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

Transcription

1 IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MEGHALAYA, MANIPUR, TRIPURA, MIZORAM AND ARUNACHAL PRADESH) Crl. Revision 11/2004 Sri Pintu Das, Son of Late Arun Das Resident of Philobari Udaypur Gaon, P.O. Gabharubheti, P.S. Doomdooma, district Tinsukia, Assam. Petitioner -VS- The State of Assam. Respondent PRESENT THE HON BLE MR. JUSTICE P.K.MUSAHARY For the petitioner : Mr. D.R. Gogoi Advocate For the Respondent : Mr. K. Munir Public Prosecutor, Assam Date of hearing & Judgment : JUDGMENT AND ORDER (ORAL) Heard Mr. D.R. Gogoi, learned counsel for the convict petitioner. Also heard Mr. K. Munir, learned Additional P.P., Assam, appearing for the respondent State.

2 2 2. The petitioner was convicted u/s 392 IPC and sentenced to undergo R.I. for 1 year and 6 months and to pay fine of Rs. 500/- in default further S.I. for 15 days vide judgment and order dated passed by the learned CJM, Tinsukia in G.R. Case No. 1219/1998 and his appeal preferred against the aforesaid conviction and sentence was dismissed vide judgment and order dated 29/10/2003 passed by the learned Additional Sessions Judge I, Tinsukia in Crl. Appeal No. 13(2)/2003. The present petitioner, is, therefore, before this Court by filing the instant revision petition for quashing and setting aside the said conviction and sentence. 3. For the purpose of disposal of this petition, the prosecution story, in brief, is that as per the FIR lodged by the informant, two unidentified persons, one of them with a machi dao in his hand and the other holding a pistol, obstructed the informant Sri Deo Nath Singh when he reached a weighing house of Kamchung Tea garden at Banhbari at about 9.30 A.M. on The aforesaid persons threatened the informant to kill him and took away cash amount of Rs. 30,000/- from his pocket which he collected from different persons as sale proceeds of rice. The ejahar filed by him was registered as Kakopathar Police Station Case No. 61/98 under Section 392 IPC. The I/O visited the place of occurrence, completed the investigation and submitted charge sheet u/s 342 IPC. The learned trial court framed charge against the convict petitioner u/s 392 IPC and on conclusion of trial convicted and sentenced him under the aforesaid Section of law as

3 3 stated above which was upheld in Crl. Appeal No. 13(2)/2003 by the learned appellate court below. 4. I have gone through the records and evidence of the witnesses recorded by the learned trial court. 5. The I/O Sri Ganakanta Bora who was examined as PW 5 is an important witness. According to his evidence the accused petitioner was wanted in some other criminal case. He visited the place of the accused and a lady named Reshma Begum who had a link with the convict petitioner. A cash amount of Rs. 2200/- was recovered from the possession of the aforesaid Reshma Begum which was reportedly given by the accused petitioner. The present petitioner was initially arrested on suspicion and he was brought to the police station for further interrogation. According to the said I/O he could recover a dagger from a place as shown by him and the said convict petitioner allegedly admitted his involvement in the commission of offence. 6. I have carefully perused the contents of the FIR (Ext -1). There is no mention about the dagger. The informant categorically stated in the FIR that one of the offenders was holding a machi dao. His evidence before the Court is found to be contradictory. Moreover the informant, in his FIR, stated that two unidentified persons obstructed him on the way and he would be able to identify them by their face if he could see them. But in his evidence before the Court, he deposed that he knows the

4 4 accused petitioner. It means that if he knew the petitioner since before why he did not mention his name in the FIR is beyond anybodies apprehension. Admittedly no T.I.P. was held/conducted in accordance with law before submission of charge sheet. The informant for the first time could see the accused in the dock and stated before the court that he knew the accused. 7. I am of the considered view that the prosecution proceeded against the convict without prima facie establishing the identity of the person involved in the offence, inasmuch as, as per the version of the informant he was obstructed and robbed under threat by two identified persons. From the record it is also found that the I/O never bothered to call the informant to the police station to identify the accused after he was arrested and brought to police station. Normally when a suspect is arrested, the informant or interested party is to identify the arrested person. Here is a case where a suspect in other criminal case was arrested. It appears that the prosecution without establishing the identity of the real person involved in the case or without collecting materials establishing prima facie involvement of the present accused petitioner in the alleged offence sent him up for trial. 8. On appreciation of the entire evidence and material on record, the Court is not satisfied that the prosecution has been able to establish the charge against the accused petitioner beyond any reasonable doubt. The

5 5 prosecution proceeded wrongly against the petitioner merely on misconception of law. 9. In view of the above, I am of the considered view that the convict petitioner is entitled to acquittal on benefit of doubt. Petition stands allowed. Ordered accordingly. 10. It is stated at the Bar that the convict petitioner is on bail. The bail bond stands discharged. 11. Return the LCR forthwith. JUDGE arup