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2019 DIGILAW 974 (GAU)

Hiren Ali (Md. ) v. State of Assam

2019-08-30

SANJAY KUMAR MEDHI

body2019
JUDGMENT : Sanjay Kumar Medhi, J. 1. The instant appeal is preferred under Section 374(2) of the Cr.P.C. against a judgment and order dated 25.01.2011 passed by the learned Addl. Sessions Judge, FTC, Biswanath Chariali in Sessions Case No. 39/2010 whereby, the appellant had been convicted under Section 457 of the IPC and sentenced to undergo rigorous imprisonment for one year and a fine of Rs. 1000/- in default of which 30 days of rigorous imprisonment. 2. Before going to the grounds of appeal it would be convenient to narrate the background facts of the case. 3. The initiation of the present case was by lodging of a F.I.R. dated 13.03.2009 by one Md. Modini Ali, PW-3 before the Biswanath Chariali, P.S. In the said F.I.R., it was alleged that in the night of 06.03.2009, the accused person (appellant herein) had entered into his house while he was absent and flashed the light of his mobile phone near the face of his wife and at that time the informant had reached home and thereafter, grabbed the appellant. It has been alleged that on raising hue and cry, the people of the neighborhood came to the place of occurrence and decided to hold "Bichar" on the next date. Unfortunately, on the next dated i.e. 07.03.2009, the wife of the informant committed suicide inside their house. The F.I.R. was accordingly, lodged and registered under Section 457/306 IPC. After investigation, the Police had submitted the Charge-sheet and the matter was committed, leading to registration of GR. Case No. 113/2009. 4. The prosecution had adduced evidence through 8(eight) numbers of witnesses. That apart, certain items were also exhibited. 5. Ms. Mustana Khatoon who was examined as PW-1 deposed that she was present in the place of occurrence on that date when there was hue and cry and she had deposed that she had seen the informant grabbing the appellant/accused. She was also aware that a "Bichar" was decided to be held. However, in the cross-examination, she had candidly accepted that she was new to the area and did not know what had happened inside the house. 6. PW-2 is one Dil Mohammad, who had also came to the place of occurrence on hearing about the incident at Modini's house and had also found the appellant in his house. He further deposed of asking the Secretary of VDP to keep the accused in custody. 6. PW-2 is one Dil Mohammad, who had also came to the place of occurrence on hearing about the incident at Modini's house and had also found the appellant in his house. He further deposed of asking the Secretary of VDP to keep the accused in custody. In the cross-examination though suggestions were given regarding some money being owed by the informant to the accused or even to the extent of the informant torturing his wife for dowry, those were denied. 7. PW-3 is the informant himself. He deposed that the accused had come to their house on 06.03.2009 at about 8/8.30 p.m. and had asked him to accompany to a cultural function. Both of them thereafter, went to the show. However, the accused/appellant left the informant alone saying that he was going to his shop. As the accused did not return, the said witness/P W-3 had gone to his shop and not finding him there came to his house and found that the accused/appellant was sleeping with his wife and was engaged in a verbal altercation. When the accused appellant was apprehended, he asserted that the same was a prank. Many people of the neighborhood had arrived there and out of them, Musin and Masuddin caught the informant saying that a "Bichar" would be held in that regard. The following day, his wife had committed suicide leading to post-mortem examination. In his cross-examination the said P W-3 denied that he had purchased anything from the shop of the accused. He further stated that on hearing a hue and cry he had entered the house. The said PW-3 also clarified that his house was close to the house of the accused/appellant. 8. PW-4 is one Ashma Khatoon, who is the mother of PW-3. She deposed that on 6th of March, 2009 at about 9.30 p.m. the accused had entered into the house of PW-3. Thereafter, PW-3 had shouted for help on which, the PW-4 along with her husband came out and Modini had told them that the accused/appellant has entered his house. She also names certain persons who had come to the place of occurrence including PW-2. In the cross-examination, she deposed that out of 30- 40 people who had come to place of occurrence, she only knew one Jader. 9. PW-5 is Dr. Jogen Ch. She also names certain persons who had come to the place of occurrence including PW-2. In the cross-examination, she deposed that out of 30- 40 people who had come to place of occurrence, she only knew one Jader. 9. PW-5 is Dr. Jogen Ch. Bey who was the Senior Medical & Health Officer and had conducted the post mortem. As per the opinion rendered by him, the death was ante-mortem in nature and the death was due to hanging. 10. PW-6 was the in-charge of Kharikasion, Police Thana. He deposed that he had held the inquest on the dead body of Shyamlai Khatun. Though in the cross-examination a question was put to the said witness that if the death was by strangulation, he answered that he does not know. 11. PW-7 is an inquest witness. PW-7 was a Traffic Sub-Inspector and a signatory in the inquest report. 12. PW-8 is the In-charge of Chariduwar outpost under the Rangapara P.S. who had made investigation and submitted the charge-sheet. He however deposed that the victim was not strangulated. 13. The appellant was given a scope to explain as stipulated u/s. 313 of the Cr.P.C. where he had denied his involvement. 14. The offence in question being triable by the Court of Sessions, the same was committed to the learned Court of Sessions Judge and the trial was held in the Court of the Additional Sessions Judge, FTC, Biswanath Chariali. The learned Additional Sessions Judge after discussing the evidence and materials on record came to a finding that the ingredients of Section 306 IPC could not be proved. However, those of Section 457 IPC were proved beyond all reasonable doubts. Accordingly, the appellant was sentenced to undergo rigorous imprisonment for 1 (one) year and a fine of Rs. 1,000/-, in default of which 30 days of further rigorous imprisonment. 15. I have heard Shri M.A. Sheikh, learned counsel for the appellant. I have also heard Shri NX Kalita, learned Additional P.P., State of Assam. The records of the case which" have been produced are also carefully examined. 16. Shri Sheikh, learned counsel for the appellant has urged that the contents of the FIR and the version of the informant as P W-3 are inconsistent. I have also heard Shri NX Kalita, learned Additional P.P., State of Assam. The records of the case which" have been produced are also carefully examined. 16. Shri Sheikh, learned counsel for the appellant has urged that the contents of the FIR and the version of the informant as P W-3 are inconsistent. It has been submitted that in the FIR lodged by the PW-3 who is the husband of the deceased, there is no mention of the appellant going to any shop from the cultural programme which the two were attending. Further, it has been stated that on entering the house he had found the appellant flashing the light of his mobile phone near the face of the victim. However, as PW-3, he deposed that leaving him in the folk music programme, the appellant had come to his shop. It has also been stated that he had seen the appellant sleeping with his wife. This, as per the learned counsel for the appellant is not only exaggeration but a major inconsistency. Consequently it has been argued that the credibility of the said witness becomes doubtful and conviction on the basis of such witness cannot be sustained. 17. Shri Sheikh, learned counsel further submits that the ingredient of Section 457 has not been made out in the instant case and therefore the impugned conviction is bad in law. 18. The learned counsel for the appellant has also assailed the proceeding as a whole in view of the apparent delay in lodging the FIR. It is submitted that the incident having occurred on 07.03.2009 which involved the death of a person, lodging the same on 13.03.2009 is itself fatal further prosecution, more so when no explanation were forthcoming. 19. In support of the submission, Shri Sheikh relies upon the following case laws: i. Noor Aga Vs. State of Punjab & Anr, reported in (2008) 16 SCC 417 . ii. Subramaniam Vs. State of Tamil Nadu & Anr., reported in (2009) 14 SCC 415 . iii. Mahtab Singh & Anr. Vs. State of Uttar Pradesh, reported in (2009) 13 SCC 670 . iv. Gowrishankara Swamigalu Vs. State of Karnataka & Anr., reported in (2008) 14 SCC 411 . v. State of Bombay Vs. Rusy Mistry & Ors., reported in AIR 1960 SC 391 . 20. iii. Mahtab Singh & Anr. Vs. State of Uttar Pradesh, reported in (2009) 13 SCC 670 . iv. Gowrishankara Swamigalu Vs. State of Karnataka & Anr., reported in (2008) 14 SCC 411 . v. State of Bombay Vs. Rusy Mistry & Ors., reported in AIR 1960 SC 391 . 20. In the case of Noor Aga (supra) emphasis was given by the Hon'ble Supreme Court regarding examination of independent witnesses. However, in the instant case, independent witnesses were examined. In the case of Subramaniam (supra) it has been held that the prosecution must prove all the circumstances which lead to the conclusion of guilt of the accused. The case of Mahtab Singh has been cited to support the contention that delay in lodging the FIR would give rise to reasonable suspicion regarding the veracity of the prosecution case. In the case of Gowrishankara (supra) the powers of an Appellate Court deciding an appeal is emphasised. The case of Rusy Mistry (supra) has been cited to buttress the submission regarding presumption of innocence of an accused unless the guilt is proved beyond all reasonable doubt. 21. It has further been submitted that the occurrence being on 06.03.2009 on the basis of which an un-natural death (UD) was registered, the same has to be treated as an FIR and therefore, the FIR lodged by the husband on 13.03.2019 has to be treated as the statement u/s. 161 of the Cr.P.C. It is lastly submitted that during the trial, the appellant has remained in custody for a period of 2 months 2 days and if at all the conviction has to be maintained, the same can be u/s. 453 wherein the maximum punishment is 2 years. He further submits that the appellant has 4 children whom he has to look after. 22. Per contra Shri Kalita, learned Addl. P.P., submits that the present case was duly proved by the PW-2 and PW-3. The so-called inconsistencies in the version of PW-3 in his deposition vis-à-vis the contents of the FIR are negligible and superficial which will liable to be overlooked. As regards the argument on delay in lodging the FIR, Shri Kalita submits that there are enough explanations available which include sitting of a "bichar" and on failure of the same, the FIR was lodged. In any case, the learned Addl. As regards the argument on delay in lodging the FIR, Shri Kalita submits that there are enough explanations available which include sitting of a "bichar" and on failure of the same, the FIR was lodged. In any case, the learned Addl. P.P. submits that there is not even a single suggestion or cross-examination on the ground of delay and therefore that cannot be a foundation of a ground of challenge in the appeal. 23. The learned Addl. P.P. further submits that the case laws cited by the learned Counsel for the appellant are clearly distinguishable of facts and are therefore not applicable. 24. The rival contentions of the learned counsels for the respective parties have been duly considered and the records produced before this Court have been duly examined. 25. Though it appears that there are some inconsistencies in the contents of the FIR and the deposition of the PW-3, who is the informant, such inconsistencies cannot be said to be major that would vitiate the proceeding as such. After all, it is an admitted fact that a death is involved in the present case and this aspect of the matter cannot be overlooked. It is therefore incumbent to determine as to whether the involvement of the appellant with the incident and the offence in question has been proved beyond all reasonable doubt. 26. For better appreciation of the facts, it would be useful to refer Section 457 of the IPC which is quoted herein below: "457. Lurking house-trespass or housebreaking by night in order to commit offence punishable with imprisonment.- Whoever commits lurking house-trespass by night, or house-breaking by night, in order to the committing of any offence punishable with imprisonment, shall be punished with imprisonment of either description for a term which may extend to five years, and shall also be liable to fine; and, if the offence intended to be committed as theft, the term of the imprisonment may be extended to fourteen years." 27. It is seen that the essential ingredients is to commit lurking house trespass by night or house breaking by night in order to committing any offence punishable with imprisonment. 28. Let us also examine the provisions of Section 453 IPC, which is extracted herein below: "453. It is seen that the essential ingredients is to commit lurking house trespass by night or house breaking by night in order to committing any offence punishable with imprisonment. 28. Let us also examine the provisions of Section 453 IPC, which is extracted herein below: "453. Punishment of lurking house-trespass or house-breaking.- Whoever commits lurking house-trespass or house-breaking, shall be punished with imprisonment of either description for a term which may extend to two years, and shall also be liable to fine." 29. In the instant case, the charge u/s. 306 of the IPC has been held to be not proved and in absence of any appeal on that part, the same has attained finality. 30. In the instant case, the materials on record proves beyond reasonable doubt that the appellant had committed lurking house trespass in the house of the informant. However, the allegation of intending to commit any offence has not been able to be proved beyond all reasonable doubt. In the FIR, the informant (PW 3) has categorically stated that he found the appellant flashing the light of the mobile phone near the face of his wife, no allegation as such was levelled against the appellant. In his deposition the informant-husband as PW-3 has stated that he saw the appellant sleeping with his wife and was engaged in a verbal altercation. Even in his deposition, no offence as such was alleged against the appellant. No other material which may be incriminating appears to be there against the appellant. In absence of any specific allegations and materials, the ingredients of Section 457 of the IPC may not be said to be applicable and rather, in the opinion of this Court, at best a case u/s. 453 IPC is made out. 31. In view of the above, the instant appeal is partly allowed by modifying the sentence from u/s. 457 IPC to Section 453 IPC. Since it is submitted that the appellant was in custody during the trial for 2 months 2 days, the sentence is limited to the period undergone. However, the fine imposed is enhanced to Rs. 10,000/- in default of payment of which 30 days of rigorous imprisonment to be sustained. 32. Since it is submitted that the appellant was in custody during the trial for 2 months 2 days, the sentence is limited to the period undergone. However, the fine imposed is enhanced to Rs. 10,000/- in default of payment of which 30 days of rigorous imprisonment to be sustained. 32. The LCR may be transmitted to the learned Court of the Additional Sessions Judge, FTC, Biswanath Chariali immediately and the appellant be released forthwith on payment of the fine and if not connected with any other case. 33. The appeal is accordingly disposed of.