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2025 DIGILAW 745 (GAU)

Abdul Hasen @ Firdus Ali v. State Of Assam

2025-05-08

PARTHIVJYOTI SAIKIA

body2025
JUDGMENT : PARTHIVJYOTI SAIKIA, J. Heard Mr. A. Roshid, the counsel appearing for the petitioner. Also heard Mr. J. Chutia, the learned Addl. Public Prosecutor, Assam. 2. This is an application under Section 397 read with Section 401 of the Criminal Procedure Code challenging the judgment and order dated 17.06.2011 passed by the learned learned Chief Judicial Magistrate, Barpeta in G.R. Case No.1315/2003, affirmed by the judgment dated 20.11.2012 passed by the learned Sessions Judge, Barpeta in Criminal Appeal No.21/2011. 3. On 03.10.2003, Ghanakanta Baishya had lodged an FIR before police alleging that on that day at about 11 P.M., the appellant Abdul Hasen @ Firdus Ali (hereinafter referred to as “the appellant” only) was caught red handed while stealing a cow. The stolen cow was also recovered from the possession of the appellant. Police field the charge sheet under Section 379 of the Indian Penal Code read with Section 411 of the said Code. 4. The prosecution side examined 7 witnesses. On the basis of the evidence on record, the trial court convicted the appellant under Section Section 379 of the Indian Penal Code read with Section 411 of the said Code. The trial court sentenced the appellant to undergo rigorous imprisonment of 6 months and to pay fine of Rs.500/- with default stipulations. 5. The learned appellate court agreed with the decision of the trial court and dismissed the appeal. 6. I have considered the submissions made by the learned counsel of both sides. 7. In normal circumstances, a revisional court is not required to go through the evidence. But in this case, I have decided to peruse the evidence. 8. The first prosecution witness was the informant. He has stated that when he found his cow missing from his house, he started a search for the cow. He said that the other villagers brought the appellant and the cow in his house. 9. The second prosecution witness was Monoj Baishya. He is a younger brother of the informant. He has stated in his evidence that on a particular day, in the evening, some villagers brought the appellant along with a cow to the house of his elder brother. 10. The third prosecution witness is Robin Kalita. He stated in his evidence that he did not know anything about the occurrence. 11. The fourth prosecution witness is Niranjan Baishya. He has stated in his evidence that on a particular day, in the evening, some villagers brought the appellant along with a cow to the house of his elder brother. 10. The third prosecution witness is Robin Kalita. He stated in his evidence that he did not know anything about the occurrence. 11. The fourth prosecution witness is Niranjan Baishya. He has stated in his evidence that about 6 years ago, villagers had apprehended a thief along with a cow. This witness has disclosed that he had handed over that thief to police. This witness did not know as to who was the owner of the so-called stolen cow. 12. In cross-examination, the aforementioned witnesses did not state any material facts. Therefore, their cross-examination do not deserve to be discussed in this judgment. 13. The fifth prosecution witness is Kanak Deka. He has stated in his evidence that a cow belonging to the informant was stolen by somebody from his agricultural field. Some people of the village, he said, had apprehended the present appellant and handed him over to police. This witness has stated that police has recovered the stolen cow and returned it to Ghanakanta Baishya. 14. In his cross-examination, the fifth prosecution witness stated that he did not remember if the person standing in the court dock was the person who was apprehended by the villagers for stealing the cow of Ghanakanta Baishya. 15. The sixth prosecution witness is Hemen Talukdar. He has stated in his evidence that while he was looking after his cows, which were grazing along with other cows, one person arrived there and tried to take away a cow belonging to Ghanakanta Baishya. This witness apprehended the said person and brought him and the cow to Ghanakanta Baishya. 16. The cross-examination of the witness Hemen Talukdar has nothing material to discuss. 17. The seventh prosecution witness is the Investigating Officer who spoke about his investigation. 18. I have carefully gone through the prosecution witnesses. 19. The evidence available in the record, clearly show that the appellant tried to commit theft of a cow belonging to the informant Ghanakanta Baishya. But he could not do that because of the witness Hemen Talukdar. 20. In a criminal trial, the mens rea of an accused must be proved. 18. I have carefully gone through the prosecution witnesses. 19. The evidence available in the record, clearly show that the appellant tried to commit theft of a cow belonging to the informant Ghanakanta Baishya. But he could not do that because of the witness Hemen Talukdar. 20. In a criminal trial, the mens rea of an accused must be proved. At the time of examination under Section 313 of the CrPC, the trial court did not ask any question in respect of the evidence of Hemen Talukdar. This witness claimed to be the eye witness when he stated in evidence that the appellant tried to take away one cow belonging to Ghanakanta Baishya and he apprehended the appellant and brought him to the house of Ghanakanta Baishya. Not a single question has been asked by the trial court under Section 313 of the CrPC and thereby the appellant was not given an opportunity to explain his case. 21. It is a settled position of law that Section 313 of the CrPC is not a simple ritual. This is the stage of trial when an accused is afforded an opportunity to explain his defence against the accusation brought against him. In the case in hand, the trial court failed to give the appellant an opportunity to explain his case. Therefore, the impugned judgment is bad in law. 22. For the aforesaid premised reasons, the revision petition is allowed. 23. The judgment and order dated 17.06.2011 passed by the learned learned Chief Judicial Magistrate, Barpeta in G.R. Case No.1315/2003, affirmed by the judgment dated 20.11.2012 passed by the learned Sessions Judge, Barpeta in Criminal Appeal No.21/2011, is set aside. 24. The appellant Abdul Hasen @ Firdus Ali is acquitted from this case. The revision petition is disposed of. Send back the LCR.