Research › Search › Judgment

Gauhati High Court · body

2013 DIGILAW 434 (GAU)

Nanda Hazarika v. Abdul Khalique (MD. )

2013-06-24

C.R.SARMA

body2013
JUDGMENT C.R. Sarma, J. 1. Heard Mr. N. Dhar, learned counsel for the appellant and Ms. A Begum, learned Additional Public Prosecutor for the State. None appears for the private respondents. This appeal is directed against the Judgment and order, dated 31.03.2005, passed by the learned Additional Chief Judicial Magistrate, Karimganj in CR Case No. 815 of 2004, under Sections 448/323/379 IPC. By the impugned Judgment and order the learned Additional CJM has acquitted the accused persons i.e. the private respondents. Aggrieved by the said order of acquittal, the complainant, as appellant, alter obtaining leave, has preferred this appeal. 2. The complainant in her complaint alleged that a proceeding under Section 107 Cr. P.C. was instituted in the Court of learned Additional District Magistrate, Karimganj against the accused persons and thereafter, out of grudge, the accused persons, on the night of 2.12.2003 in between 10 to 11 o'clock at night, being armed with deadly weapons entered the house of the appellant by breaking open the lock of the grill of the house and assaulted her, outraging her modesty. In the said complaint, she has also alleged that the accused persons, by using weapon i.e. dao, had threatened her and her two children and forcefully took away one golden chain, one colour TV set, one CD machine and one VIP suitcase containing other properties. The said complaint, filed on 3.12.2003, before the learned CJM, Karimganj was registered as CR Case No. 1792 of 2003 and forwarded to the police for registering a case. Accordingly, the police registered a case and at the completion of the investigation submitted final report on 31.1.2004 in connection with Badarpur PS Case No. 205 of 2003. Aggrieved by the said final report, the complainant filed a protest petition before the learned CJM and the same was registered as Complaint Case No. 818 of 2004. The learned Addl. CJM after examining the complainant took cognizance of offence under Section 447/323/379/506 IPC and proceeded with the matter. 3. The complainant examined as many as three witnesses in support of her case. At the close of the evidence for the complainant, the accused persons were examined under Section 313 Cr. P.C. They denied the allegations, thought against them, and declined to adduce any defense evidence. 3. The complainant examined as many as three witnesses in support of her case. At the close of the evidence for the complainant, the accused persons were examined under Section 313 Cr. P.C. They denied the allegations, thought against them, and declined to adduce any defense evidence. The learned CJM considering the evidence, on record, came to the findings that there were material contradictions in the evidence of the said three witnesses and as such their evidence was not reliable. The learned Addl. CJM also declined to accept the said evidence of PWs on the ground that all the witnesses were interested witnesses and that there was no supporting evidence from any independent witnesses. 4. The learned trial judge also observed that the articles, alleged to be forcefully taken away by the accused persons, not being recovered from the accused persons, the evidence that the accused persons had forcefully taken away the said articles was not believable. 5. With the above findings the learned Addl. CJM concluded that the complainant foiled to prove the charges, brought under Section 448/379/323 IPC, against the accused persons, beyond all reasonable doubt Accordingly, the learned Addl. CJM, by the impugned judgment and order, acquitted the accused persons and set them at liberty. 6. Aggrieved by the said judgment and order the complainant has come up with this appeal. Mr. N. Dhar, learned counsel appearing for the complainant, referring to the complaint filed by the complainant and the evidence of PWs-1, 2 and 3 has submitted that the said evidence recorded by the leaned Addl. CJM prima facie constitute an offence of dacoity punishable by Section 395 IPC and as such, learned Addl. CJM ought to have committed the case to the Court of Sessions, instead of disposing the same without jurisdiction. 7. In support of his contention the learned counsel appearing for the appellant has referred to the decision held in the case of Venu @ Venugopal Vs. State of Karnataka (2008) 3 SCC 94 . In the above case the Hon'ble Supreme Court has laid down the essential ingredients of Section 392 IPC. 8. Carefully perusing the complaint it is found that the complainant clearly stated that all accused persons, who were seven in number, had entered her house by breaking open the lock of the grill and assaulted her. In the above case the Hon'ble Supreme Court has laid down the essential ingredients of Section 392 IPC. 8. Carefully perusing the complaint it is found that the complainant clearly stated that all accused persons, who were seven in number, had entered her house by breaking open the lock of the grill and assaulted her. She further alleged that the accused persons had threatened her and her two children with dao and forcefully took away her properties i.e. a gold chain, a TV, a CD and a VIP suitcase form her house. Her two children, who deposed as PWs-2 and 3, also supported her said version regarding forceful taking way of the above mentioned items by the accused person. All the said witnesses in their evidence, given as PWs-1, 2 and 3, clearly stated that the accused persons had forcefully removed the above mentioned articles from their house by applying force and that the accused persons had assaulted PW-1 i.e. complainant and threatened the PW-2 and PW-3 by showing a dao, indicating thereby that hurt would be caused to them. Thus, they had threatened to cause hurt in taking away the properties aforesaid. 9. As provided by Section 390 IPC theft becomes robbery if in order to the committing of the theft or in committing the theft or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongfully restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint. 10. From the above mentioned evidence of the PWs-1, 2 and 3 it appears that the accused persons in taking away the complainant's property had caused hurt to her and threatened to cause hurt to her and her children. Therefore, prima facie there existed the ingredients of robbery. As provided by Section 391 IPC when five or more persons conjointly commit or attempt to commit a robbery every persons so committing or attempting to commit a robbery is said to commit dacoity. In the present case, the above-mentioned witnesses stated that all the accused persons, who were seven in number had commit robbery. Therefore mere is prima facie materials to show that the accused persons had committed the offence of dacoity as defined by Section 391 IPC which offence is punishable under Section 395 IPC. In the present case, the above-mentioned witnesses stated that all the accused persons, who were seven in number had commit robbery. Therefore mere is prima facie materials to show that the accused persons had committed the offence of dacoity as defined by Section 391 IPC which offence is punishable under Section 395 IPC. The offence under Section 395 is exclusively triable by the Court of Sessions. Therefore the learned Addl. CJM had no jurisdiction to try the said case. The learned Addl. CJM ought to have committed the case to the Court of Sessions, as per law. 11. In view of the above discussions, I am of the considered opinion that the learned Addl. CJM committed error by disposing the said complaint case, which resulted in acquittal of the accused persons i.e. the present respondents. As the learned Addl. CJM acted without jurisdiction the impugned judgment and order cannot be maintained. 12. Accordingly, the impugned judgment is set aside and the matter is remanded to the Court of learned CJM, Karimganj with the direction that the learned CJM shall commit the case to the Court of learned Sessions Judge for disposal as per law. It is made clear that the learned Sessions Judge shall not be influenced by any observation made by this Court with regard to the merit of the case. Return the LCR.