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2014 DIGILAW 171 (GAU)

KARUNA ROY v. STATE OF ASSAM

2014-02-11

N.CHAUDHURY

body2014
JUDGMENT AND ORDER (CAV) Legality and validity of a conviction of the present petitioner, namely, Sri Karuna Roy, under Section 454 IPC by the learned Chief Judicial Magistrate, Bongaigaon, in G.R. Case No. 67(3) of 1995 and sentencing him to suffer simple imprisonment for 1 year with a fine of Rs. 500/- in default to suffer further simple imprisonment for 2 (two) months which was upheld by the learned Trial Court in Criminal Appeal No. 05 (1) of 2002 vide judgment and order dated 29.09.2003 of the Court of learned Adhoc Additional Sessions Judge, Bongaigaon, has been called in question in this Criminal Revision Petition. The aforesaid G.R. case was initiated on the basis of a charge-sheet submitted by Bongaigaon Police Station in G.R. Case No. 197 of 1994 under Section 454 / 427 IPC against the present petitioner. FIR was lodged by one Uddab Chandra Kalita before the Officer-in-Charge of Bongaigaon Police Station on 10.12.1994 stating that he has a house at Dolaigaon, let out to a tenant which was left under the care of one Dharmeswar Bora inasmuch as he has to remain at Guwahati for his employment and that after his tenant vacated the house on 20.11.1994, accused Karuna Roy forcefully broke the lock of the vacant part of the house on 06.12.1994 and not only took over possession but also threw out some articles of the informant outside the room. The accused in this process took occupation of two rooms. The learned Magistrate framed charge under Section 454 IPC. On perusal of the materials produced before the learned Court under Section 173 Cr.P.C. The accused pleaded not guilty and claimed to be tried whereupon trial was held. Prosecution examined as many as 6 (six) witnesses including the Investigating Officer while defence examined none. The learned Chief Judicial Magistrate, Bongaigaon, found the petitioner guilty of committing offence under Section 454 IPC. By judgment and order dated 10.01.2002, therefore, the petitioner was convicted under the aforesaid section of law and was sentenced to suffer simple imprisonment for 1 (one) year with a fine of Rs. 500/- in default to undergo further simple imprisonment of two months. 2. Aggrieved, the petitioner approached the learned Sessions Judge, Bongaigaon, vide Criminal Appeal No. 5(1) of 2002. 500/- in default to undergo further simple imprisonment of two months. 2. Aggrieved, the petitioner approached the learned Sessions Judge, Bongaigaon, vide Criminal Appeal No. 5(1) of 2002. The appeal was transferred to the Court of learned Adhoc Additional Sessions Judge, Bongaigaon, who vide judgment and order dated 29.09.2003 dismissed the appeal and upheld the conviction and sentences imposed by the learned Chief Judicial Magistrate. As against the said judgment the present Revision Petition has been preferred by the accused petitioner. 3. I have heard Mr. M. U. Mahmud, learned counsel for the petitioner and Mr. B.B. Gogoi, learned Additional Public Prosecutor, Assam. 4. I have gone through the lower courts records including the deposition of witnesses. 5. The prosecution examined Dharmeswar Bora as P.W.1 who was authorized by the informant to look after the premises inasmuch as informant Uddab Ch. Kalita being an employee of the department of Forest was staying at Guwahati which was his place of posting. He stated that there was a tenant in the house of Uddab Ch. Kalita of which he was the care taker and the tenant left on 20.11.1994. Thereafter, the house was kept under lock and key but on 06.12.1994, the accused broke the lock and entered into the vacant part of the house and took possession of 2 (two) rooms forcefully. He informed Uddab Ch. Kalita, whereupon on 10.12.1994 an ejahar was lodged with the Officer-in-Charge of Bongaigaon Police Station leading to registration of Bongaigaon Police Station Case No. 197 of 1994 under Sections 454/ 427 IPC. T.S.I. Mohendra Rajkhowa held an investigation and thereafter submitted charge sheet. 6. P.W.2 is Uddab Chandra Kalita and he supported his ejahar as well as the statement of P.W.1 (Dharmeswar Bora) in regard to the aforesaid occupancy of his premises by the accused petitioner. P.Ws 3, 4 & 5 are also witnesses from the locality where as P.W.6, namely, T.S.I. Mohendra Rajkhowa, was the Investigating Officer. He produced the seizure list, an ejahar, a registered sale deed as Exhibit- 1 & Exhibit- 2 and material Exhibit-1 respectively. After completion of evidence, the learned Magistrate put questions to the accused under Section 313 Cr.P.C. He replied to the questions and declined to adduce any evidence in support of his defence. The learned Trial Magistrate found that the P.W.1 being neighbour was aware that the accused encroached into the property purchased by the informant. After completion of evidence, the learned Magistrate put questions to the accused under Section 313 Cr.P.C. He replied to the questions and declined to adduce any evidence in support of his defence. The learned Trial Magistrate found that the P.W.1 being neighbour was aware that the accused encroached into the property purchased by the informant. The sale deed of the land was exhibited to show that the property was sold by none other than the father of the accused to the informant. But even thereafter the accused entered into the said house by breaking the lock. May be the accused had the grievance in regard to execution of the sale deed but in that event he has his remedy elsewhere. He could not have taken law into his hand and force his entry into the house which purportedly was owned by his father. The learned Magistrate also found that the case of P.W.2 (informant) was fully supported by P.Ws. 1, 3, 4 & 5 who are the neighbours of the informant and the accused. In course of cross-examination the said witnesses could not be taken into consideration so as to have any doubt as to the veracity of the statements made by the P.Ws. 1 & 2 who deposed that after entering into the said house the accused caused mischief by throwing away the articles which were kept into their house. It is on these evidences the learned Court came to a finding that the accused was guilty of committing mischief. 7. Mr. Mahmud initially argued that the aforesaid findings of the learned Courts below are not based on the material available on records. He also argued that no article belonging to the informant which are said to have been thrown away by the accused was not recovered and seized and in the absence of seizure of such material the finding of the learned Courts that the accused had committed mischief by throwing away some articles is not made out. However, Mr. Mahmud fairly admitted that there was no proper cross-examination of the witnesses of the prosecution to show that the accused has bonafide claim of right over the land and house in question although, it is really a case where ownership and possession of the informant is in doubt. However, Mr. Mahmud fairly admitted that there was no proper cross-examination of the witnesses of the prosecution to show that the accused has bonafide claim of right over the land and house in question although, it is really a case where ownership and possession of the informant is in doubt. Whatever may be the case of the accused but since he declined to lead any evidence in his support and did not lay foundation which cross examining the PWs so as to raise a doubt as to the guilt committed by him, this Court sitting in revision cannot interfere with the findings of the learned two Courts below. It is settled law that the power of the revisional Court under such circumstances is limited and circumscribed. Only if a case of glaring illegality and/or perversity of findings is made out, a revisional court can step in. Mr. Mahmud, learned counsel for the petitioner, could not show that findings of the learned Courts below are not based on the materials available on records. So, there is no scope for interfering with the findings of the learned Courts below in regard to conviction and/ or sentence. 8. At this stage Mr. Mahmud submits that the petitioner is a Government employee and he has semblance of rights over the property in question. Under such circumstances, once he is to suffer imprisonment he will lose his job. According to Mr. Mahmud, there is no antecedent of any criminal prosecution and/ or conviction of the petitioner. Moreover, he is the sole earning member of his family consisting of minor children and wife. In that view of the matter, it was incumbent on the part of the learned Courts below to see as to whether the case of the petitioner could have been considered in the light of probation of Offenders Act and/ or Section 360 of the Cr.P.C. 9. I have considered the submission of Mr. Mahmud in this regard. There is no material on records to indicate that the petitioner has any previous conviction. In the absence of such evidence accused petitioner can be traded as first offender. Although the witnesses said that the petitioner broke open the lock and forced his entry into the room and threw away the materials from inside but the prosecution failed to produce any such material. In the absence of such evidence accused petitioner can be traded as first offender. Although the witnesses said that the petitioner broke open the lock and forced his entry into the room and threw away the materials from inside but the prosecution failed to produce any such material. Admittedly father of the present petitioner was original owner of the land and house, in respect to which he has been held guilty of committing mischief under Section 454 IPC. In that view of the matter and in absence of any specific materials to the effect that he is a habitual offender of law, there is scope to consider the case of the petitioner for probation of offence. It is stated that he is a sole bread earner of the family and in case of his imprisonment he will lose his job resulting in destruction of his family. 10. Considering the nature and character of the offence said to have been committed by the petitioner and considering the human aspect of the matter and while confirming conviction of the petitioner, I feel inclined to pass order so as to release the accused on probation on his entering into a bond of Rs. 10,000/- (Rupees Ten Thousand) within a period of 3 (three) months from today before the learned Chief Judicial Magistrate, Bongaigaon, for keeping peace and good behavior for one year. 11. The Criminal Revision Petition is dismissed. 12. The petitioner shall surrender before the learned Chief Judicial Magistrate, Bongaigaon, forthwith.