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2009 DIGILAW 500 (GAU)

Md. Joynal Mir v. State of Assam

2009-07-29

P.K.MUSAHARY

body2009
JUDGMENT P.K. Musahary, J. 1. Heard Mr. J.M. Choudhury, Learned Senior Counsel assisted by Ms. N. Bharali, Learned Counsel for the accused-appellants. Also heard Mr. B. Gogoi, learned Additional Public Prosecutor, Assam. 2. This appeal has been filed against the judgment and order dated 26.12.2002 passed by the learned Additional Sessions Judge (ad hoc),. Barpeta in Sessions Case No. 81/2000 convicting and sentencing the accused-appellants and sentencing then under Section 365 of IPC to suffer rigorous imprisonment for 3 (three) years and also to pay fine of Rs. 2,000 (Rupees Two Thousand) only in default, simple imprisonment for one month. 3. The prosecution case in brief is that on 24.8.1996, while the informant Shri Alam Hussain was waiting for bus at Bahari bus stand, the accused persons, namely, Joynal Mir, Imran Khan, Dayar Uddin, Zakir Hussain and Abul Malek abducted him in a Maruti Van bearing registration No. AS-01/E-7144 with intention to kill him. They snatched away a cash amount of Rs. 1,250 from him. The informant raised hue and cry and on hearing the same, the people of Kathalguri village stopped the said vehicle on the road and saved the informant from the hands of the accused persons. The members of the Village Defence Party ('VDP') came to the spot and the accused persons were handed over to the police. An FIR was lodged by the informant Alam Hussain with the O.C. Barpeta Police station and as the place of occurrence falls under Tarabari P.S., the said FIR was forwarded to O.C. Tarabari P.S. who registered the crime being Tarabari P.S. Case No. 72/96 under Section307/397 IPC. 4. The Investigating Officer visited the place of occurrence and recorded the statement of some witnesses under Section 161, Cr.PC. He seized cash amount of Rs. 1150 only which was recovered and produced by Bagudi VDP and members of public of Hahchora from the possession of the accused persons vide seizure list, Ext. 2. The aforesaid Maruti Van was also seized by police along with relevant documents of the said vehicle vide seizure list, Ext. 3, in presence of the witnesses and after completion of the investigation, the police laid the charge sheet against the accused persons under Section 365/307/379, IPC. On committal, the learned session court framed charges against the accused persons under Section 367/34/379, IPC. 3, in presence of the witnesses and after completion of the investigation, the police laid the charge sheet against the accused persons under Section 365/307/379, IPC. On committal, the learned session court framed charges against the accused persons under Section 367/34/379, IPC. The charges being read over and explained, the accused persons pleaded not guilty and claimed to stand trial. 5. The prosecution, in order to bring home the charges against the accused appellants, examined as many as 10 (ten) witnesses, including the Investigating Officer. The defence adduced no evidence. On conclusion of trial and after hearing the Learned Counsel for the parties, the learned Additional Sessions Judge (ad hoc) Barpeta passed the impugned judgment dated 26.12.2002 convicting and sentencing them as mentioned above. 6. Mr. J.M. Choudhury, Learned Senior Counsel for the accused-appellants at the outset, submits that on the very face of evidence of the informant who was examined as PW1, no case of kidnapping has been made out against the accused-appellants and as such the accused-appellants are not liable to be convicted under the aforesaid provisions of law and they are accordingly entitled to get an order of acquittal. 7. I have gone through the evidence of the victim informant Alam Hussain, PW1. It is deposed in the examination-in-chief that on the date of occurrence, he was picked up by the accused-appellants from Bahari bus stand in a Maruti Van and proceeded towards Chenga and then to Nagaon. When the vehicle was reaching Nagaon, the accused persons took away an amount of Rs. 1250 from his possession per force. They told the informant that he would be taken to Nalbari. He made hue and cry and on hearing his hue and cry people gathered and stopped the said vehicle. The public informed the police and they were taken to Barpeta P.S where the informant PW1 lodged a written FIR. On the next day, they were again taken to Tarabari P.S along with the said vehicle. The police recovered cash amount from the possession of the accused persons but there was shortage of Rs. 100. He also stated that the accused persons kidnapped him for the money. But in his cross-examination he stated that he had some dispute regarding jute business with Abdul Malek, co-accused, who is the son of Kurban Ali Khan. In the cross examination PW1, further stated that he hired the said vehicle for Rs. 100. He also stated that the accused persons kidnapped him for the money. But in his cross-examination he stated that he had some dispute regarding jute business with Abdul Malek, co-accused, who is the son of Kurban Ali Khan. In the cross examination PW1, further stated that he hired the said vehicle for Rs. 200. He studied in the same college with the accused Malik and he had friendship with him for the business. Accused Malek owed an amount of Rs. 7,850 to him. A meeting was held in the village for payment of the same but he did not make any complaint before the police. To a suggestion, he stated that it was not correct that he did not disclose the said fact before the police. He rather strongly claimed that he disclosed it to police. In cross-examination, the informant also stated that at the time, when he was boarding the vehicle, he did not cry for help. He cried for help only when he reached Chenga. 8. PW2, Kandarpa Pathak deposed that he knows the informant Alam Hussain. He is an owner of a tea stall. He has no knowledge about the aforesaid incident except that same Muslim boys had tea in his shop and went away in the vehicle. PW3 Chandu Ali Ahmed does not support the case of kidnapping. In his deposition he stated that some boys in connection with love affairs wanted to drive away the informant Alam Hussain. But again in the cross examination this witness, PW3, stated that he had no knowledge about any love affairs of Mohammed Alam with any girl but he stated that the incident took place in connection with kidnapping of a girl. The evidence of this witness is not at all found reliable. 9. PW4 Abdul Rouf, deposed that he knows Alam Hussain and he saw Alam being taken away in a vehicle with his face covered. However, he does not know why he was taken in such a manner and where he was taken to. PW5, PW6, PW7, PW8 and PW9 have deposed that they have seen the informant Alam Hussain taken in a vehicle and the said vehicle was stopped by the public and later on it was seized by police. 10. From the evidence of PW1, the victim himself has become an admitted position that he owes some money from accused Abdul Malek. PW5, PW6, PW7, PW8 and PW9 have deposed that they have seen the informant Alam Hussain taken in a vehicle and the said vehicle was stopped by the public and later on it was seized by police. 10. From the evidence of PW1, the victim himself has become an admitted position that he owes some money from accused Abdul Malek. They have a business relation and the said amount is due to him in connection with jute business. From the evidence of PW1, its also an admitted position that in connection with the aforesaid dues, there was a village meeting for settlement of the said dispute. The informant, however, did not inform the matter to the police. The dues remained unpaid. All the accused persons and the informant are known to each other and there is no evidence to the effect that the accused-appellants ever threatened to kidnap the informant or teach him a lesson before the incident took place out of some revenge. There is nothing to gather from the evidence of PW1 that the aforesaid accused persons resorted to act of kidnapping out of dispute over payment return of money to informant. 11. The evidence of other P Ws who have hinted forceful kidnapping would loose its evidentiary, once the victim himself, in his evidence, made no allegation of his kidnapping. Whatever evidence of kidnapping has been made by him in his examination-in-chief has been demolished by the defence Counsel in his cross-examination. If the evidence of the victim PW1 is appreciated properly, one would find that his evidence is not consistent and reliable inasmuch as in his examination-in-chief tried to implicate the accused appellants, which he could not stand in the cross-examination and found to be contradicting his own deposition. There is nothing to find that the evidence of the victim PW1 is cogent, reliable and trustworthy on the basis of which the court could come to a conclusion that the charges against the accused-appellants have been established. 12. On the basis of evidence on record, particularly the evidence of PW1, the victim himself, I am not convinced that the prosecution has been able to establish the charge against the accused-appellants beyond reasonable doubt as required under the criminal jurisprudence. 13. 12. On the basis of evidence on record, particularly the evidence of PW1, the victim himself, I am not convinced that the prosecution has been able to establish the charge against the accused-appellants beyond reasonable doubt as required under the criminal jurisprudence. 13. Having found that the charges against the accused-appellants haw not been proved beyond all reasonable doubt, I have no hesitation to set aside the impugned judgment and order dated 26.12.2002. passed by the learned trial court in Sessions Case No. 81/2000 and accordingly I set aside, the same. The appeal stands allowed. 14. The accused-appellants are on bail during pendency of this appeal and as such the bail bonds shall stand discharged. 15. The lower court records may be returned forthwith.