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Gauhati High Court · body

2011 DIGILAW 174 (GAU)

Ajit Prasad Doley v. State of Assam

2011-03-01

C.R.SARMA

body2011
Judgment C.R. Sarma, J. 1. Heard Mr. S.K.N. Mohammed, learned counsel, appearing for the petitioner. Also heard Mr. B.B. Gogoi, learned Addl. Public Prosecutor, appearing for the State-respondent. By this criminal revision, filed under Section 401 read with Section 397, the judgment and order, dated 11.02.2004, passed by the learned Sessions Judge, Dhemaji, in Criminal Appeal No. 30(4) 2002, thereby dismissing the appeal and affirming the conviction and sentence, recorded by the learned trial Judge, in G.R. Case No. 23/2000, has been challenged. 2. The learned SDJM, Jonai, by his judgment and order, dated 02.11.2002, convicted the present petitioners under Sections 147/323 IPC and sentenced each of them to suffer rigorous imprisonment for six months under Section 147 IPC and pay fine of Rs. 1,000/- each, in default, suffer rigorous imprisonment for another period of two months. The learned Magistrate also sentenced the appellants to suffer rigorous imprisonment for six months for their conviction under Section 323 IPC. 3. The prosecution case, that may be necessary for disposal of this revision petition, may, in brief, be stated as follows:-- "On 17.02.2000, the members of a NGO namely 'Morkong Banani' (hereinafter called the 'NGO'), organized an opening ceremony for preservation of forest and for the said purpose, they erected a pandal. While the members of the said NGO were busy in preparation of the ceremony aforesaid, the appellants, along with other villagers, appeared there and damaged the pandal, removed the C.I. sheets and assaulted the members of the NGO. Therefore, Sri Amiya Kr. Kumbang lodged a FIR with the police of Jonai Police Station. Accordingly, police registered a case and after investigation, submitted charge sheet against 14(fourteen) persons, for committing the offences under Sections 147/323/379 IPC and forwarded the accused persons to the Court to stand trial. On their appearance, the learned Magistrate, Jonai, framed charges against the accused persons under Sections 147/323/379 IPC. The charges were explained and read over to the accused persons, to which they pleaded not guilty. They claimed to be tried." 4. In order to prove its case, the prosecution examined as many as 14 (fourteen) witnesses. At the close of prosecution evidence, the accused persons were examined under Section 313 Cr.P.C. They denied the allegations, brought against them and declined to adduce any defence evidence. 5. They claimed to be tried." 4. In order to prove its case, the prosecution examined as many as 14 (fourteen) witnesses. At the close of prosecution evidence, the accused persons were examined under Section 313 Cr.P.C. They denied the allegations, brought against them and declined to adduce any defence evidence. 5. The learned Magistrate, considering the evidence on record, convicted the accused persons, under Sections 147 and 323 IPC and sentenced them as indicated above. Being aggrieved, the convicts, as appellants, preferred an appeal before the learned Sessions Judge, Dhemaji and learned Sessions Judge, by the impugned judgment and order, dated 11.02.2004 aforesaid, while dismissing the appeal, upheld the conviction and sentence, recorded by the learned SDJM, Jonai. Dissatisfied with the said judgment and order, passed by the learned Sessions Judge, the appellants/convicted persons, as petitioners, have come up with this revision petition. 6. Mr. S.K.N. Mahammed, learned counsel, appearing for the petitioners, has submitted that the learned Courts below committed error by recording the conviction and sentences against the petitioners, without sufficient evidence on record. 7. Mr. B.B. Gogoi, learned Addl. Public Prosecutor, supporting the impugned judgment and order, has submitted that, there is sufficient evidence on record to show that the accused persons, forming an unlawful assembly, assaulted the members of the NGO aforesaid and therefore, the Courts below committed no error by convicting and sentencing the petitioners aforesaid. 8. The learned counsel, appearing for file petitioners, has further submitted that, all the petitioners are village cultivators without any previous criminal track records and that they were occupying the forest land, which was forcefully occupied by the members of the NGO aforesaid. It is also submitted, that the said villagers committed no offence except trying to protect their right in respect of the land aforesaid. It is further submitted that, as 11 (eleven) years have already elapsed from the date of occurrence, sending of the petitioners to jail, at this stage, for a short period of only six months, will not serve any fruitful purpose and that the same would cause much prejudice and hardship to the said ordinary villagers, at this stage of their age. 9. 9. Having heard the learned counsel, appearing for both the parties and considering the evidence on record, it is found that the petitioners and other villagers claimed the land, on which the members of the NGO had erected the pandal, to be their land. It also appears that, the petitioners, along with about 150 villagers, went to the place of occurrence to prevent the members of the NGO from holding function in the said land. 10. Sri Probin Kumbang, who deposed as PW.4, was an eye-witness to the occurrence. He stated that, while the members of the NGO, were making arrangement for erecting the pandal, the accused persons went to the place of occurrence and assaulted the members of the NGO. 11. Sri Satyaram Kumbang, who was one of the injured, deposed as PW.5. He stated, that the accused persons, who gathered there, were armed with different types of weapons and that they assaulted the members of the NGO. 12. Sri Pranjit Narah, another injured, deposing as P.W.6, also sated that the accused persons had assaulted the members of the NGO. 13. Sri Harish Pegu (PW.7), who also sustained injuries at the hands of the accused persons, in tune with the evidence of PWs 4, 5 and 6 stated, that the petitioners had assaulted the members of the NGO. Similarly, Sri Rajesh Kumbang, another injured, deposing as P.W.8, supported the evidence given by the above-mentioned witnesses. 14. Sri Jamir Kumbage (P.W.9) and Sri Santaram Kumbang (P.W.10), who sustained injuries in the said occurrence, stated that the accused persons had assaulted them. Sri Dutiram Pegu (P.W.12) and Sri Jyotish Pegu (P.W.13) also supported the evidence of the above-mentioned witnesses. 15. Dr. Kishore Kr. Kaman, who was the Medical Officer, working at Jonai P.H.C., deposed as PW.11. He stated that, he examined Sri Santaram Kumbang, Sri Rajesh Kumbang, Sri Harish Pegu, Sri Pranjit Narah, Sri Satyaram Kumbang and Sri Jamir Kumbang and found injuries on their person. The evidence of the said witnesses, regarding the assault caused by the accused persons remained unchallenged. 16. From the evidence on record, it has been established that the accused persons, forming an unlawful assembly, had assaulted the members of the NGO, more particularly, the above-mentioned injured persons. The evidence of the said witnesses, regarding the assault caused by the accused persons remained unchallenged. 16. From the evidence on record, it has been established that the accused persons, forming an unlawful assembly, had assaulted the members of the NGO, more particularly, the above-mentioned injured persons. Though the accused persons took the plea of private defence with regard to protection of their property, there is nothing on record to show that they were required to cause injuries in exercise of their right of private defence. 17. Considering entire evidence on record, it is found that the prosecution could establish beyond all reasonable doubt that the accused persons committed the offences under Sections 147 and 323 IPC. Therefore, in my considered opinion, the Courts below committed no error by recording the convictions and the sentences against the accused persons, as indicated above. 18. Admittedly, the accused persons were the villagers and cultivators by profession. There are no criminal track record against them. It is also admitted position that the members of the said NGO had made arrangement for erecting a pandal in the forest land. The villagers claimed the said land to be their property. The occurrence took place, on 17.02.2000 and all the accused persons, who are the petitioners in this case, are on bail. Therefore, considering the nature of offences committed by the petitioners and the circumstances leading to commission of the said offences, the status and conduct of the petitioners and also delay i.e. expiry of about 11 (eleven) years from the date of occurrence, coupled with the pains and hardships, suffered by the petitioners during the last eleven years in facing litigation, I am of the considered opinion that, no fruitful purpose would be served by sending the petitioners to jail at this stage of their age, that too only for a period of six months. In my considered opinion, ends of justice would be served, if the petitioners are ordered to pay fine instead of suffering imprisonment for six months. 19. In view of the above discussion, I find it to be a fit case to modify the sentences of imprisonment awarded to the present petitioners. 20. Accordingly, while upholding the convictions recorded by the Courts below, under Sections 147 and 323 IPC against the petitioners, the sentences of imprisonment for 6 (six) months, under Sections 147 and 323 IPC are modified. 20. Accordingly, while upholding the convictions recorded by the Courts below, under Sections 147 and 323 IPC against the petitioners, the sentences of imprisonment for 6 (six) months, under Sections 147 and 323 IPC are modified. Accordingly, each of the petitioners are ordered to pay fine of Rs. 1,000/- (rupees one thousand) only, for their conviction under Section 147 IPC instead of undergoing imprisonment for six years and in default of payment of fine, the petitioners shall suffer rigorous imprisonment for 2(two) months. Similarly, each of the petitioners are sentenced to pay fine of Rs. 1,000/- (rupees one thousand) only for their conviction under Section 323 IPC, in default, to suffer rigorous imprisonment for 2(two) months. However, no interference is made in respect of the fine imposed under Section 147 IPC. With the above modification in respect of the sentence, recorded against the petitioners, this revision petition is partly allowed. Send down the Lower Court Records. Petition Partly Allowed.