IN THE GAUHATI HIGH COURT (The High Court of Assam, Nagaland, Meghalaya, Manipur, Tripura, Mizoram and Arunachal Pradesh)

Transcription

1 1 IN THE GAUHATI HIGH COURT (The High Court of Assam, Nagaland, Meghalaya, Manipur, Tripura, Mizoram and Arunachal Pradesh) Criminal Revision No.543 of 2004 & Criminal Revision No.590 of 2004 Criminal Revision No.543 of Md. Sunu Ali Son of Md. Mojibur Rahman Village-Jonaibazar, P.S.Jonai, District-Dhemaji,Assam. 2. Md. Hasim Ali Son of Md. Aziruddin Ali, Village No.3 Morkangsalek, P.S- Jonai,District-Dhemaji, Assam. Petitioners -vs- State of Assam..Opposite party Criminal Revision No.590 of 2004 Md. Idul Ali Son of Md. Abed Ali Village-Jonaibazar, P.S.Jonai, District-Dhemaji,Assam. Petitioner -Vs- State of Assam Opposite party

2 2 BEFORE HON BLE MR. JUSTICE P K MUSAHARY Advocates for the petitioners : Mr.HRA Choudhury, in both the Petitions Sr.Advocate Mrs.A.Begum,Advocate Mr.F.U.Barbhuyan, Advocate Mr.J.Islam, Advocate Advocate for the opposite party in both the petitions : Mr. K Munir, Addl.P.P.Assam Date of hearing & judgment : JUDGMENT AND ORDER (Oral) Petitioners in the above mentioned petitions were convicted under Section 394 IPC and sentenced to suffer rigorous imprisonment for two years each and to pay fine of Rs.5000/- each in default further rigorous imprisonment for one year vide judgment and order dated passed by the learned Sub-divisional Judicial Magistrate, Jonai in G.R.Case No.124 of 2002.Against the said order of conviction and sentence, they jointly filed criminal appeal No.14(2)/04 before the learned Sessions Judge, Dhemaji which was dismissed vide judgment dated upholding the judgment of the learned trial court with modification that in default of payment of fine of Rs.5000/- the convict appellants would undergo R.I.for 9(nine) months. 2. The present petitions have been filed against the said appellate judgment and order and as such the

3 3 same have been heard together and are being disposed of by this common judgment. 3. I have heard Mr. HRA Choudhury, learned senior counsel assisted by Mr.F.U.Barbhuyan, learned counsel. Also heard Mr. K Munir, learned Addl. Public Prosecutor, Assam. I have also carefully gone through the records of the lower courts as made available at the time of hearing. 4. The prosecution story is based on written FIR lodged by one Sri Ajit Roy, wherein it has been alleged that on at about 8.30 pm, when he was on his way from Ruksin gate to Jonai bazaar to enjoy Durga puja, the accused persons restrained him in front of Jonai Forest Range Office and assaulted him and snatched away cash amount of Rs.1600/- from his back pocket and a wrist watch by putting dagger on his neck. He could identify all the four accused persons, among whom, one accused named Hasim accompanied the informant from Ruskin gate. Due to assault the informant received injuries. Investigation resulted into filing of charge-sheet and framing of charge under Section 394/34 IPC against the accused persons including one Abdul Rahman, who was declared absconder and proclaimed offender. The charge being read over and explained, the accused persons pleaded not guilty. They claimed for and stood trial. The prosecution examined five witnesses. The defence examined none. They were examined under

4 4 Section 313 Cr.P.C. After hearing the submissions of the learned counsel for the parties and on consideration of the evidence on record, conviction and sentence was imposed by the learned trial court which was upheld by the appellate court below stated above. with modification as already 5. The informant Sri Ajit Roy was examined as P.W.1. His evidence is that he closed his shop at about 8.30 pm on the day of occurrence and proceeded to Ruskin gate. He participated in the ring game. At that time one Ajizir Rahman was present with him. One Abdul Rahman (absconding accused) joined them. Thereafter the accused Hasim also joined them. They had betel nut in a pan shop and while he paid the price, the accused Hasim Ali, saw the money in the hand of informant. After taking betel nut, P.W.1 and the accused Abdul Rahman and Hasim proceeded to Jonai bazaar. He was taken in a bicycle by accused Hasim Ali and when they reached the place of occurrence, the other accused persons namely Idul Ali and Sunu Ali came over there and all of them brought him down from the bicycle. The accused Sunu put a knife at the throat of P.W.1 and dragged him with a threat that in case he puts resistance he would be killed. The accused Idul took out all the money from the pocket of P.W.1 while the absconding accused Abdul Rahman held him tight so that he would not be able to move. When the accused Hasim rang the bell of bicycle, the accused persons came from all sides. The accused Hasim, held P.W.1 leaving his

5 5 bicycle. Being afraid of accused persons, Bogamula fled away. In cross-examination P.W.1 asserted that Bogamula was present at the time of incident. 6. The aforesaid Ajijur Rahman was examined as P.W.2. He stated that he went to Ruskin gate along with the informant Ajit Roy and played ring game where they met accused Hasim Ali. He could see the cash amount of Ajit when they were taking betel nut. Accused Hasim asked them to go to Jonai. Leaving them aside, accused Hasim went to a shop alone. The said accused Hasim talked to other accused persons and left. No suspicion arose in their mind. P.W.2 was pushing the bicycle. Accused Hasim told them that he had pain at his leg and he wanted to ride the bicycle. Ajij seated on the back of the cycle and he was walking along. He further stated that when he reached Jonia Forest Range Office the accused person suddenly appeared and pressed the mouth of the informant Ajit and dragged him towards the compound of the Range Office. Accused Abdul Rahman drove him away towards the bazar. He fled away to bus stand. What happened thereafter is not known to him but on his return he saw injury on the person of Ajit. On his enquiry Ajit told him that the accused persons had snatched away the cash amount from him. The accused persons also assaulted him and took away the wrist watch. He saw the bicycle lying nearby. He lifted the bicycle and informed the police on duty at Durga Mandir about the incident. While proceeding to Jonai bazaar they saw the accused persons

6 6 and they pointed at them. The police tried to apprehend them but they fled away. One of the accused persons left his sandal behind. In cross examination he stated that accused Hasim was the main culprit. The accused persons are known to him since before. 7. The medical officer Dr. Robin Deka was examined as P.W.4. He stated that on at about 9.50 pm he examined Ajit Roy (informant) at Jonai Primary Health Centre. He found bruises at right and left elbow area, right shoulder area umbilical area which was 2 cm x ½ cm. The injuries were simple in nature caused by blunt weapon. 8. From the above evidence on record it is established that the informant was assaulted and some cash amount was taken away with a wrist watch from his possession. Of course, it has not been proved how much cash amount was taken away from him. P.W.2 was an eye witness to the alleged incident of taking the informant to the compound of the Forest Range Office, act of assault on him and taking away some cash amount from his possession by the accused persons. The P.W.2 could identify the accused persons as because they are all local people,. Similarly P.W.1 also knew the accused persons as they belong to the same locality. One shop keeper P.W.3 Sri Gopendra Namasudra was examined by the prosecution. He testified that he knew accused Idul and Sunu. The incident took place during Durga Puja. Accused Idul came to his shop and paid one hundred

7 7 Rupee note and asked him to take Rs. 20/- and return Rs.80/-. Just after two hours of the aforesaid episode, police came to his shop along with Idul and as asked by the police he handed over the one hundred Rupee note which was tendered by the accused Idul to him. The evidence of P.W.1,2 and 3 are found corroborating each other in material particulars. The defence could not demolish the said evidence. The accused simply denied the charge without adducing any evidence in their defence. In cross examination no suggestion was put by the aforesaid witnesses to the aforesaid P.W.1,2 and 3 that all of them had rivalry and out of grudge a false case was initiated or false evidence was given against them. In my considered view the prosecution succeeded in brining the charge against the convict petitioners and no interference is called for in regard to the conviction awarded by the learned courts below against the convict petitioners. 9. As regards the sentence I am of the considered view that imposition of sentence for two years rigorous imprisonment with fine of Rs.5000/- each is not justified on the face of the fact that the amount involved was Rs.1,600/- only and the informant received minor injuries on his person. That apart, the convict petitioners are simple living cultivators without any criminal records. Ends of justice and the purpose of penalty would be served if the sentence of rigorous imprisonment of two years is reduced to the period already undergone in custody during investigation /trial and if the amount of

8 8 fine is reduced from Rs.5000/- to Rs.500/- each to be paid by the convict petitioners and in default to undergo imprisonment for one month only. It is ordered accordingly. The petitions stand partly allowed reducing the sentence of two years rigorous imprisonment to the period already undergone and fine to the tune of Rs.500/- each and in default imprisonment S.I.for one month. The petitioners are directed to deposit the amount of Rs.500/- each in the court of learned SDJM, Jonai within a period of 40 days from today and on receipt of the said amount the learned SDJM shall disburse the same to the informant. With the above modification in the sentence, the petitions stand disposed of. 10. Sent down the LCRs forthwith. JUDGE Nandi