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2013 DIGILAW 31 (GAU)

Manik Miah v. State of Tripura

2013-01-11

SWAPAN CHANDRA DAS

body2013
JUDGMENT Swapan Chandra Das, J. 1. The appellant, Manik Miah, named above, has been found guilty of committing offence punishable under Section 458 of IPC, by the learned Additional Sessions Judge (Fast Track Court), North Tripura, Kailashahar in ST 16(NT/K) of 2003 and sentenced him to suffer R.I. for 6(six) months and to pay a fine of Rs. 1000/- (Rupees one thousand) in default of payment of fine to suffer further R.I. for 2(two) months. Learned Additional Sessions Judge also directed the appellant to pay a compensation of Rs. 25,000/- (Rupees twenty five thousand) to the victims invoking the jurisdiction under Section 357(3) of CrPC. Being aggrieved and dissatisfied, the appellant preferred the appeal and prayed for setting aside the judgment and order of conviction and sentence. 2. Heard learned counsel, Mr. Arijit Bhowmik for the appellant and learned Addl. P.P., Mr. P. Bhattacharjee for the respondent. 3. Fact of the case may be summarised thus:- 3.1 On the intervening night of 14.1.2002 and 15.01.2002, Ashid Ali @ Ashique Ali (P.W.2) along with his wife, Aminur Necha (P.W. 4), their son Nurul Islam (P.W. 14) and daughter Rajina Begam (P.W.15) were sleeping in their residential hut and at that time miscreants broken open the door, trespassed in the hut armed with sharp cutting weapons and fire arms in hand and started physical assault on P.W.2 causing injury. When P.Ws 4 and 14 went to rescue P.W.2, they were also assaulted and one of the miscreants fired from a gun to which P.W. 14 received pellet injury in his abdomen. On the hue and cry raised by the inmates of the house, neighbored rushed there and the injured P.Ws 2, 4 and 14 were taken to RGM Hospital, Kailashahar. 3.2 On the following day, i.e. on 15.1.2002 at about 8-35 a.m., P.W.1 Rashid Ali, a brother of P.W.2, residing in the neighbourhood, lodged an FIR in writing addressed to O.C., Kailashahar P.S. narrating the occurrence that a group of dacoits numbering 6/7 armed with sharp weapons trespassed in the house of his brother Ashid Ali after pushing open the door of the hut and assaulted them with sharp weapon causing injury and also injured Nurul Islam with gunshots. In the FIR he has mentioned that the leader of said group of dacoits was one Munib Ali, S/o Akbar Ali of village Yubrajnagar. In the FIR he has mentioned that the leader of said group of dacoits was one Munib Ali, S/o Akbar Ali of village Yubrajnagar. 3.3 O.C. of Kailashahar P.S. accordingly registered KLS P.S. Case No. 07/2002 under Sections 398/326 of IPC and Section 27 of the Arms Act and S.I. Swapan Chandra Das was entrusted with the charge of investigation who on completion of investigation, submitted charge sheet against accused Munib Ali (named in the FIR), Manik Miah, Ajijur Rahaman and Maharam Ali for commission offence punishable under Sections 398 and 326 IPC. Accused Munib Ali was charge-sheeted showing absconder. 3.4. Cognizance was taken on the basis of police report and in due course, on commitment of the case to the Court of Sessions, learned Additional Sessions Judge on 28.03.2003 framed charges against accused Manik Miah, Ajijur Rahaman and Maharam Ali for commission of offence punishable under Section 398 of IPC, Section 25(1)(a) and 27 of the Arms Act. The accused persons pleaded not guilty to the charge. Charges so framed against the accused persons reads as follows:- I, Shri M.C. Roy, Sessions Judge, North Tripura, Kailashahar, do hereby charge you, namely, 1. Md. Manik Miah 2. Md. Ajijur Rahaman 3. Md. Maharam Ali, as follows:- Firstly. that, you along with absconder Md. Munib Ali and unknown 3/4 others at about 0200 hours at village Yeazikhawra under P.S. Kailashahar on 15.1.2002, while attempting to commit robbery or dacoity in the house of one Md. Asid Ali, used deadly weapons, to wit. Dao, Kirich and Gun etc. and caused grievous hurt to said Md. Asid Ali, his wife Musstt. Amirunnessa and his son Md. Nurul Islam and thereby committed an offence punishable under Section 398 of I.P.C. and within my cognizance. Secondly, that you on the same time, date and place as referred in first charge, while committing the aforesaid offences carried dao, kirich and Gun etc. and used the same for unlawful purpose in contravention of the Section 3 of the Indian Arms Act and thereby committed an offence punishable under Section 25(1)(A) and Section 27 of the said Act and within my cognizance. And I hereby direct that you be tried on the said charges by this Court. and used the same for unlawful purpose in contravention of the Section 3 of the Indian Arms Act and thereby committed an offence punishable under Section 25(1)(A) and Section 27 of the said Act and within my cognizance. And I hereby direct that you be tried on the said charges by this Court. 3.5 To prove the charge, prosecution examined 18 witnesses namely; P.W.1 Rashid Ali, P.W.2 Asique Ali, P.W.3 Sobha Miah, P.W.4 Amirunnesa Begam, P.W.5 Farid Uddin, P.W.6 Akram Ali, P.W.7 Ilias Ali, P.W.8 Md. Noor Uddin, P.W.9 Md. Gyiash Uddin, P.W.10 Md. Amir Ali, P.W.11 Md. Hossain Ali, P.W.12 Nurul Haque, P.W.13 Md. Abruj Ali, P.W. 14 Narul Islam, P.W.15 Rojina Begam, P.W.16 Lachu Miah, P.W.17 Swapan Ch. Das, P.W.18 Dr. Gitesh Bhattacharjee. 3.6 Out of the aforesaid witnesses, P.Ws 2, 4 and 14 are the injured victims of the occurrence and P.Ws 3 and 15, according to prosecution are eye witnesses of occurrence. P.Ws 1, 5, 6, 7, 8, 9, 10, 11, 12, 13 and 16 are all residents of the neighbourhood and they came to learn about the occurrence, as alleged from the injured victims. P.W. 17 is the I.O. of the case and P.W. 18 is the Medical Officer who has examined P.Ws 2, 4 and 14 in the hospital. 3.7 After the closure of the prosecution evidence, accused Manik Miah and Ajijur Rahaman were examined under Section 313, Cr.P.C. and in their turn, they examined two defence witnesses namely D.W.1 Mainul Hak and D.W.2 Kabutari Bibi. 3.8 At the conclusion of trial, learned Additional Sessions Judge (Fast track Court) found the accused Manik Mian guilty of committing offence punishable under Section 458 of IPC and sentenced him as aforesaid. Accused Ajijur Rahaman was found not quality and has been acquitted. It is submitted that accused Maharam Ali had absconded at the time of trial. 4. It is submitted by learned counsel, Mr. Bhowmik that the FIR was lodged 15.1.2002 at 8:35 hours but in the FIR, the name of the present accused appellant is conspicuously absent which suggests that the victims of the alleged occurrence could not identify the accused appellant and subsequently named him falsely since he is the brother of the FIR named accused Munib Ali, who has been absconding since long and alleged to have living in Bangladesh. He has also submitted that a clear story has come out in the statement of P.Ws 3, 10, 11, 12 and D.Ws 1 and 2 that accused Munib Ali along with some Bangladeshi miscreants might have committed the offence and subsequently Manik Miah and other accused persons have been falsely involved in the case. The next argument advanced by learned counsel, Mr. Bhowmik is that charges were framed against the accused persons for commission of offence punishable under Section 398 of IPC Section 25(1)(a) and 27 of the Arms Act but the accused has been found guilty of committing offence punishable under Section 458 of IPC which cannot be termed as a minor offence of Section 398 of IPC and hence, the finding of conviction and sentence cannot stand in the eye of law. In support of his contention, he has referred the case law of this Court reported in 2012 (5) GLT 58 : (2012) 6 GLR 138 in the case of Pulin Behari Roy Vs. State of Tripura. It is further submitted by learned counsel, Mr. Bhowmik referring to Section 357 of Cr.P.C. that where the Court has imposed a fine, it can not impose a compensation which is barred by law and therefore, liable to be interfered. He next argued that the accused appellant Manik Miah and accused Ajijur Rahaman stands on same footing whereas Ajijur Rahaman has been acquitted by the trial Court but Manik Miah has been convicted. The finding is based on surmise and conjectures and therefore, liable to be interfered and set aside in appeal. The last submission made by learned counsel, Mr. Bhowmik is that the inmates of the house stated nothing as to how they could identify the accused persons in the darkness of the night and so, the subsequent disclosure of the name of accused appellant and others is afterthought and is shrouded with suspicion which cannot be believed. 5. Learned Additional P.P., Mr. P. Bhattacharjee, on the contrary, has submitted that there is no defence case made out in the cross examination of P.Ws 2, 4, 14 and 15 to disbelieve them. 5. Learned Additional P.P., Mr. P. Bhattacharjee, on the contrary, has submitted that there is no defence case made out in the cross examination of P.Ws 2, 4, 14 and 15 to disbelieve them. They are the inmates of the house when the incident had occurred and it is amply proved that P.Ws 2, 4 and 14 were physically assaulted causing injury after trespassing in their house during mid night and their oral evidence has been corroborated by the evidence of doctor i.e. P.W. 18, Non mention of the name of the accused appellant in the FIR can in no way throw doubt on the backbone of the prosecution case and therefore, the judgment and order of conviction and sentence shall sustain. He has also submitted that the offence punishable under Section 458 IPC is a minor offence to that of the charges framed against the accused appellant and others and so punishment on that count cannot be said to be illegal. He, further argued that where the fine was imposed on the accused persons simultaneous imposition of compensation to be paid by the accused was not permissible as prescribed under Section 357 of Cr.P.C. 6. On going through the deposition of prosecution witnesses as well as the defence witnesses, it is evident that an incident occurred at about 2-00 a.m. in the house of Ashid Ali (P.W2) on the intervening night of 14.01.2002 and 15.01.2002 and P.Ws 2, 4, and 14 sustained multiple injuries due to assault by the miscreants. Evidence of P.W. 18, Dr. Gitesh Bhattacharjee makes it clear that P.Ws 2, 4 and 14 were admitted in RGM Hospital, Kailashahar on 15.01.2002 with multiple injuries and P.W. 14 was having with gunshot injuries and numbers of pellets were operated out from his abdomen. It is amply established that P.Ws 2, 4, 14 and 15 were in their house at the time of occurrence when the miscreants broken open the door of the hut and assaulted P.Ws 2, 4 and 14 causing injuries. 7. P.Ws 2, 4, 14 and 15 made almost similar statement that they were sleeping in their hut and at about 2 a.m. of the night, 6/7 persons forcefully broken open the door, entered in the house, armed with sharp cutting weapon and country made gun and assaulted P.Ws 2, 4 and 14 causing injury. 7. P.Ws 2, 4, 14 and 15 made almost similar statement that they were sleeping in their hut and at about 2 a.m. of the night, 6/7 persons forcefully broken open the door, entered in the house, armed with sharp cutting weapon and country made gun and assaulted P.Ws 2, 4 and 14 causing injury. P.W. 14 stated that Munib Ali fired from a gun causing pellet injury in his abdominal area and he fled away and took shelter in the house of Amir Ali, wherefrom he was taken to hospital. P.W.3 is also an eye witness according to the prosecution. He has stated that on the night of occurrence, he was sleeping in the house of P.W.2 and he woke up hearing the alarm and entered in the room of Ashid Ali (P.W.2) and found some other persons in the light of a lamp and they immediately grasped him and tied him with a rope in the nearby room. He could identify one of the accused namely Munib Ali (absconder). In cross, he stated that he knew Manik Miah and Maharam Ali since long from his childhood and he did not see them in the house at the time of occurrence. He has also stated that Munib Ali was accompanied with two other persons. P.Ws 10, 11 and 12 brought on record completely a different story. P.W. 10 stated that Manib Ali and some Bangladeshi miscreants committed the dacoity in the house of Ashid Ali and assaulted them. He was, however, declared hostile by the prosecution, so we may not rely on him. P.W. 11 made a clear statement that he shifted the injured wife of Ashid Ali (P.W. 4) to RGM Hospital on that night and on query, he learned that Bangladeshi Dacoits attacked them and caused the injuries. P.W. 12 Nurul Haque also stated that on query, the victim Narul(P.W. 14) told him that he could recognize only Munib Ali and that he could not recognize the other miscreants as they were Bangladeshi dacoits. 8. D.W. 1, as I find, is a charge sheet listed witness of the prosecution case but he has not been examined by prosecution. In the evidence of P.W. 14, I find that after the incident he rushed to the house of Amir Ali. 8. D.W. 1, as I find, is a charge sheet listed witness of the prosecution case but he has not been examined by prosecution. In the evidence of P.W. 14, I find that after the incident he rushed to the house of Amir Ali. D.W.1 is the son of Amir Ali and he (DW1) clearly stated that Nurul Islam (P.W. 14) after the occurrence rushed to his house and hearing the cries of Nurul Islam, he came out and found Nurul Islam with injuries in his abdominal area with profuse bleeding and on his query, Nurul told him that Abdul Munim with some miscreants of Bangladesh attacked them and caused the injuries. D.W.2 is the sister of P.W.2 Ashid Ali and she stated that she was also in the house of her brother at the time of occurrence and that the accused persons could not be identified by her. 9. It is an undisputed fact that the houses of the informant and victims are at village Yeazikhawra and the houses of accused persons are at village Yubarajnagar and both the villages are adjacent to each other and the witnesses including the victims as well as the accused persons are closely known to each other. Had it been so, that accused Manik Miah was with the gang of the miscreants and taken part in the incident, his name would have been disclosed by P.Ws 2, 3, 4, 14 and 15, immediately after the occurrence and his name would have found place in the FIR. It raises a great suspicion about the authenticity of the prosecution case in respect of involvement of accused appellant In the prosecution case itself, two stories have come on the surface--(i) that Munib Ali alias Munim Ali accompanied with accused Manik Miah, Ajijur Rahaman and Maharm Ali committed the offence and (ii) Munim Ali alias Munib Ali along with Bangladeshi miscreants committed the offence. The evidence of P.Ws. 3, 10, 11, 12 and D.Ws makes out a reasonable suspicion about the authenticity of the prosecution case in respect of involvement of accused Manik Miah in the offence. There is no story surfaced that after the occurrence the inmates of the house were not in a position to speak. The evidence of P.Ws. 3, 10, 11, 12 and D.Ws makes out a reasonable suspicion about the authenticity of the prosecution case in respect of involvement of accused Manik Miah in the offence. There is no story surfaced that after the occurrence the inmates of the house were not in a position to speak. Particularly we find that P.Ws 3 and 15 according to prosecution case, were in the house and they would say the names of the miscreants, had they could identify the accused Manik Miah, the appellant, at the time of occurrence. Under such circumstances of the case, it is of great doubt as to whether Manik Miah had accompanied with Munib Ali or not, at the time of occurrence as alleged. Learned Additional Sessions Judge, as I find, distinguished the case of Manik Miah with the case of Ajijur Rahaman stating that the name of Ajijur Rahaman was not stated by P.W.2 to other witnesses whereas, we find that the name of Ajijur Rahaman was also made by P.W.2 to the other witnesses who enquired about the occurrence. So, Manik Miah and Ajijur Rahaman were similarly situated in the factual matrix of the prosecution case. While Ajijur Rahaman was acquitted, the trial Court held Manik Miah guilty based on the same bundle of facts and evidence on record. In the facts and circumstances of the case, where two stories surfaced, in the prosecution evidence, one supporting the prosecution case and the other raising suspicion about the prosecution story, benefit will definitely go to favour the accused appellant. 10. Admittedly, the appellant along with two others were charged for commission of offence punishable under Section 398 of IPC and Section 25(1)(A) and Section 27 of the Arms Act Learned Additional Sessions Judge acquitted the accused appellant from both the charges framed under IPC and the Arms Act holding that prosecution has failed to prove the charges levelled against the accused-appellant. He has, however, come to the conclusion that the accused-appellant committed an offence punishable under Section 458 of IPC. Now, let us see whether 458 is a minor offence of Section 398 IPC in the sense that the ingredients of Section 458 is included in the ingredients of Section 398 of IPC. Chapter XII in Sections 378 to 462 deals with the "Offences Against Property" which includes theft, extortion, robbery and dacoity, criminal trespass etc. Now, let us see whether 458 is a minor offence of Section 398 IPC in the sense that the ingredients of Section 458 is included in the ingredients of Section 398 of IPC. Chapter XII in Sections 378 to 462 deals with the "Offences Against Property" which includes theft, extortion, robbery and dacoity, criminal trespass etc. Section 398 prescribes punishment for attempt to commit robbery or dacoity armed with deadly weapons. The word 'robbery' is defined in Section 390 and 'dacoity' is defined in Section 391 of the IPC. In all cases of robbery, there is either theft or extortion as defined in Sections 378 and 383 respectively. Dacoity is the aggravated form of robbery and for commission of dacoity, all ingredients of robbery in addition is required to be proved. So, to prove a charge under Section 398 of IPC, the ingredients of either theft or extortion is required to be proved. On the other hand, for commission of offence punishable under Section 458 of IPC, the ingredients of larking house trespass or house breaking by night as defined in Sections 344 to 346, is required to be proved. In every case of larking house trespass or house breaking by night, the ingredients of criminal trespass or house trespass as defined in Sections 441 and 442 is required to be proved. Therefore, the offence punishable under Section 398 and Section 458 of IPC stands distinctly on different ingredients that is to say, that the ingredients of the offence punishable under Section 458, is not included in the ingredients of offence punishable under Section 398 of IPC. Section 222 of Cr.PC prescribes the law when an offence proved included in offence charged, which reads thus:- (1) When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and such combination is proved, but the remaining particulars are not proved, he may be convicted of the minor offence, though he was not charged with it. (2) When a person is charged with an offence and facts are proved which reduced it to a minor offence, he may be convicted of the minor offence, although he is not charged with it. (3) When a person is charged with an offence, he may be convicted of an attempt to commit such offence although the attempt is not separately charged. (3) When a person is charged with an offence, he may be convicted of an attempt to commit such offence although the attempt is not separately charged. (4) Nothing in this section shall be deemed to authorize a conviction of any minor offence where the conditions requisite for the initiation of proceedings in respect of that minor offence have not been satisfied. Illustrations (a) A is charged under Section 407 of the Indian Penal Code (45 of 1860) with criminal breach of trust in respect of property entrusted to him as a carrier. It appears that he did commit criminal breach of trust under Section 406 of that Code in respect of the property, but that it was not entrusted to him as a carrier. He may be convicted of criminal breach of trust under Section 406. (b) A is charged, under Section 325 of the Indian Penal Code (45 of 1860), with causing grievous hurt. He proves that he acted on grave and sudden provocation. He may be convicted under Section 335 of the Code. The Supreme Court in the case of Shamnashed M. Multtani Vs. State of Karnataka reported in (2001) 2 SCC 577 has held that- Although the expression "minor offence" is not defined in the Code it can be discerned from the context that the test of minor offence is not merely that the prescribed punishment is less than the major offence. Only if the two offences are cognate offences, wherein the main ingredients are common, the one punishable among them with a lesser sentence can be regarded as minor offence vis-a-vis the other offence. In the present case, the accused was charged for the offence under Section 398 of IPC and Sections 25 and 27 of the Arms Act. He has been acquitted from the charges. The trial Judge before judgment at any stage would alter the charges but did not do so. Section 458 of IPC can in no way be said to be a cognate offence, of the offence prescribed under Section 398 of IPC. Therefore, the conviction under Section 458 without framing a charge was not justified and on that ground also the conviction and sentence is liable to be set aside. 11. Section 458 of IPC can in no way be said to be a cognate offence, of the offence prescribed under Section 398 of IPC. Therefore, the conviction under Section 458 without framing a charge was not justified and on that ground also the conviction and sentence is liable to be set aside. 11. The next point to be decided, whether the order passed by the learned trial Judge imposing compensation to be paid by the appellant was appropriate or not in view of the fact that he has imposed a sentence of fine of Rs. 1000/- for offence punishable under Section 458 of IPC in addition to substantive sentence of imprisonment Section 357 of IPC prescribes provision empowering the Court to pass order for payment of compensation. In the event an accused is found guilty of the charge framed against him. Sub-section (1) of Section 357 prescribes that when Court imposes a sentence of fine, the fine money may be distributed to defray the expenses incurred by the prosecution or it may be directed to be paid as compensation to the person who suffered the loss or injury because of the commission of the offence etc. Sub Section (3) prescribes that when the Court imposes a sentence of which fine does not form a part, the Court may order the accused person to pay by way of compensation, such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced. The provision therefore clearly contemplates that when a sentence of fine is imposed, the Court may direct the fine money to be paid to the persons who suffered the loss or injury. Once fine is imposed as a part of sentence, the Court cannot apply the provision of sub Section (3) and further direct the convict to pay compensation to the victim of the crime. In the present case the accused while sentenced to pay a fine of Rs. 1000/-, the learned Additional Sessions Judge would not direct him to pay further compensation under sub Section (3) of Section 357 of Cr.PC to that extent the order is illegal and cannot stand in the eye of law. 12. In view of the discussions made above, the appeal is allowed. 1000/-, the learned Additional Sessions Judge would not direct him to pay further compensation under sub Section (3) of Section 357 of Cr.PC to that extent the order is illegal and cannot stand in the eye of law. 12. In view of the discussions made above, the appeal is allowed. The judgment and order of conviction and sentence passed by learned Additional Sessions Judge (Fast Track Court), Kailashahar in case No. ST 16 (NT/K) of 2003, against accused appellant Manik Miah, is set aside and quashed. He be set at liberty at once. His surety also stands disposed. 13. The appeal accordingly stands discharged of. Send back the L.C. record alongwith a copy of this judgment.