Research › Search › Judgment

Gauhati High Court · body

2025 DIGILAW 1605 (GAU)

Isak Ali v. Eklas Ali, S/o Late Kala Mia

2025-09-16

MRIDUL KUMAR KALITA

body2025
JUDGMENT : MRIDUL KUMAR KALITA, J. 1. Heard Mr. S.K. Ghosh, the learned counsel for the petitioners. Also heard Mr. R.J. Baruah, the learned Additional Public Prosecutor appearing for the State respondent as well as Mr. M.H. Rajbarbhuiyan, the learned counsel for respondent No. 2. 2. This application under Section 401 , read with Section 482 of the Code of Criminal Procedure, 1973, has been filed by the petitioners, namely, Isak and seven others impugning the judgment and order dated 08.06.2012, passed by the learned Additional Sessions Judge, (FTC) Karimganj in Criminal Appeal No. 19(4)/2011, whereby, it upheld the judgment and order dated 17.10.2011, passed by the learned SDJM(S), Karimganj in CR Case No. 2978/2009, whereby the present petitioners were convicted under Section 447 of the INDIAN PENAL CODE , 1860 and were sentenced to pay a fine of Rs. 100 each. The petitioners were also convicted under Section 427 of the INDIAN PENAL CODE , 1860 and were sentenced to pay a fine of Rs.50 each and with default stipulation. 3. The facts relevant for consideration of the instant revision petition, in brief, are that the respondent (complainant No. 1) had lodged a complaint on 10.12.2009, before the Court of the learned Chief Judicial Magistrate, Karimganj, wherein, it was alleged that on 06.12.2009, at about 7:00 AM, all the accused persons named in the complaint petition entered into the premises of the complainant and destroyed the boundary fencing and also took away 30-35 betel-nut trees. So, when the complainant protested, the accused person threatened him of dire consequences and has used slang language against the brother of the complainant. 4. It was also alleged that the total loss cost to the complainant was to the tune of Rs.40-45,000/-.The said complaint was registered as CR Case No. 2978/2009 and the learned SDJM(S), Karimganj took cognizance against all the accused persons named therein under Sections 147 /447/379/427 of the INDIAN PENAL CODE , 1860 and processes were issued against them. After appearance of the accused persons before the Court, 2(two) witnesses were examined before framing of charges and thereafter, charges under aforementioned provisions were framed against all the accused persons. When the charges were read out and explained, they pleaded not guilty and claimed to be tried. The complainant only examined 2(two) prosecution witnesses. After appearance of the accused persons before the Court, 2(two) witnesses were examined before framing of charges and thereafter, charges under aforementioned provisions were framed against all the accused persons. When the charges were read out and explained, they pleaded not guilty and claimed to be tried. The complainant only examined 2(two) prosecution witnesses. The accused persons were examined under Section 313 of the Code of Criminal Procedure during which they denied the truthfulness of the testimony of the complainant's witness and pleaded their innocence. 5. Ultimately, by the judgment dated 17.10.2011, the petitioners were acquitted of charges under Sections 147 /379 of the INDIAN PENAL CODE , 1860. However, they were convicted under Sections 447 /427 of the INDIAN PENAL CODE , 1860 and were sentenced as has been discussed in the foregoing paragraphs. Being aggrieved with the aforesaid judgments the petitioners preferred an appeal before the Court of the learned Sessions Judge, Karimganj and the appeal was registered as Criminal Appeal No. 19(4)/2011, which was ultimately transferred to the Court of the learned Additional Sessions Judge, Karimganj. 6. However, by the impugned judgment dated 08.06.2012, the appeal preferred by the prosecution was dismissed and the conviction and sentence imposed on the present petitioners by the Trial Court was upheld. 7. The learned counsel for the petitioners has submitted that both the Trial Court as well as First Appellate Court have erred in convicting the present petitioners without discussing the evidence of the PW-1 & the PW-2,more particularly, the cross- examination part of the said witnesses. He also submits that the PW-1 has deposed, in his evidence, that at the time of incident Abdul, Reyaj Ali, Siddique Ali, Alimuddin Forad Ali and some other persons gathered at the place of occurrence. However, apart from the PW-2, namely, Khalil Uddin none of the witnesses was stated to have seen the incident. No other eye witness was examined. 8. The learned counsel for the petitioners has also submitted that in the instant case, the complaint has been filed after a lapse of 8 to 9 months of the date of alleged incident and plausible cause for delayed lodging of the complaint has not been given by the complainant and both the Trial Court as well as First Appellate Court ignored this fact. 9. 9. He has also submitted that the PW-2 is an interested witness inasmuch as he is the related cousin brother of the complainant and he had a civil suit pending against the petitioner No. 3 in respect of a plot of land covered by Dag No. 508. The learned counsel for the petitioner has also submitted that as several litigations are pending between both the parties, the instant case has been falsely lodged against the present petitioners. 10. He also submits that the complainant has failed to proof the ingredients of offence under Section 447 of the INDIAN PENAL CODE , 1860 inasmuch as no documentary evidence was adduced to prove that the complainant is the owner of the plot of land covered by the Dag No. 509 and he also submits that no evidence is there as to whether the plot of land in respect of which the trespass has been alleged is covered by the Dag No. 509. He further submits that there is nothing on record to show that there was a mischief as apparently the complaint case has been lodged after unexplained delay. Moreover, except the oral evidence of the complainant and that of the interested witnesses, the complainant has failed to adduce any evidence, therefore, both the Court had erred in relying on such evidence in coming to the finding of guilt of the present petitioners. 11. The learned counsel for the petitioners has submitted that the evidence on record does not specify as to which of the present petitioners has destroyed or cut what kind of trees in the land of the complainant as no evidence to that effect is there. 12. The learned counsel for the petitioners has also submitted that in the complaint petition the date of alleged offence has been mentioned as 06.12.2009 and the complaint was filed on 10.12.2009 i.e. after 4 days of the alleged incident. However, in the evidence of PW-2, it is apparent that the complaint was filed after 8 to 9 months of the alleged incident. 13. However, in the evidence of PW-2, it is apparent that the complaint was filed after 8 to 9 months of the alleged incident. 13. The learned counsel for the petitioners, therefore, submits that in the interest of justice, the impugned judgment of the First Appellate Court whereby it has upheld the judgment of the learned Trial Court whereby convicting the present petitioners under Sections 427 /447 of the Indian Panel Code and imposing the fine of Rs.150/- respectively is liable to be set aside. 14. On the other land, Mr. R. J. Baruah, the learned Additional Public Prosecutor has submitted that State being a formal party in the case, he adopts the submission of learned counsel for the private respondents. However, he submits that while exercising revisional jurisdiction, this Court has inherent limitation, as it cannot re-appreciate the evidence on record to come to a different finding on facts which has been arrived at by the Trial Court as well as the First Appellate Court. 15. On the other hand, Mr. M. H. Rajbarbhuiyan, learned counsel for the respondent no. 1 has submitted that both the Trial Court and First Appellate Court had rightly convicted the present petitioners and the sentenced them to pay a minimum fine of Rs.150/- respectively the same should not be interfered with by this Court. 16. I have considered the submissions made by the learned counsel for both sides and have gone through the materials available on record, including the case records of the Trial Court, as well as the first Appellate Court. 17. On perusal of the impugned judgment of the First Appellate Court, it appears that while upholding that the judgment of the Trial Court, it has observed that the PW-1 has given implicating materials against the petitioners which was corroborated by the evidence of PW-2. It was also observed that the evidence of the said witnesses could not be demolished during their cross- examination. The First Appellate Court has also observed that the Trial Court has discussed the evidence of PW-2 and come to the finding of the guilt of the petitioners on the basis of the evidence on record. It was also observed that the evidence of the said witnesses could not be demolished during their cross- examination. The First Appellate Court has also observed that the Trial Court has discussed the evidence of PW-2 and come to the finding of the guilt of the petitioners on the basis of the evidence on record. Bare perusal of the impugned judgment of the First Appellate Court as well as that of Trial Court would reveal that the findings arrived at by the Trial Court is not without any basis.The conclusion arrived at may at best be regarded as erroneous, however, the same cannot be regarded as perverse. 18. It is settled proposition of law that the revisional Court will not interfere even if the wrong order is passed by a Court having jurisdiction, in the absence of a jurisdictional error. Moreover, it is also a well settled proposition of law that if the Courts below have recorded the finding of fact the question of reappreciation of evidence by the third Court does not arise unless it is found to be totally perverse [see “ Manju Ram Kalita Vs. State of Assam ” reported in (2009) 13 SCC 330 , para 9 ]. 19. The Apex Court has observed in the case of “ Bir Singh Vs. Mukesh Kumar ” reported in “ (2019) 4 SCC 197 ” as follows:- “ It is well settled that in exercise of revisional jurisdiction under Section 482 of the CRIMINAL PROCEDURE CODE , the High Court does not, in absence of perversity, upset concurrent factual findings. It is not for the revisional Court to reanalyze and reinterpret the evidence on record .” 20. In the instant case, as already discussed in the foregoing paragraphs, the judgment of conviction and sentence imposed on the petitioner by the Trial Court and its affirmation by the First Appellate Court cannot be regarded as perverse under any circumstances. This Court, therefore, is of the considered opinion that it is not a case which justifies reappreciation of evidence on record by this Court in exercise of its revisional jurisdiction. 21. For the reasons mentioned in the foregoing paragraphs, this revision petition is hereby dismissed. 22. Send back the Trial Court records as well as record of the Appellate Court to the respective Courts. 23. 21. For the reasons mentioned in the foregoing paragraphs, this revision petition is hereby dismissed. 22. Send back the Trial Court records as well as record of the Appellate Court to the respective Courts. 23. The petitioners are directed to appear before the Trial Court to pay the fine imposed on them by the impugned judgment of the Trial Court within a period of 45(forty-five) days from the date of this judgment.