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2015 DIGILAW 117 (GAU)

DIPAK RAVA v. STATE OF ASSAM

2015-02-04

B.K.SHARMA

body2015
ORDER (ORAL) 1. Heard Mr. U.K. Barman, learned counsel for the appellant and Mr. D. Das, learned Additional Public Prosecutor, Assam. 2. This appeal is directed against the judgment of conviction dated 01.04.2006 of the learned Sessions Judge, Kamrup in Sessions Case No.27(K)/2004. By the said judgment, the accused/appellant has been convicted u/s 392 IPC with the sentence of rigorous imprisonment for 02(two) years and also to pay a fine of Rs.3000/- (Rupees three thousand) and in default, to undergo further rigorous imprisonment for 06(six) months. 3. The prosecution story in brief is that one Kandarpa Ram Kalita (PW-1) lodged an FIR on 06.08.1999 stating therein that in the morning, his vehicle, a Maruti Van bearing registration No.AS-01D-6946 was hired by four youths near Nak Kata Pukhuri, Guwahati. They said to be passengers for Hajo. When the vehicle reached Kedar Mandir at about 3.30 P.M., the youths assaulted him, who was the driver of the vehicle and removed him from the vehicle. Thereafter, the youths fled away along with the vehicle. In the FIR, the informant stated that he would identify the assailants, if they were apprehend by police. 4. Pursuant to the aforesaid FIR, a GD entry was made bearing No.141 dated 06.08.1999 and thereafter Hajo P.S Case No.134/1999 was registered u/s 395/397 IPC. On conclusion of the investigation, charge sheet was submitted under the said two sections against all the accused persons, namely, Dipankar Das; Dipak Rava i.e. the present appellant; Rani Thakuria; Dijen Das and Ranjit Das. The accused persons having pleaded not guilty and claimed to be tried, trial started. 5. During trial, prosecution examined 07(seven) witnesses and the statements of the accused persons were also recorded u/s 313 Cr.P.C, wherein they denied the charges. The learned trial Court vide the impugned judgment of conviction, while acquitting the other accused persons due to insufficiency of evidence, however, has convicted the accused/appellant primarily on the ground that the Maruti Van was recovered from his possession. 6. PW-1 is the informant, who in his evidence narrated the incident of hiring the vehicle and also as to how he was thrown out of the vehicle by the youths and thereafter fled away along with the vehicle. Out of the five youths, he identified accused Dipankar Das and Dipak Rava i.e. the present appellant in the Dock. 6. PW-1 is the informant, who in his evidence narrated the incident of hiring the vehicle and also as to how he was thrown out of the vehicle by the youths and thereafter fled away along with the vehicle. Out of the five youths, he identified accused Dipankar Das and Dipak Rava i.e. the present appellant in the Dock. It is in the evidence that the arrested persons along with the vehicle were taken into Hajo police station, where PW-1 was also present. Eventually, he lodged the FIR, Ext.1. During trial, police seized the necessary documents pertaining to the vehicle Ext.2. TIP was held, where the PW-1 identified 03 (three) arrested accused, out of whom, 02(two) were present in the Court, namely Dipankar Das and Dipak Rava. In the cross examination, this witness stated that accused Dipankar Das was armed with a pistol and police recovered the same from his possession. 7. PW-2, PW-3 and PW-4 proved the seizure list, Ext.3, by which the vehicle was seized. 8. PW-5 is the doctor, who had examined PW-1 on 06.08.1999 and found the following injuries on his body:- “i) Tenderness over the right chest wall ii) Tenderness over the abdominal wall caused by blunt object.” 9. PW-6 is the Investigating Officer, who in his deposition stated that on 06.08.1999, he was the Officer-in-Charge of Hajo Police Station. On receipt of the FIR lodged by PW-1, he registered the case and visited the place of occurrence, prepared sketch map and topography. During examination, he arrested three persons, namely, Dipak Rava (Appellant), Dijen Das and Dipankar Das and one revolver was also recovered from Dipankar Das. Consequently, a separate case was registered against him u/s 25 of the Arms Act. In the cross examination, he stated that on the same day of occurrence, at around 5 O’clock, he arrested the accused persons and they were kept in the police lock up. PW-1 i.e. the first informant was also examined by him at the police station. 10. PW-7 is the Magistrate who held the TIP. According to him, on 24.08.1999, he was working as Judicial Magistrate, 1st Class, Hajo. On that day, he held TIP in connection with the aforesaid Hajo P.S case No.134/1999. The TIP was held inside the District Jail, Guwahati (Ext.8). 10. PW-7 is the Magistrate who held the TIP. According to him, on 24.08.1999, he was working as Judicial Magistrate, 1st Class, Hajo. On that day, he held TIP in connection with the aforesaid Hajo P.S case No.134/1999. The TIP was held inside the District Jail, Guwahati (Ext.8). In the cross examination, this witness admitted that the accused Dipankar Das was arrested on 07.08.1999 and the TIP was held on 24.08.1999. 11. Considering the aforesaid evidence, the learned trial Court did not find any evidence against the accused Rani Thakuria, Dijen Das and Ranjit Das and accordingly they were acquitted. As regards the accused Dipankar Das, it is in the evidence that he was arrested on 07.08.1999 and the TIP was held on 24.08.1999. The informant had the occasion to see him before the TIP was held. That apart, the occurrence took place on 06.08.1999 and immediately after the occurrence, Dipankar and others were arrested by police and they were kept in the police station, where the informant was also present. So it was quiet natural on the part of the informant to identify the accused Dipankar Das during TIP and also during trial. 12. Appreciating this position, the learned Trial Court has also acquitted Dipankar Das. However, same test was not applied in the case of the accused/appellant. He has been convicted solely on the basis of the Ext.3 seizure list, by which the vehicle was recovered. Ext.3 speaks of seizure of the vehicle from the possession of Dipak Rava i.e. the present appellant. Abdul Malik, Azahar Ali and Abdur Rasid are the seizure witnesses, who are PW-2, PW-3 and PW-4. PW-2 in his deposition while stating about his signature appearing in Ext.3, also stated that he could come to know later on about seizure of the vehicle. He was categorical in his cross examination that he was not aware as to from whose possession the vehicle was seized by the police. PW-3 in his deposition stated that his signature was obtained by the police in white paper. PW-4 also stated in the same manner that his signature was obtained in white paper. PW-6 who is the Investigating Officer, stated in his deposition that the vehicle was seized, but did not state as to from whose possession it was seized. 13. PW-3 in his deposition stated that his signature was obtained by the police in white paper. PW-4 also stated in the same manner that his signature was obtained in white paper. PW-6 who is the Investigating Officer, stated in his deposition that the vehicle was seized, but did not state as to from whose possession it was seized. 13. If the PW-1 was assaulted by the accused persons including Dipankar and thereafter the vehicle was taken away and they were not known to Pw-1, the only course open was to identify them by the PW-1 through TIP. But it is in the evidence that the informant had the occasion to see them in the police station. In the cross examination of PW-6, he categorically stated that the accused persons were kept in the police lockup and the informant i.e. PW-1 was also examined in the police station. 14. Above being the position and analogy on which the other accused Dipankar Das has been acquitted, I am of the considered opinion that the present accused/appellant is also entitled to benefit of doubt. 15. Accordingly, this appeal is allowed by setting aside the impugned judgment of conviction dated 01.04.2006 of the learned Sessions Judge, Kamrup passed in Sessions Case No.27(K)/2004. The accused/appellant is already on bail vide order dated 10.05.2006 passed in Criminal Misc Case No.166/2006. Bail bond shall stand discharged. 16. Registry shall send down the LCR along with a copy of this judgment and order.