IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM:NAGALAND:MEGHALAYA:MANIPUR: TRIPURA: MIZORAM & ARUNACHAL PRADESH)

Transcription

1 1 IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM:NAGALAND:MEGHALAYA:MANIPUR: TRIPURA: MIZORAM & ARUNACHAL PRADESH) CRIMINAL REVISION No.236 of 2004 Ala Uddin Laskar, Son of late Yusuf Ali Laskar, Village-Gangpar Dhumkar Pt.III P.O- Lakshmisahar District- Hailakandi. -Vs- The State of Assam Accused /Petitioner.Opposite party BEFORE HON BLE MR. JUSTICE P K MUSAHARY For the Accused/ Petitioner :Mr. HRA Choudhury. Sr.Advocate, Mr. F.U. Borbhuyan,Advocate For the Opposite Party :Mr. K.Munir, Addl. P P Assam. Date of hearing : and Judgment JUDGEMENT & ORDER (Oral) The petitioner was convicted under Sections 447/ 354 IPC and sentenced to undergo simple imprisonment for one month with fine of Rs.1000/- in default simple imprisonment for fifteen days vide judgment and order dated passed by the learned Addl. CJM, Hailakandi in GR case No. 811/ He preferred the appeal against the said conviction and sentence before the learned Sessions Judge, Hailakandi which was registered as Criminal Appeal No. 26 of The appeal was

2 2 dismissed, upholding the conviction and sentence awarded by the learned trial court vide judgment and order dated Being further aggrieved by and dissatisfied with the appellate court s judgment, petition. the petitioner has filed the present 4. To state in brief, the prosecution case is that on , while the daughter of the informant came out with a lamp to attend call of nature at about 8 p.m., the accused Ala Uddin appeared behind her, put off the lamp and outraged her modesty by catching her hand and pulling her. While she made hue and cry, the accused fled away. An Ejahar was lodged by the father of the victim on with the O.C. of Hailakandi Police Station. A crime being Hailakandi P.S.Case No.316/2000 was registered under section 447/354 IPC and on completion of the investigation charge-sheet was filed under Sections 447/354 IPC against the accused petitioner. The learned trial court framed charge under the aforesaid Sections and the said charge being read over and explained, the accused pleaded not guilty and stood the trial. The prosecution examined as many as seven witnesses including the victim. No witness was produced by the defence. On completion of trial and upon hearing the learned counsel for the parties, the learned trial court convicted the accused petitioner as indicated above which was upheld by the learned Sessions Judge in appeal. 5. At the out set, Mr. Choudhury, learned Senior Counsel submits that the convict petitioner had expired on while he was serving as Grade-IV employee in the Revenue Settlement Office in the Establishment of Deputy Commissioner, Hailakandi. He requested the court to dispose of the petition on merit, although the petitioner is no long alive, in terms of the Apex Court s decision rendered in the State of Kerala Vs- Narayani Amma Kamala Devi and ors, reported in AIR 1962 SC 1530

3 3 and Pranab Kumar Mitra vs- State of West Bengal and another reported in AIR 1959 SC 144. There is no dispute at the bar that the matter should be heard and disposed of on merit. 6. Mr. Choudhury, learned senior counsel has taken me through the evidence on record, particularly the evidence of P.W.2, victim girl, and her father informant (P.W.1) and also the evidence of independent witnesses namely P.W. 4,5 and On going through the evidence of P.W.2 (victim girl) it is noticed that she was alone at home as her father was away at the relevant point of time. She came out with a hurricane lamp to attend the call of nature. She was caught hold and pulled by the accused petitioner and when she made hue and cry the accused left the place. In her cross examination, she stated that she called her father. The neighbours were aware about the incident but nobody turned up even after hearing her cries. Nobody came and enquire even after the accused left the place of occurrence. In the other words as stated by her, nobody came to enquire about the alleged incident. The alleged incident took place at about 8 pm when people were yet to go to bed. The informant was examined as P.W.1. He is the father of the victim girl. As per his deposition, he was present nearby the house and hearing the hue and cry he immediately came to the place of occurrence. He could see the accused running away towards his house. In the next morning he lodged complaint in the village but nobody responded. He particularly reported the matter to co-villagers, P.Ws.4,5 and 6. The aforesaid three villagers, P.Ws 4,5 and 6, testified in their evidence that the first informant informed them about the incident but at the same time they stated that the accused also came to report that an amount for Rs.20,000/- was snatched away by the informant and his son from him in the previous day. He also demanded village bichar. In the cross examination, P.W.1 stated that there was a rivalry regarding assault of the mother of the

4 4 accused by the informant and in the village bichar the informant was fined with Rs.200/-. Of course, he denied the suggestion put by the defence. 8. I am of the considered view that the old rivalry which has been surfaced in the evidence is not to be taken into account seriously in this case. The charge against the accused petitioner is to be considered on the basis of the evidence, more particularly, the evidence of the victim girl (P.W.2) and the informant (P.W.1). The veracity of evidence of these two witnesses should be examined. In other words, it is necessary to test the truthfulness and reliability of the evidence of the victim girl inasmuch as the conviction can be imposed on the basis of the sole evidence of the victim girl in such cases. It is to be noted that there is no eye witness to the alleged incident. The evidence of the victim, so far it relates to her cry for help, is not corroborated by any witness. Moreover, it does not reveal from her evidence that as soon as the informant returned home, the victim narrated the incident to him in details. What she reported to her father is not found in her deposition. The informant saw the accused person running away towards his home but the informant did not try to prevent or chase the accused person although he was running away in a suspicious manner. The conduct of the informant in not trying to prevent the accused or to chase him is quite unnatural. The informant did not try to gather any person immediately to get hold of the accused person. On close examination of the evidence of P.W. 1 and 2, I am unable to persuade myself to accept their evidence as cogent, reliable and trustworthy for the purpose of awarding conviction and sentence. For the reasons stated above, I differ from the findings and conclusion arrived at by the learned courts below. Accordingly, the impugned conviction and sentence passed by the learned courts below are set aside and quashed. The convict petitioner stands acquitted. Bail bond also stands discharged.

5 5 9. Return the LCRs. JUDGE Nandi