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2008 DIGILAW 607 (GAU)

Suton Dutta Gupta v. State of Assam

2008-08-14

H.N.SARMA

body2008
JUDGMENT H.N. Sarma, J. 1. This Criminal Revision Petition is directed against the Judgment and Order dated 11.7.2008 dismissing the Crl. Appeal 35(N)/2006 thereby confirming the conviction of the Petitioner under Sections 451/ 323/ 427 of the IPC by the learned Judicial Magistrate, First Class, Sankardev Nagar, Hojai in GR case No. 3/2003 reducing the sentence of imprisonment under Section 451, IPC from six months to one month and to pay a fine of Rs. 1,000/- each under Sections 323/ 427, IPC, in default to undergo simple imprisonment for one month. 2. Heard Mr. M.K. Choudhury, the learned Senior Counsel for the Petitioner and Mr. K. Munir, the learned P.P. for the State. 3. The prosecution case, inter alia, is that, on 1.1.03 the informant, PW1, Sri Nageswar Kutum lodged an FIR before the O.C., Lumding Police Station, stating inter alia, that on the previous night at about 9 P.M., the accused Petitioner alongwith two other persons forcibly entered into his quarter demanded Rs. 50,000/- from him and on his refusal to pay the amount the informant assaulted him, caused injuries and ransacked his house damaging certain household goods. The accused further intimidated the informant of dire consequences, if, he failed to meet the demand of the money within two days. Upon receipt of said FIR, police registered a case under Sections 456/ 323/ 427/ 34, IPC and started investigation. The case was initially investigated by PW 5 and on his transfer from the said Police Station, the investigation was completed by PW 6. 4. During the course of investigation certain materials were seized vide Ext-2 and statements of witnesses were recorded and having found prima facie commission of offence under Sections 456/323/ 427, IPC, charge-sheet was submitted against the Petitioner and he was sent for trial. On the basis of the materials submitted under Section 173 Code of Criminal Procedure charges were framed against the accused-Petitioner under Sections 456/ 323/ 427, IPC, which, on being explained, he denied and claimed to be tried. 5. In order to bring home the charges against the Petitioner the prosecution examined as many as six witnesses. The Petitioner was also examined under Section 313 Code of Criminal Procedure, putting the circumstances that appeared against him during examination of PWs, which he denied. 6. 5. In order to bring home the charges against the Petitioner the prosecution examined as many as six witnesses. The Petitioner was also examined under Section 313 Code of Criminal Procedure, putting the circumstances that appeared against him during examination of PWs, which he denied. 6. The learned trial court after appreciation of the evidence and materials on record and after hearing the learned Counsel for the parties convicted the Petitioner under Sections 451/ 323/ 427, IPC and sentenced him vide judgment and Order dated 28.11.2006 in the manner as aforesaid. The said judgment was carried into the Crl. Appeal 35(N)/2006 before the FTC, Nagaon, and vide Judgment and Order dated 11.7.2008, the learned Additional Sessions Judge, Fast Track Court, Nagaon, maintained the order of conviction passed by the learned trial court but reduced the period of imprisonment from six months to one month under Sections 451/ 323/ 427, IPC. The accused was also sentenced to pay a fine of Rs. 1,000/- for each offence, in default, with further imprisonment for one month. Challenging the said judgment passed by the learned appellate court, the present revision petition is filed. 7. Mr. Choudhury, the learned Senior Counsel, has submitted that in the instant case the prosecution not having examined any independent witnesses, it is not safe to accept the statements of the PWs 1 to 3 who are interested witnesses. It is further submitted that the learned trial court also committed illegality in alternating the charges under Sections 456/ 451 without providing any opportunity to the Petitioner. Other contention of the learned Counsel is that on proper appreciation of materials and evidence on record, it cannot be said that the prosecution has been able to prove the case beyond all reasonable doubt against the accused and accordingly the order of conviction of sentence is illegal, improper and unjust. 8. Refuting the aforesaid submissions, Mr. Munir, the learned Addl. P.P. submits that the power of this Court in exercising the revisional jurisdiction is well defined and is limited and restricted to the question of jurisdiction only as provided under Section 401 Code of Criminal Procedure and the Court would not go to re-appreciate or reassess the concurrent findings arrived at by the courts below. Munir, the learned Addl. P.P. submits that the power of this Court in exercising the revisional jurisdiction is well defined and is limited and restricted to the question of jurisdiction only as provided under Section 401 Code of Criminal Procedure and the Court would not go to re-appreciate or reassess the concurrent findings arrived at by the courts below. It is further contended that although the courts below are concurrent in their appreciation of the evidence adduced by the prosecution and since the prosecution has been able to prove the case beyond all reasonable doubt by clear and co-agent and consistent statements of the PWs 5 and 6, the same requires no interference. 9. I have considered the rival submissions made by Mr. Choudhury and perused the evidence of PWs and DWs, in order to justify, as to whether, the impugned judgment suffers from perversity and/or illegality or impropriety, but not for re-appreciation. PW 1 is the complainant himself. He has categorically stated that on 31.12.2002 at about 9.15 P.M. three persons covering their faces with clothes entered into his room and broke the stabilizer of the fridge and the mirror of his dressing table. When he enquired about the same the accused drag his maid servant, PW 3, and when he tried to prevent the miscreants from doing so, the miscreants physically assaulted him. According to the complainant, he could recognize the Petitioner and other two persons when the mask they were wearing fell down from their faces. The accused demanded a sum of Rs. 50,000/- within two months and on failure to pay the same they threatened to set his house on fire with his family members. He further stated that the accused took with them the fare ticket book from his duty bag. The complainant sustained injury on the joint of his left hand. On the next day the complainant lodged the FIR, Ext-1 wherein Ext 2/1 is his signature. Vide Ext-2 the police seized the broken stabilizer, one broken piece of furniture and broken pieces of mirror to which he (PW 1) was a witness. The statements given by the prosecution in his chief could not be shaken during his cross-examination. PW 2 is Feroj Kutum son of PW 1. He stated inter alia that PW 3 and he were playing ludo on that day when the occurrence took place. The statements given by the prosecution in his chief could not be shaken during his cross-examination. PW 2 is Feroj Kutum son of PW 1. He stated inter alia that PW 3 and he were playing ludo on that day when the occurrence took place. PW 2 and PW 3 fully corroborated the statement of PW 1, the informant. PW 4 is the Doctor who examined the informant on 1.1.2003 while he was serving as Senior Medical Officer in the Lumding Civil Hospital. He upon examination of the informant PW 1, found tenderness over the left shoulder and clavicular region. In his opinion, the injury was simple and the duration of the injury was 24 hours caused by blunt weapon. He proved the Medical Report given by him as Ext-3 and Ext-3(1) is his signature. In cross the Doctor stated that the injury referred by him in Ext-3 may be caused due to dashing or falling on hard substance. PW 5 is the I/O, who was initially given the charge of investigation, after examination of the accused informant, on his transfer from the said police station, he handed over the case to PW 6. PW 6 is the I/O who completed investigation and submitted the charge-sheet against the accused-Petitioner. In cross, the I/O has stated that although there are three persons named in the FIR, except the Petitioner the two persons who were also involved in the case alongwith the Petitioner, not having been found in the locality were not arrested or interrogated by the I/O. The learned Counsel for Petitioner further stated that no independent witness apart from inmates of the house were examined by prosecution and they are all interested witnesses and hence their evidence are to be discarded. The occurrence took place at about 9.15 P.M, night in the residential quarter of the complainant, PW 1. At that time, it is not expected that the other person would remain present at the place of occurrence. That apart, the occurrence took place inside the residential quarter of the complainant where only the inmates of the house were present at that time. There is nothing on record to show that apart from the PWs 1, 2, 3 some other persons were also present at the place of occurrence. That apart, the occurrence took place inside the residential quarter of the complainant where only the inmates of the house were present at that time. There is nothing on record to show that apart from the PWs 1, 2, 3 some other persons were also present at the place of occurrence. In such a case the inmates of the house are the most natural witnesses to the occurrence and in fact the PWs 2 and 3 have corroborated the statements made by the other PWs. Nothing could be shown as to why their evidence should be discarded. Accordingly, the aforesaid contention raised by the learned Counsel has no legs to stands. Another contention raised by Mr. Choudhury, is relating to the manner and method of investigation, more particularly, in not admitting to apprehend the other two accused-persons by the I/O mentioned in the FIR. The I/O in his evidence has stated that those two persons, on enquiry could not be found and apprehended, and, accordingly were left out. The alleged irregularity in amending charge from Section451 to Section 456, IPC, without giving any opportunity to the accused was also considered. This contention was also raised before the learned appellate court and the learned appellate court referring to Section 222 Code of Criminal Procedure which empowers the court for such amendment of charge at any stage rejected the contention of the Petitioner. Section 451 relates to an offence of house trespass in order to commit offence whereas Section456, IPC, relates to punishment for lurking house trespass or house breaking by night. House trespass is the general offence under the provisions of law, but offence committed under Section451, IPC, is punishable with imprisonment for a term which may extend to two years and also with fine and if the offence is intended to commit theft the term of imprisonment may be extended to seven years. House trespass is the general offence under the provisions of law, but offence committed under Section451, IPC, is punishable with imprisonment for a term which may extend to two years and also with fine and if the offence is intended to commit theft the term of imprisonment may be extended to seven years. Section 406, IPC provides that whoever commits lurking house trespass or house breaking by night shall be punishable with imprisonment for a term of three years and also be liable to fine if both the offences are general offences and in the instant case there having sufficient evidence on record regarding house trespass in order to commit an offence punishable under Section 451, IPC and in view of the provisions of Sections 222/ 220 Code of Criminal Procedure, the learned court below committed no error justifying interference with the impugned judgment on that count, more particularly, no prejudice to that effect could be shown by the accused. At this stage Mr. Choudhury has submitted that the offence under Section 451, IPC may be converted into an offence under Section 448 and in an offence under Section 448, IPC imprisonment is not mandatory. The Petitioner may be left with a fine only by convicting him under Sections 448/323/ 427, IPC and be left of by imposing fine. 10. I have given my anxious consideration to the said submission made by the learned Counsel. Section 448 of the IPC deals with punishment of the house trespass and whoever commits house trespass is punishable with imprisonment with fine as provided therein. Section 451 of the IPC, on the other hand, provides that whoever commits house trespass in order to commit any offence punishable with imprisonment, he shall be punished in the manner provided therein and also liable to fine. Section 448 of the IPC deals with simple house trespass whereas Section 451 deals with house trespass for committing an offence punishable with imprisonment and such offence has already been committed by the Petitioner under Section 323/ 427, IPC. Accordingly the aforesaid submissions of Mr. Choudhury is not tenable in law. Section 448 of the IPC deals with simple house trespass whereas Section 451 deals with house trespass for committing an offence punishable with imprisonment and such offence has already been committed by the Petitioner under Section 323/ 427, IPC. Accordingly the aforesaid submissions of Mr. Choudhury is not tenable in law. In fact, on perusal of the evidence and materials on record, I find that the prosecution has been able to prove the allegation of house trespass in the home of the Complainant, P W1 on the date of occurrence at about 9.15 P. M., and the injury caused by the Petitioner has also been corroborated by the medical evidence. In fact in the cross-examination of the complainant, the allegation against the Petitioner has not been specifically denied. 11. In view of the above, I do not think that the learned court below has committed any illegality, irregularity or impropriety in passing the impugned judgment and accordingly this criminal revision petition is found to be without merit and it stands dismissed. 12. At this stage, Mr. Choudhury, the learned Counsel has submitted that the Petitioner be given one month time to surrender before the learned trial court to serve out the remaining sentence. In this regard the Petitioner may file an application before the learned trial court and in doing so, the learned trial court shall consider the grounds that may be agitated by the Petitioner and shall pass appropriate order in accordance with law, since the Petitioner has expressed his intention to serve out the sentence.