Research › Search › Judgment

Gauhati High Court · body

2007 DIGILAW 333 (GAU)

Pabitra Gohain @ Kulai Gohain v. State of Assam

2007-05-08

AFTAB H.SAIKIA

body2007
1. Heard Ms. R.D. Mazumdar, learned amicus curiae. Also heard Mr. B. Buragohain, learned P.P., Assam. 2. The legality and correctness of conviction of the appellant under section 395, IPC and subsequent, sentence to undergo rigorous imprisonment for five years and also to pay a fine of Rs. 1,000.00 only in default to suffer further regorous imprisonment for l(one) month imposed by the learned Additional Sessions Judge No. 1, Tinsukia by his judgment and order dated 30.1.2004 in Sessions Case No. 108 (T) 2003 has been assailed in this criminal appeal preferred from Jail. 3. The prosecution case, in short, may be noticed. On 25.1.2003 at about 8 P.M. when the P.W.I, Shri Guneswar Gogoi at Uparuban Gaon was sitting near fire alongwith his wife and his friend, namely, Sri Jiten Chutia, P.W.6, 6/7 persons covered their face with black cloths and with guns in their hands entered into the house of P.W.I and those culprits commanded them to raise their hands and alognwith those persons mentioned above were compelled to come out from the house and sit outside P.W.6 ; Jiten Chutia was assaulted by dao and some of the culprits went inside the house and took out gold ornaments and cash amounting to Rs. 5,000. Thereafter the culprits fled way from the house. P.W.3, Sri Biplab Gogoi, the youngest son of the complainant-P.W. 1 who was sitting inside the house at the time of occurrence was asked to remain asleep by those culprits and at that moment one of the culprit removed his black cloth covering the face and at that point of time P.W.3 could identify the culprit as Sri Pullen Gohain the appellant . On the next day, i.e., 26.1.2003, P.W. 1 lodged ejahar with the Kokrajhar Police Station and on receipt of the ejahar the police case being Kakopathar P.S. Case No. 7 of 2003 under section 395, IPC was registered and investigation ensued. During the course of investigation, the1 appellant was arrested and on completion of such investigation, police submitted charge-sheet against him under section 395, IPC. 4. The case being triable exclusively by the Court of Sessions, the same was committed by the learned Judicial Magistrate, 2nd Class, Tinsukia to the Court of Sessions Judge, Tinsukia. 5. During trial the prosecution examined as many as 7 witnesses to bring home the charge against the appellant when the defence examined none. 4. The case being triable exclusively by the Court of Sessions, the same was committed by the learned Judicial Magistrate, 2nd Class, Tinsukia to the Court of Sessions Judge, Tinsukia. 5. During trial the prosecution examined as many as 7 witnesses to bring home the charge against the appellant when the defence examined none. The defence was total denial. The accused were also examined under section 313, Cr.PC. 6. On appreciation of material evidence on record both oral and documentary, the learned Judge found the appellant guilty of offence of dacoity and convicted accordingly under section 395 and sentenced him as mentioned above. 7. Challenging the impugned conviction and sentence, Ms. Mazumdar has forcefully contended that the conviction solely on the basis of the testimony of P.W.3 so examined by the prosecution as the eye-witness, cannot be tenable in law inasmuch as the evidence of P.W.3, Biplab Chutia cannot be accepted to be reliable and credible. According to her, it is admitted position that at the time of uncovering the face of the appellant which was covered by black clothes inside the room, there was no light and it was not possible to identify a person without light, in a village and that too at the time of 8 p.m. in the month of January. It has come on the evidence expressly and specifically that during the relevant time, there was no light in the room when he identified the appellant after he removed his black clothes from his face and that being the position, the PW-3 being the only person to identify the appellant cannot be said to be trustworthy witness and conviction cannot be based on the piece of evidence. It is also argued by her that essential ingredients of section 391, IPC, i.e., Dacoity to convict the appellant under section 395, IPC were not present in the case and as such the appellant is entitled to get benefit of doubt and accordingly he may be acquitted. 8. On the other hand, Mr. It is also argued by her that essential ingredients of section 391, IPC, i.e., Dacoity to convict the appellant under section 395, IPC were not present in the case and as such the appellant is entitled to get benefit of doubt and accordingly he may be acquitted. 8. On the other hand, Mr. B. Buragohain, learned PP has strenuously argued that a known person of the same village can easily be identified in close range despite sufficient light and in this aspect he has relied upon the evidence of P.W.2, the wife of Sri Guneswar Gogoi and P.W.3 Biplab Gogoi who corroborated to indict the appellant for commission of the offence and taking into account the evidentiary value of those witnesses the conviction and sentence imposed by the learned Judge upon the appellant was justified and the same does not call for interference. 9. Having closely appreciated the evidence of the witnesses basically PW1, PW2 and PW3 it appears from the perusal of their testimony that though it was alleged that 6/7 criminals entered into the house, it was only 3 of them who actively participated in the commission of dacoity according to the prosecution and that too only the appellant was arrested and tried when requirement of law for commission of such offence under section 391 is that there must be five or more persons involved conjointly to commit or attempt to commit a robbery. 10. More significantly when it was alleged that there were 6/7 persons involved in the offence, only one person, i.e., the appellant was found to be identified as an associate in the commission of crime under section 391, IPC. There was no explanation placed on record by the prosecution as to why other accused persons could not be named or identified even after thorough interrogation, if those persons were at all involved in the offence under section 391, IPC, even though other accused persons were not arrested and tried. 11. Most significantly there was no disclosure of names of other accused by the appellant. Moreso identification of the appellant was also doubtful. 12. In addition, no articles as such as alleged to have been obtained by theft by the appellant were ever recovered from the possession of the appellant. 11. Most significantly there was no disclosure of names of other accused by the appellant. Moreso identification of the appellant was also doubtful. 12. In addition, no articles as such as alleged to have been obtained by theft by the appellant were ever recovered from the possession of the appellant. The prosecution's case so set up through the testimony of P.W.3 that though there was no light inside the room at about 8 pm in the month of January, the appellant was identified by P.W.3 immediately when the appellant's face was uncovered by removal of black cloth used for covering the face, cannot be accepted because the evidence pertaining to identification of the applicant inside the room is itself unreliable and lack of truthfulness and as such the considered opinion of this court is that the evidence of PW3 who is projected as main and only person to identify the appellant, is liable to be brushed aside. 13. PW3 in his deposition categorically stated that there was no lamp in his room where he slept. Non-existence of lamp in the room sufficiently gave rise to doubt as regards the question of identification of the appellant in a winter night in a village house at about 8 pm.-That being the position the testimony of PW3 failed to inspire confidence in the mind of the court so as to convict the appellant for the offence of section 395, IPC when no other statutorily required persons were tried. 14. Sections 391, IPC and 395, IPC read as under : '391. When five or more persons conjointly commit, or attempt to commit a robbery or where the whole number of persons conjointly committing or attempting to commit a robbery and persons present and adding such commission or attempt, amount to five or more, every person so committing, attempting or aiding, is said to commit "dacoity".' 395. Whoever commits dacoity shall he punished with imprisonment for life, or with rigorous imprisonment for a term which may extent to ten years, and shall also be liable to fine." 15. It is seen from the above provisions of law relating to dacoity and its punishment that there must be five or more persons and all of them should act conjointly. It is seen from the above provisions of law relating to dacoity and its punishment that there must be five or more persons and all of them should act conjointly. In the case in hand, only the appellant was arrested, tried and convicted under section 395, IPC which is not permissible under the law in absence of any proper explanation in this regard on behalf of the prosecution. 16. In view of the above, this court is of the view that the impugned conviction and sentence cannot be sustained and accordingly same stands set aside and quashed. 17. The appellant be released forthwith if he is not otherwise required in any other case. 18. In the result, this appeal succeeds and stands allowed. 19. LCR be send down immediately. 20. Before parting with the case record, I would like to put on record my appreciation to Ms. R.D. Mazumdar, learned amicus curiae for rendering her valuable assistance and help in arriving at the aforesaid decision and accordingly we order that she is entitled to get his professional fees which is quantified at Rs. 2,500.