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2006 DIGILAW 1002 (GAU)

Ali Ahmed v. State of Assam

2006-11-15

I.A.ANSARI

body2006
1. By the impugned judgment and order, dated 29.8.2006, passed, in Criminal Appeal No. 23/2005, the learned Sessions Judge, Barpeta, has dismissed the appeal preferred by the accused-petitioners against the judgment and order, dated 25.8.2005, passed in G.R. Case No. 360/ 1997, whereby the learned trial court convicted the present accused-petitioner No. 1, namely, Ali Ahmed, under sections 419 IPC and sentenced him to undergo, for his conviction under section 419 IPC, rigorous imprisonment for one year and pay a fine of Rs. 1,000 and, in default of payment of fine, suffer simple imprisonment for a further period of two months and also convicted the accused-petitioner No. 2, namely, Abu Rayhan Siddique, under section 109 IPC and sentenced him to undergo, for his conviction under section 109 IPC, rigorous imprisonment for a period of one year and pay a fine of Rs. 1,000 and, in default of payment of fine, suffer, simple imprisonment for a further period of two months. 2. The case against the accused-petitioners, as unfolded at the trial, may, in brief, be described, thus : On 2.4.1997, accused No. 1, Ali Ahmed, was caught by Sri Nabin Kalita, Principal of Bhabanipur Anchalic College, while accused Ali Ahmed was appearing, on behalf of accused Abu Rayhan Siddique, in the MIL (Assamese) paper of TDC Part-I examination. On being questioned by the Principal, the accused No. 1, Ali Ahmed, confessed his guilt and, on being informed by the Principal, the police arrived at the college and seized, amongst others, the answer script, which the accused No. 1 was using. After the police arrived, the accused No. 1 made an attempt to run away from the examination centre; but the police caught hold of him and arrested him. The Principal lodged a formal FIR and based on this FIR, a case was registered against the accused No. 1, Ali Ahmed, under section 409 IPC and against accused No. 2, namely, Abu Ahmed Siddique, under section 109 IPC. The investigation resulted into filing of charge-sheet against the two accused-petitioners. 3. During trial, while a charge was framed under section 419 IPC against accused Ali Ahmed, a charge under section 109 IPC was framed against accused Abu Rayhan Siddique. To the charges, so framed, the accused pleaded not guilty. 4. As many as five witnesses were examined by the prosecution during trial in support of their case. 3. During trial, while a charge was framed under section 419 IPC against accused Ali Ahmed, a charge under section 109 IPC was framed against accused Abu Rayhan Siddique. To the charges, so framed, the accused pleaded not guilty. 4. As many as five witnesses were examined by the prosecution during trial in support of their case. The accused were, then, examined under sections 313 Cr.P.C., the case of the defence being that of total denial. No evidence has, however, been adduced by the defence. Having found the two accused guilty of the respective charges framed against them, the learned trial court convicted them accordingly and passed sentences against them as indicated hereinabove. Aggrieved by their conviction and the sentences passed against them, the two accused preferred appeal, but as the appeal failed to yield any favourble result, the two accused are before this court with the help of the present revision petition. 5. I have heard Mr. A.S. Choudhury, learned senior counsel, appearing on behalf of the accused-petitioners, and Mr. K Munir, learned Additional Public Prosecutor, Assam, appearing on behalf of the State respondent(s). 6. While considering the present revision, what needs to be noted is that the evidence given by PW1, who was the Principal of the said college, is to the effect that on 2.4.1997, accused Abu Rayhan Siddique was a candidate of BA Part-I examination for MIL paper and on this day, in place of accused Abu Rayhan Siddique, the other accused, namely, accused Ali Ahmed was found to have appeared in the examination and, on inquiry, Ali Ahmed admitted that he was not the real candidate and his name was Ali Ahmed. PW1 has also deposed that on 2.4.1997, accused Abu Rayhan Siddique had not appeared in the said examination. The evidence, so given by PW1, despite a lengthy cross-examination, remained unshaken in material particulars. This apart, the fact that it was accused Abu Rayhan Siddique, who was the official examinee, was never disputed at the trial. Moreover, the fact that accused Abu Rayhan Siddique had not appeared, on 2.4.1997, as a candidate in the MIL Paper, under Roll No. 173, was also not in dispute at the trial. This apart, the fact that it was accused Abu Rayhan Siddique, who was the official examinee, was never disputed at the trial. Moreover, the fact that accused Abu Rayhan Siddique had not appeared, on 2.4.1997, as a candidate in the MIL Paper, under Roll No. 173, was also not in dispute at the trial. Though it was disputed by the defence that accused Ali Ahmed had been caught, while he was appearing as an examinee in the name of accused Abu Rayhan Siddique, the fact remains that the fact that accused Ali Ahmed was caught in the examination hall, brought by PW2 to his office, PW2 informed the police, the police came and caught hold of accused Ali Ahmed, at the office of the Principal, surfaced unscathed from the evidence of PW1. The defence did not also deny the fact that though accused Abu Rayhan Siddique had not appeared in the said examination, a person did appear on his, behalf on that day, as an examinee. PWs 2, 3 and 4, who were present in the college, at the relevant time, substantially corroborated the evidence of PW1. This apart, PW1 is not shown to have known accused Ali Ahmed nor has PW1 been proved to have animus towards any of the two accused. PW1 had, therefore, no reason to falsely implicate any of the two accused -petitioners. From the evidence of Investigating Officer, it also surfaces unscathed that on being informed that a boy had been found appearing for another candidate in the said examination, he came to the examination centre and, upon having learnt about the occurrence, arrested accused Ali Ahmed from the examination centre. 7. In the face of the evidence as discussed hereinabove, the learned trial court's conclusion that accused Ali Ahmed did appear, on behalf of accused Abu Rayhan Siddique, as a candidate, on the date aforementioned, can be safely said to have been proved beyond any reasonable doubt. It was further pointed out, at the trial, by the defence A that in his cross-examination, PW1 had stated that he had taken accused Abu Rayhan Siddique with documents from the examination hall. Laying emphasis on this stray sentence of PW1, Mr. Choudhury, now, submits that this clearly shows that it was accused Abu Rayhan Siddique, who had been caught in the examination hall. Laying emphasis on this stray sentence of PW1, Mr. Choudhury, now, submits that this clearly shows that it was accused Abu Rayhan Siddique, who had been caught in the examination hall. While considering this submission made on behalf of the accused-petitioners, what may be noted is that PW1, in the very next sentence, in this cross-examination, clarified by saying that ii was accused Ali Ahmed, who had been found in place of co-accused, Abu Rayhan Siddique. When the evidence is otherwise, clear, cogent and specific, a mistake in the use of the name cannot make the court throw away the evidence of PW1, particularly, when it has not been disputed, at the trial, as already indicated hereinabove, that accused Abu Rayhan Siddique was not the one, who had appeared in the examination, on 2.4.1997, in MIL Paper. When accused Abu Rayhan Siddique had not appeared on that day in the said examination and when the evidence on record clearly prove that accused Ali Ahmed was caught, while appearing on behalf of accused Abu Rayhan Siddique, the findings of guilt reached against the accused-petitioners by the learned trial court and their conviction cannot be said to be perverse or not sustainable in law. No legal or factual infirmity in the conclusions reached by the learned courts below could be pointed out on behalf of the accused-petitioner. The conviction of the accused-petitioners cannot, therefore, be interfered with. 8. Turning to the sentences passed against the accused-petitioners, it may be noted that the learned court below has clearly pointed out that the tendency to engage a person, on behalf of a candidate, is on the rise and unless drastic measures are adopted and strict punishment is imposed, this tendency may prove dangerous for the society. I find no reason to doubt the correctness of the reasoning, so assigned, by the appellate court for sustaining the sentences passed against the accused-petitioners. 9. Because of what have been discussed and pointed out above, I find absolutely no infirmity, legal or factual, in either the conviction of the accused-petitioners or in the sentences passed against them. 10. This revision, therefore, is not admitted and the same shall accordingly stand dismissed.