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2019 DIGILAW 211 (GAU)

Kishan Rabha v. State of Assam

2019-02-15

RUMI KUMARI PHUKAN

body2019
JUDGMENT : RUMI KUMARI PHUKAN, J. 1. Heard Mr. K. Sarma, learned counsel, assisted by Mr. A.K. Gupta, learned Amicus Curiae, appearing for and on behalf of the petitioner as well as Mr. R.J. Baruah, learned Addl. P.P., Assam representing the State respondent. 2. This revision is directed against the judgment and order dated 09.06.2010, passed by the learned Sessions Judge, Goalpara in Criminal Appeal No.20/2005, arising out of G.R. Case No.477/1997, convicting the accused/petitioner under Section 448/385 of the IPC, sentencing him to under to R.I. for two months under Section 448 of the IPC and R.I. for four months under Section 385 of the IPC. 3. The case of the prosecution in brief is that, one Abdur Rahim lodged an FIR before the O.C, Mornoi Police Station alleging inter alia that three persons came to their house and demanded Rs. 15,000/- from him by showing threat of pistol as on 04.06.1997 at about 7:45 P.M., by introducing themselves as member of ULFA organization. But as the informant raised alarm, the local people arrived and while the miscreants tried to fled away, they were caught red handed along with the pistols and handed over to police. The informant identified those miscreants as Ahim Rabha, Saidul Rabha and Kishan Rabha. 4. On the basis of the FIR, police registered a case against three accused persons under Sections 448/387/34 of the IPC read with Section 25(1)(a) of the Arms Act. During the investigation, one of the accused namely Ahim Rabha died in the hospital and the accused Saidul Rabha turn absconder. The remaining accused Kishan Rabha (present petitioner) faced the trial, who denied the charge that was framed under Sections 448/387/34 of the IPC read with Section 25(1)(a) of the Arms Act. 5. To prove the charge, the prosecution examined altogether seven witnesses including the Investigating Officer and the defence examined none. The plea of the defence is of denial. At the conclusion of the trial, the learned trial Court convicted the accused person under Sections 448/387 of the IPC and sentenced him to R.I. for three months under Section 448 of the IPC and R.I. for six months under Section 387 of the IPC. 6. The plea of the defence is of denial. At the conclusion of the trial, the learned trial Court convicted the accused person under Sections 448/387 of the IPC and sentenced him to R.I. for three months under Section 448 of the IPC and R.I. for six months under Section 387 of the IPC. 6. On appeal being preferred by the petitioner, the learned appellate Court while maintaining the conviction, reduced the sentence to two months under Section 448 of the IPC and four months under Section 385 of the IPC, by holding that the offence under the offence under Section 385 of the IPC will be attracted instead of Section 387 IPC and also the fact that the matter is 13 years old. 7. Challenging the impugned order of the Sessions Court, the present revision has been preferred by the petitioner on the ground that the learned Court has failed to appreciate the matter in proper perspective of law, as there was no proper identification of the accused persons by the witnesses and they were falsely implicated in the present case. Further contention of the petitioner is that he was caught at a distance of one kilometer from the house of the informant while he was going on the road and he has been falsely implicated in the present case. There is no evidence as to use of pistol by the accused petitioner to the effect that with such pistol he has threatened the informant by demanding money. Alternatively there is prayer for some leniency because of the pendency of the case since long back from the year 1997, whereas the other accused persons have absconded and died and only the present accused/petitioner has faced the trial. 8. I have heard the submission of Mr. K. Sarma, learned counsel for the petitioner who has reiterated the ground that has been taken in the appeal memo. Also heard the learned counsel for the State respondent and gone through the materials on record as well as gone through the evidence on record. 9. So far as the evidence of the informant Abdur Rahim is concerned, he as PW.1 has substantiated his allegation that has been made in the FIR that on the date of occurrence three youths came inside his house and introduced themselves to be the member of ULFA and demanded Rs. 10,000/-, who which he denied. 9. So far as the evidence of the informant Abdur Rahim is concerned, he as PW.1 has substantiated his allegation that has been made in the FIR that on the date of occurrence three youths came inside his house and introduced themselves to be the member of ULFA and demanded Rs. 10,000/-, who which he denied. The accused persons also threatened him to kidnap him for such non-payment. Hearing the commotion, local people arrived and the miscreants fled away. However the local people apprehended them and police was informed. PW.1 identified the present accused/petitioner as Kishan Rabha, Ahim Rabha and Saidul Rabha, who were involved in the aforesaid incident. He stated that they have come with two pistols. On being informed, the police arrived and seized the pistols and arrested the accused persons. 10. Pw.2 Abdul Zalil is the related cousin of PW.1 who have also supported the version of informant that upon hearing commotion in the house of PW.1, he went outside the room to see the matter, then three youths prevented him from entering into the room of the PW.1. He made hue and cry and villagers arrived after hearing his commotion and in the meantime, those persons fled away. He also identified all the accused persons including the present petitioner Kishan Rabha. It is stated that police were informed who arrested the accused persons. 11. The other witnesses namely, PW.3, PW.4 and PW.5 although has not seen the exact occurrence but they arrived at the house of the informant after the incident and saw that two Rabha youths were tied by the public, as stated by the PW.2. PW.4 has also stated that hearing the incident he also arrived at the house of the informant by closing his shop and saw some ULFA men has entered the house of informant. Then he found that two Rabha youths were kept under confinement in the house of informant and another has ran away, who was also caught by the local people and police was informed. The PW.5 has also given similar sort of evidence and he is a hearsay witness, who arrived in the house of PW.1 along with these two witnesses and had given similar statement. 12. It is stated that the police seized two pistols and two bicycles through Exhibit 2 and 3 after the incident from the house of the informant. 13. The PW.5 has also given similar sort of evidence and he is a hearsay witness, who arrived in the house of PW.1 along with these two witnesses and had given similar statement. 12. It is stated that the police seized two pistols and two bicycles through Exhibit 2 and 3 after the incident from the house of the informant. 13. On the scrutiny of the evidence adduced, it is found that the evidence of PW.1 is corroborated on the materials aspect that on the fateful day, the present petitioner along with two others trespassed into the house of the informant with a view to extort money by way of threat. But they could not succeed due to arrival of the local people hearing the commotion and fled away. It has also been sufficiently brought on record that the accused persons were identified by the PW.1 and PW.2 properly and there is no challenge as to the identification. The other witnesses have also lend support to the facts and circumstances of the case regarding what has been stated by the informant and the other witnesses that hearing the commotion about the illegal demand by ULFA people in the house of the informant, they went to the house of the informant and found two Rabha youths were confined by the local people and another fled away. 14. The officer who has examined the seized guns has also testified as PW.6, that the seized article A and B are fire arms and were country made. But as discussed above, the evidence is silent as regards the use of such pistols at the time of occurrence, although they may be in the possession of the accused persons. In view of which the learned trial Court as well as the appellate Court has not awarded any conviction under the Arms Act. 15. Lastly the PW.1 is the Investigating Officer has also supported the case of the informant to the effect that they were informed by the local people that some miscreants have demanded money in the house of the PW.1. Then those miscreants were apprehended by the local people. He visited the place of occurrence immediately and found a huge people gathered in the house of the informant and they have also kept in confinement two youths in the courtyard of the PW.1. He also identified the accused persons who were apprehended by the people. Then those miscreants were apprehended by the local people. He visited the place of occurrence immediately and found a huge people gathered in the house of the informant and they have also kept in confinement two youths in the courtyard of the PW.1. He also identified the accused persons who were apprehended by the people. He arrested all those people and also the bicycles and two revolvers found lying at the place of occurrence, through Exhibit 2 and Exhibit 3. The PW.1 submitted the FIR to him vide Exhibit 1. He stated further that the seized arms were sent for FSL examination and after receipt of the report from the FSL and on completion of the investigation, he submitted charge sheet against the accused persons. 16. The complicity of the present accused petitioner with the offence alleged has been fairly established by the prosecution that on the date of occurrence, the accused along with others committed trespass into the house of the informant with a view to extort money from him but however could not succeed to extort any money from him due to his refusal and arrival of local people. On the face of the matters on record and the positive evidence that has been adduced, it can be found and hold that the accused/person has committed offence under Sections 448/385 of the IPC, as has been held by the Courts below. There is no illegality or irregularity in the finding so arrived by the appellate Court. 17. However considered the submission of learned counsel for the petitioner that the accused petitioner is in the legal battle since 1997 and has suffered a lot. By this time more than twenty two years have elapsed till disposal of this petition. Having regard to the same and also the fact that no any sort of extortion could have been made by the petitioner except some threat, the accused petitioner is hereby sentenced to the period already undergone by him during the course of investigation. 18. This Court appreciate the assistance rendered by Mr. A.K. Gupta, the learned Amicus Curiae while conducting the case and the High Court Legal Services Authority is hereby directed to provide him a sum of Rs. 7,000/- (Rupees seven thousands) only as remuneration. 19. With the above findings, the present petition stands disposed of. 20. Return the LCR along with a copy of judgment immediately.