High Court · 2012

HON’BLE MR.JUSTICE P.K.MUSAHARY JUDGMENT AND ORDER ( ORAL) This appeal has been preferred against the judgment and order dated 28.4.04 ren dered by the learned Ad-hoc Additional Sessions Judge,Hojai, Sankardev Nagar in GR Case No. 793/98 convicting all the appellants under Sections 147/148/447/448 /427 IPC and sentencing each of them to pay a fine of Rs. 500/, in default R.I. for one month U/S 147 IPC , fine of Rs. 1000/-,in default R.I. for 3 months U/ S 148 IPC fine of Rs. 200/-, in default R.I. for 15 days U/S 447 IPC fine of Rs . 1000/- , in default R.I for 3 months U/S 448 and to suffer R.I. for 3 months and fine of Rs. 1000/-, in default t R.I. for one month U/S 427 IPC. The appell ants No. 1 to 8 were also convicted U/S 380 IPC and sentenced each of them to un dergo R.I. for 3 years and to pay fine of Rs. 1000/- in default R.I. for 3 mont hs. 2. The brief facts of the prosecution case are that on 18.10.98 at about 9 A.M an Ejahar was lodged by one Ismail Ali alleging that a group of 47 person s armed with deadly weapons demolished the house of said Ismail Ali and looted away all the household articles from his house on 17.10.98 at 10/10.30 P.M. The police on receipt of the Ejahar registered a case being Doboka P.S. Case No. 9 2/98 U/S 147/148/149/448/380/427/506 IPC which gave rise to GR Case No. 793/98. As many as 47 persons were named as accused persons in the FIR. Police , on co mpletion of investigation submitted chargesheet against 35 persons. The learn ed Sessions Judge, Nagaon by an order dated 12.6.2002 made over the case to the court of learned Ad-hoc Addl. Sessions Judge, Hojai, who on receipt of the recor ds and on consideration of materials discharged 2 of the accused persons of the charges and framed charge against 33 accused under the aforesaid sections of IPC. The accused persons pleaded not guilty and claimed to stand trial. Accord ingly, the prosecution, in order to establish the charge, examined as many as 1 0 witnesses including the I.O. Defence examined no witness. On the basis of t he evidence on record and upon hearing the learned counsel for the parties, the learned trial court acquitted 12 and convicted and sentenced 21 accused persons as idicated earlier.

3. I have heard Mr. H.R.A. Choudhuy, learned Senior counsel assisted by Mr. F.U.Bhuiyan, learned counsel for the convict/ appellants and Mr. K.Munir, learn ed Addl.P.P,Assam for the State-respondent. 4. Mr. Choudhury, learned Senior counsel submits that the prosecution di d not come with true version of the case inasmuch as the FIR was lodged on 18 .10.98 at 9.00 A.M stating that the occurrence took place on 18.10.98 at 2.30 A.M.(i.e. in the midnight on 17.10.98) but at the same time evidence was adduce d before the court by the informant P.W-1 stating that the occurrence took place at 10/1030 P.M on 17.10.98. It means that the informant was not sure regarding the actual time of the occurrence which casts great doubt regarding occurrence of the alleged incident. Again, it has been revealed from the evidence of the in formant (PW-1) that before lodging the said FIR, the Officer-In- Charge, Dobo ka P.S. was informed and the said O.C appeared at the place of occurrence but the informant concealed the said earlier first information and as such the pre sent FIR is hit by Section 161 Cr.P.C. Further, the learned Sr. Counsel submits that as per the evidence of the informant at the time of filing the present FI R ( Ext. 1) he did not give the names of the accused persons nor did he furn ish the list of stolen articles. The list of accused persons was furnished later on and the list of stolen articles was furnished after the goods were allegedly seized by police and as such right from filing of the FIR, the prosecution pla yed hide and seek game which has certainly shaken the prosecution case very ba dly. Further submission of the learned Senior counsel for the appellants is tha t the learned trial court wrongly framed the charges mentioning that the inci dent took place on 18.10.98 at 2.30 A.M. but from the evidence of P.W-1 and othe r witnesses, it has clearly been revealed that the incident took place on 17.1 0.98 at 10/10 ‰ P.M. and as such the incorrect and wrong mentioning of time at the time of framing the charges vitiated the whole trial for the simple reas on that the charges were not properly explained to the accused persons and the y were denied of chance to put up a case that no incident took place on 18.10. 08 at 2.30 AM, which is clearly against the mandatory provisions of Section 212 Cr.P.C. Last of all the learned Senior counsel submits that the appellants were not the members of any unlawful assembly and they did not participate in the a lleged act of violence and there is no reliable evidence of any independent wit ness supporting the prosecution and as such, the convict appellants are entitled to acquittal.

5. Mr. Munir, learned Addl.P.P,Assam, per contra, submits that the evid ence on records clearly established that the convict/appellants were seen by som e witnesses on the spot and they participated in the illegal action and the pro secution has been able to prove the charges beyond reasonable doubt against the convict appellants and as such the learned trial court rightly convicted them b y the impugned judgment which calls for no interference in appeal. 6. To test the correctness or otherwise of the submissions made by the lea rned counsel for the parties, I would first like to appreciate the evidence on r ecord. 7. P.W-1 , Ismail Ali is the informant in this case. He deposed that he wa s not present at his house i.e. place of occurrence and he got the information from the VDP Secretary named Hilal Ahmed. On his arrival at his house, P.W-1 fou nd about 100 persons gathering outside his house. Before his arrival, he saw the miscreants pelting stones at his house and his father, brothers, mother and sisters were kept confined inside the house . He further said that he did not s ee who pelted stones. It may be mentioned here that Hilal Ahmed, the person who informed P.W-1 about the incident was not examined by the prosecution as an witn ess. 8. P.W-2, Luftur Rahman is the brother of P.W-1. He deposed that at the tim e of incident he was inside his house. In his evidence he did not say that the miscreants who gathered at the place of occurrence pelted stones on their house. 9. P.W-3, Ainul Hoque is the cousin of P.W-1. In cross-examination he depo sed that he went to the place of occurrence only when the police came and after that he did not come to the house of Ismail again. He however, stated in his exa mination-in-chief that later on those persons came and threatened him and then drove him out from his house. He had to take shelter in the old house of his fa ther with his wife and daughter. On that day, at the morning hours, he came bac k to his house and saw that the goods of his house were stolen away. He also de posed that he could not say how many people came to the place of occurrence as i t was a dark night. 10. Abdul Nur, who was examined as P.W-4 is the uncle of P.W-1. He deposed that his house is situated at a distance of 120 to 150 Nals from the place of oc currence. As per his deposition he came to know about the incident from P.W-3 wh o told him that the house of Ismail (P.W-1) was demolished and the goods in his house were stolen away. In cross-examination he clearly stated that he could no t identify any person because he was at a distant position. It was also deposed by him that the light of Mosque did not focus clearly on the house of Ismail an d Ainul for which he was unable to identify the accused persons. 11. P.W-5, Matasin Ali is also the uncle of P.W-1. In his examination-in-ch ief he stated that hearing the police had come to the place of occurrence, he w ent there but he kept himself at a distance and was observing the police from a distance. He clearly stated in his cross- examination that he did not know who climbed up the roof of Ismail’s house and removed the C.I.Sheets and destroye d the fencing of Ismail’s house as there were about 60/70 persons at the place o f occurrence. 12. P.W-7, Abdul Mukit is also a cousin of P.W-1. In cross- examination he s tated that he heard hulla in Ismail’s house but out of fear he did not go ove r there and instead he went towards Mosque. He further deposed that he did not know who demolish Ismail’s house. 13. P.W-8, Abdul Aziz is the father of Ismail Ali, informant/PW-1. He did no t disclose the names of the accused persons. He also did not disclose the names of the persons who informed him about the incident of destroying the house. He s tated that he did not see the act of looting. 14. P.W-9 is the uncle of P.W-1 who deposed that he did not see who demolish the house of Ismail. He also deposed that other persons like Faizul,Samsul and Ismail were present but he could not identify them due to darkness.

15. On appreciation of evidence on record, I find that there is no cogent e vidence to prove the presence of the convict appellants at the place of occurren ce or their participation in the alleged incident. There is no evidence to prove that there was an unlawful assembly within the meaning of Section 141 of the IP C which is the essential requirement of offence of rioting within the meanin g of Section 146 IPC. Section 146 IPC prescribes punishment for rioting while S ection 148 IPC refers to punishment for rioting armed with deadly weapons. Charg es were brought against the convict/ appellants under these Sections. The prosec ution has not been able to adduce any evidence of a case of rioting by the pers ons armed with deadly weapons. Further charge framed against the accused/ appell ants U/S 149 IPC refers to members of unlawful assembly guilty of offence commi tted in prosecution of common object. All the prosecution witnesses in this case , except P.W-10, ( Investigating Officer), are related and interested ones. Noth ing has been brought out by the prosecution as to the common object of the accu sed persons who allegedly gathered at the place of occurrence. It may be pertine nt to refer to the evidence of P.W-10, the Investigating officer of the case, wh o is the only official witness not related to the informant. Some of the articl es of informant Ismail were recovered from the house/compound of the accused p ersons and some were found in drains and ponds. He claimed that he searched th e houses of the accused appellants and seized the stolen articles from their ho uses/ compound. On the seizure list their signatures were obtained . In most of the seizure lists, informant P.W-1 and Abdul Mukit (P.W-7), one of the cousins of P.W-1 appear thereon . Although several persons put signature as seizure w itnesses, none of them were examined as witnesses. The prosecution did no t examine any independent seizure witness to support its case that stolen goods belonging to informant were recovered/ seized. The evidence of I.O. regarding the stolen art icles is that they are common household articles which are available in any hou se and there was no mark of identification thereon. The seizure list were exhibi ted but the seized articles were not produced before the trial court. Without p roduction of those seized articles and without being testified by independent seizure witnesses, it cannot be held that the seized articles were recovered fr om the house of the accused persons and it does not stand proved that the seized articles belonged to the informant.

16. The allegation of recovery/ seizure of some articles from the house of t he accused persons influenced the mind of the learned trial court for coming to the conclusion that the accused persons including the present appellants were the members of the unlawful assembly who indulged in illegal acts U/S 147/148/ 149 IPC. I have already stated earlier that no case of offence U/S 147/148 IPC could be made out . Similarly I come to a conclusion that the prosecution coul d not make out a case U/S 149 IPC inasmuch as the presence of participation of the convict/appellants could be proved. I am of the considered view that merely because the I.O. recovered/ seized some stolen articles from the house of some of the accused persons without being able to prove that the said seized article s belonged to the informant , no court can come to a conclusion that the accuse d persons are liable to be punished U/S 149 IPC. 17. As per the established position of law, it is essential to prove that th e person sought to be charged with an offence by the aid of Section 149, was a member of unlawful assembly at the time of committing the offence and the burd en of proof lies on the prosecution. Amongst the catena of decisions, in this regard I may simply refer to one delivered by the Apex Court in Dilavar Hus sain and others Vs State of Gujrat and another reported in ( 1991) 1 SCC 253. The discussion made above amply demonstrates that the prosecution has totally f ailed to prove he existence of any unlawful assembly far less the existence of r ioting U/S 146/147/148 IPC. So also commission of offence U/S 149 IPC by the ap pellants for the failure on the part of the prosecution in proving that the ap pellants were present and participated in the alleged act of violence U/S 149 IP C with common object or they had knowledge that the offence was likely to be c ommitted by the members of the unlawful assembly in prosecution of common obj ect. 18. In my considered view the prosecution is not successful in proving t he case U/S 147/148/149 IPC. The charge U/S 448/380/427/506 IPC is unwarranted a nd no discussion is called for.The learned counsel for the appellants has broug ht to the notice of this court that there is a dispute regarding use of sarka ri fishery measuring 7 Bs-1K-17 Ls. The income of the said fishery was given for maintenance of the village Mosque since long time. However, the informant Isma il Ali and his brother encroached 1 Bigha of the said fishery and they were dist urbing the fishing. The informant and his brothers did not like the income of t he fishery be used for the Mosque. On 17.10.98, in the afternoon, while the chil dren of the appellants were playing on the bank of the aid fishery the informant and his brother prevented them which led to gun shoot by the informant near Mo sque after Isha prayer at about 8 PM of 17.10.98 seriously injuring one Abdul W ahed aged about 15/16 years. On the said incident, an FIR was lodged by one Khal ilur Rahman, the uncle of the Abdul Wahed on 18.10.98 against the informant Isma il Ali and others and a case was registered as Doboka P.S. Case No. 94/98 U/ S 147/148/326/307 IPC which gave rise to GR Case No. 795/98 and Sessions Case No . 86(N)/2001. In the said case the present informant Ismail Ali and another was convicted U/S 326/307 IPC and sentenced to 7 years imprisonment by the judgment and order dated 30.4.04. The reference to the aforesaid case is found in the e vidence of the Investigating Officer, P.W-10. Although the details of the afore said case filed against the informant are not placed on record , a brief refere nce of the said case in the evidence of Investigating Officer, is enough to sug gest that the informant filed the FIR which led to the present criminal proceedi ng as a counter blast of the case against them filed by Khalilur Rahman. The sa id case initiated at the instance of the above Khalilur Rahman reveals existence of enmity between two groups and the possibility of filing the pres ent case by the informant out of grudge cannot be ruled out. In view of the abov e back drop and on consideration of the evidence on record and the factual matri x , I do not find any legal ground for sustaining the impugned conviction and se ntence as awarded by the learned trial Court. In view of the above, the impugned judgment and order dated 28.4.04 pas 19. sed by the learned Ad-hoc Additional Sessions Judge, Hojai Sankardev Nagar convi cting and sentencing the appellants are liable to be set aside and quashed. Th e same are accordingly quashed and set aside.The convict/appellants are hereby a cquitted on benefit of doubt. It is stated that the convict/appellants are on ba il and therefore, the bail bonds shall stand discharged. Return the LCR.