieved by the said order of acquittal, the complainant, as a ppellant, after obtaining leave, has preferred this appeal. 3. The complainant in her complaint alleged that a proceeding under Section 107 Cr.P.C. was instituted in the Court of learned Additional District Magistra te, Karimganj against the accused persons and thereafter, out of grudge, the acc used persons, on the night of 2.12.2003 in between 10 to 11 o’clock at night, be ing armed with deadly weapons entered the house of the appellant by breaking ope n the lock of the grill of the house and assaulted her, outraging her modesty. I n the said complaint, she has also alleged that the accused persons, by using w eapon i.e. dao, had threatened her and her two children and forcefully took away one golden chain, one colour TV set, one CD machine and one VIP suitcase contai ning other properties. The said complaint, filed on 3.12.2003, before the learn ed CJM, Karimganj was registered as CR Case No.1792 of 2003 and forwarded to the police for registering a case. Accordingly, the police registered a case and at the completion of the investigation submitted final report on 31.1.2004 in conn ection with Badarpur PS Case No. 205 of 2003. Aggrieved by the said final repor t, the complainant filed a protest petition before the learned CJM and the same was registered as Complaint Case No.818 of 2004. The learned Addl.CJM after exam ining the complainant took cognizance of offence under Section 447/323/379/506 I PC and proceeded with the matter. 4. The complainant examined as many as three witnesses in support of her ca se. At the close of the evidence for the complainant, the accused persons were e xamined under Section 313 Cr.P.C.. They denied the allegations, brought against them, and declined to adduce any defense evidence. The learned CJM considering t he evidence, on record, came to the findings that there were material contradict ions in the evidence of the said three witnesses and as such their evidence was not reliable. The learned Addl.CJM also declined to accept the said evidence of PWs on the ground that all the witnesses were interested witnesses and that ther e was no supporting evidence from any independent witnesses. 5. The learned trial judge also observed that the articles, alleged to be f orcefully taken away by the accused persons, not being recovered from the accuse d persons, the evidence that the accused persons had forcefully taken away the s aid articles was not believable. 6. With the above findings the learned Addl.CJM concluded that the complain ant failed to prove the charges, brought under Section 448/379/323 IPC, against the accused persons, beyond all reasonable doubt. Accordingly, the learned Addl. CJM, by the impugned judgment and order, acquitted the accused persons and set t hem at liberty . 7. Aggrieved by the said judgment and order the complainant has come up wit h this appeal. Mr. N Dhar, learned counsel appearing for the complainant, referr ing to the complaint filed by the complainant and the evidence of PWs-1, 2 and 3 has submitted that the said evidence recorded by the leaned Addl.CJM prima faci e constitute an offence of dacoity punishable by Section 395 IPC and as such, le arned Addl.CJM ought to have committed the case to the Court of Sessions, instea d of disposing the same without jurisdiction. In support of his contention the learned counsel appearing for the appel 8. lant has referred to the decision held in the case of Venu @ Venugopal -vs- Stat e of Karnataka: (2008) 3 SCC 94. In the above case the Hon’ble Supreme Court has laid down the essential ingredients of Section 392 IPC. Carefully perusing the complaint it is found that the complainant clear 9. ly stated that all accused persons, who were seven in number, had entered her ho use by breaking open the lock of the grill and assaulted her. She further allege d that the accused persons had threatened her and her two children with dao and forcefully took away her properties i.e. a gold chain, a TV , a CD and a VIP sui tcase form her house. Her two children, who deposed as PWs- 2 and 3, also suppor ted her said version regarding forcefull taking way of the above mentioned items by the accused person. All the said witnesses in their evidence, given as PWs-1 , 2 and 3, clearly stated that the accused persons had forcefully removed the a bove mentioned articles from their house by applying force and that the accused persons had assaulted PW-1 i.e. complainant and threatened the PW-2 and PW-3 by showing a dao, indicating thereby that hurt would be caused to them. Thus,they h ad threatened to cause hurt in taking away the properties aforesaid. As provided by Section 390 IPC theft becomes robbery if in order to the 10. committing of the theft or in committing the theft or in carrying away or attemp ting to carry away property obtained by the theft, the offender, for that end, v oluntarily causes or attempts to cause to any person death or hurt or wrongfully restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint. 11. From the above mentioned evidence of the PWs-1, 2 and 3 it appears that the accused persons in taking away the complainant’s property had caused hurt t o her and threatened to cause hurt to her and her children. Therefore, prima fa cie there existed the ingredients of robbery. As provided by Section 391 IPC whe n five or more persons conjointly commit or attempt to commit a robbery every pe rsons so committing or attempting to commit a robbery is said to commit dacoity . In the present case, the above-mentioned witnesses stated that all the accused persons, who were seven in number had commit robbery. Therefore there is prima facie materials to show that the accused persons had committed the offence of dacoity as defined by Section 391 IPC which offence is punishable under Section 395 IPC. The offence under Section 395 is exclusively triable by the Court of Se ssions. Therefore the learned Addl.CJM had no jurisdiction to try the said case. The learned Addl.CJM ought to have committed the case to the Court of Sessions, as per law.
Decision
12. In view of the above discussions, I am of the considered opinion that th e learned Addl.CJM committed error by disposing the said complaint case, which r esulted in acquittal of the accused persons i.e. the present respondents. As the learned Addl.CJM acted without jurisdiction the impugned judgment and order can not be maintained. Accordingly, the impugned judgment is set aside and the matter is remand 13. ed to the Court of learned CJM, Karimganj with the direction that the learned CJ M shall commit the case to the Court of learned Sessions Judge for disposal as p er law. It is made clear that the learned Sessions Judge shall not be influenced by any observation made by this Court with regard to the merit of the case. 14. Return the LCR.