G.R. No. 119/93
U/S 174/324//353 of the I.P.C

1. Shri Abhi Roy Choudhury
2. Smti Renu Deka
3. Smti Madhurima Choudhury
4. Smti Rashmi Das
5. Shri Girbala Das

…………… Accused

Shri S.P. Moitra, A.J.S.
Chief Judicial Magistrate,
Kamrup, Guwahati.
For the State: Smti M. Saikia, learned Addl. P.P.
For the accused: Shri B. Jahan and Shri A. Deka,
Date of Evidence: 8.3.10, 14.7.10, 16.8.10, 13.3.12
Date of argument: 26.3.12
Date of judgement: 9.4.12


1. Brief facts of the case of the prosecution, as emerged from the FIR submitted by Shri Sunil Kalita, the then Civil Nazir, Judge’s Court,Guwahati, are that on 2/1/93 at about 9.30 AM the informant along with the Nazarat Staff, police party and the decree holder went to carry out the order of eviction in Title Execution Case No 23 of 1989 of the court of Sadar Munsiff, Guwahati. They were obstructed by the judgment debtor Abhi Ray Choudhury(accused),the member of his family and other goondas. During the eviction work, said Abhi Ray Choudhury, the members of his family and hired goondas formed an unlawful assembly and attacked the eviction party with lethal weapons. As a result, smti Padma Bora SI of police and other police personnel received injuries.

2. On the basis of the said information (Exhibit 1) Chandmari P.S. Case No. 2/93 was registered u/s 147/353/326/307 of the IPC and was taken up for investigation. The accused persons, named above, were arrested from the place of occurrence and they were sent to jail. Police also seized some articles from the place of occurrence. After completion of the investigation the accused persons named above, were charge sheeted u/s 143/353/325/307 of the IPC and were sent to face the trial.

3. Copies of the relevant documents were furnished to the accused persons. The offence u/s 307 IPC being exclusively triable by the Hon’ble Court of Sessions, the case was committed to the court of Hon’ble Sessions Judge, Kamrup. Subsequently, the case was made over to the court of Additional Sessions Judge (FTC), Kamrup for disposal. However, the Ld Additional Sessions Judge (FTC), Kamrup did not find any material for framing of charge u/s 307 IPC. The Ld Additional Sessions Judge (F.T.C.), Kamrup framed
charge against the accused persons named above, u/s 147/323/324/353 of the IPC. The charge was read over and explained to the accused persons to which they pleaded not guilty and stood to face the trial. The said offence being not exclusively traible by the court of Sessions, the case was sent back to this court for trial.

4. The accused persons accordingly appeared before this court to face the trial. To bring home the charge, prosecution examined as many as five witnesses on its behalf and also exhibited three documents. Defence plea was of complete denial of any guilt and defence examined none on its behalf.Statements of the accused, were recorded u/s 313 of CrPC. I heard argument advanced by the Ld Counsel for the parties.

5. Points for the determination

1. Whether on 2/1/93, at about 9.30 AM, the accused persons along with others formed an unlawful assembly with the common object to obstruct the execution of a lawful decree of the court of Sadar Munsiff Kamrup?

2. If so, whether the accused persons, being the members of the said unlawful assembly, used force or violence, in prosecution of the said common object to obstruct the execution and voluntarily caused hurt to SI Smti Padman Boraand other police personnel ?

3. Whether the said accused persons being the members of the unlawful assembly, obstructed the Civil Nazir, the Staff of the Nazarat and the police personnel from executing the lawful decree of the Sadar Munsiiff, Guwahati ?

Decisions and reasons thereof

6. I have gone carefully through the entire evidence, both oral and documentary, on record and the materials placed before me. For the sake of convenience and brevity, the evidence on all the points are taken up together for discussion.

7. PW1 Sunil Kalita, is the informant of the case and he was the Civil Nazir, in the establishment of District and Sessions Judge, Kamrup on the relevant date and time. His testimony is that a writ of handing over of possession to decree holder was issued by the Sadar Munsiiff, Guwahati in Title Execution case No 23of 1981 and he was directed to execute the writ and to hand over the possession of the decreetal land to the decree holder with the help of police. His testimony reveals that on 2/1/93, he along with the Nazarat staffand police party went to the decreetal land ,situated in front of Public Health Office, Bamunimoidam for execution of the writ. He added that decree holder Shah Nawaz Hussian also accompanied him. He added that after reaching the spot at about 10.AM he asked accused Abhi Roy Choudhury and the members of his family to vacate the possession of the land. His testimony also reveals that the said accused person had a motor driving training centre in that place and he had mobilized some people there and they did not agree to vacate the possession of the land. He added that the said assembly created an unruly situation, as a result of which the officer in charge of the police party tried to drive them out. The further testimony of the witness reveals that the accused persons and other members of the assembly started fighting with the police party and the lady police officer Padma Bora received injury. He added that the said lady officer was taken to the hospital and thereafter one Executive Magistrate, Rajib Bora went to the place of occurrence to control the situation. The testimony of this witness also reveals that thereafter he handed over possession of the decreetal land to the decree holder. He added further that after coming back, he lodged the ejahar at 11.00 AM at Chandmari P.S. against accused Abhi Ray Choudhury and members of his family. Exhibit 1 is the FIR submitted by him. He added further that police seized bamboo sticks, wooden sticks, bamboo pichkarri and a dao and proved Exhibit 2 as the seizure list. This witness specifically stated that accused Abhi Ray Choudhury was accompanied by his wife Madhurima, Giribala Das, Renu Deka, Rashmi Das and others.

8. During cross examination the witness added that accused persons demanded one week time to vacate the premises. The witness further asserted that as the accused persons obstructed them in execution of the decree, police force tried to control the mob and then they caused hurt to the lady police officer. However, he admitted that he did not see who had caused hurt to the lady police officer. There is no denial of the fact that said sunil Kalita being the Civil Nazirwent to the place of occurrence for execution of a writ issued by a competent court of law. There is also no denial or challenge of the facts stated by said witness regarding creation of a chaotic situation at the place of occurrence by the accused persons to obstruct the lawful decree.

9. The evidence of PW1 Sunil Kalita, received full corroboration from the testminoy of Ratneswar Deka (PW 2), a process server working in the said establishment on the relevant date and time. His testimony reveals that as they reached the place of occurrence, they found the gate closed. He added that Judgment Debtor Abhi Roy Choudhury (accused) and the members of his family were there. He further testified that as they could not enter, police forcibly opened the gate and as soon as they entered into the premises, a hulla was raised. The witness further corroborated that as they asked the Judgment Debtor to leave vacant khas possession of the land, they did not agree and the they mobilized a large gathering which created a unruly situation. The witness further added that thereafter police tried to control the situation and then Smt Padma Bora, lady police Officer came out with head injury and told them that she was caused hurt by the persons inside the room. He also added that one or two police personnel too received injury. He further corroborated that thereafter more police force along with an Executive Magistrate, came to the spot and they controlled the situation. He added that thereafter he himself and the Civil Nazir handed over the vacant possession of the land to the decree holder. He also proved the seizure of articles by the police. During cross examination the witness added that at first they tried to convince accused Abhi Ray Choudhury, but he did not agree. He also added that some outsiders were also there but he could not say who were they.

10. Coupled with this, the evidence of PW3 Khira Kanta Bora is also important. He was attached to Chandmari P.S. and he was entrusted to lead the police force to accompany Sri Sunil Kalita, Civil Nazir and other staff in execution of a decree for eviction. He corroborated the testimony of two witnesses by deposing that as they went to the spot, accused AbhiRoy Choudhury closed the gate and obstructed the Nazarat staff in entering into the premises. He further corroborated that a large gathering of people came to obstruct including some women. He added that thereafter they forcibly entered into the premises and through O/C, Chandmati P.S. informed the DSP. Headded further that as soon as the labourers stared work, accused persons attacked them with sticks etc,and also stated that ABI SI Smti Padma Bora received injury. Said padma Bora was inflicted cut injury at head by another woman. Constable Tarun Sarma also received injury. The further revelation made by the said witness is that there were accused Abhi Roy Choudhury, his wife and other members of his family and then the women constable arrested and took them to the police station. The witness further added that he seized one dao 15 numbers of sticks, fifteen numbers of pichkarri made of bamboo and one wooden stick from inside. He added that thereafter the Nazarat handed over the possession of the land to the decree holder. During cross examination the witness asserted that accused Abhi Roy Choudhury had a motor driving centre in the said land. He further added as soon as the police force entered the premises, the people who remained inside the premises, fled away from backside.

11. The most important witness in this case is victim Padma Bora. She has been examined in this case as PW5 and in her evidence; she lent full corroboration to the evidence of other witnesses of the prosecution side. Her testimony also reveals that all of them entered into the house, where they went for execution.She further testified that she was the last person and as soon as, the police party went out, suddenly some women came out from some hidden place and they obstructed her from going out and forcibly closed the door. Her further testimony is that the said women attacked her with dao and stick. She specifically stated that there were seven women; out of them three were young girls. She added that as she tried to open the door, one of the girls gave her two blows with the dao on her head and then she raised alarm and opened the door. She also added that then one police constable Tarun Sarma entered into the house and he was also caused hurt. During cross examination, she added that she could recognize her assailant as Renu Deka, as she was called by the other women by that name. Defence could not disprove her evidence.

12. PW4 Hara Kanta Sut is the Investigating Officer who submitted the charge sheet in this case and he is simply an official witness.

13. Now, from the entire evidence on record, I find that there is ample corroboration to the fact that the accused persons along with others formed a strong assembly, being more than five in numbers, with the common object to obstruct the execution of the Writ issued by a competent Civil Court for handing over the vacant possession of the decreetal land. Thus, the very purpose of forming such assembly was unlawful. The unlawful intent is also evident in mobilization of so many sticks and other weapons in the premises, which were subsequently seized by police, vide Exhibit 2.Hence, there is no doubt that the accused persons were the members of the unlawful assembly, the common object of which was to obstruct the lawful execution of the Writ of a competent Civil Court. There is also sufficient corroboration to the fact that being the members of the said unlawful assembly, the accused persons used force and violence and voluntarily caused hurt to SI Smti Padma Bora and one other police constable Tarun Sarma while obstructing the said execution of the lawful decree of a Court. However,regarding the use of the sharp cutting object in causing hurt to Smti Padma Bora, there remains scope of doubt, as in spite of all efforts, the doctor could not be brought before the Court. In the Medico legal report,the doctor opined that the hurt was caused by hard blunt object. I, therefore, find that the offence under Section 324 IPC has not been established. In my considered opinion, prosecution could establish the guilt of the accused persons U/S 147/323/353 IPC removing all shadow of doubt.

14. In result, accused Shri Abhi Roy Choudhury, Smti Renu Deka, Smti Madhurima Choudhury, Smti Rashmi Das & Shri Girbala Das are held guilty of offence, punishable U/S 147/323/353 of the IPC and accordingly they are convicted under the said sections of law.

15. Considering the facts and circumstances of the case, the away the convicts forming an unlawful assembly tried to resist the lawful execution of a decree of the Civil Court and thereby used force and violence and also caused hurt to a lady police officer and other police personnel, I find that the convicts are not entitled to get the benefit of the Protection of the Offenders Act.

16. Heard the convicts on the point of sentence,it is true that 19 years have since been passed from the date of occurrence and most of the convicts have turned to more than 60 years of age and ailing and infirm. Besides, out of the five convicts four are women. It is also kept in mind that most of the convicts have undergone a period of imprisonment for about two months in the jail. Keeping all these facts in mind and considering the long pendency of the case, I like to sentence the convicts leniently.

17. Accordingly, the convicts are sentenced to undergo 2 (two) months imprisonment each U/S 147/353 IPC along with a fine of Rs. 500/- (five hundred) each under both the counts, i/d S.I. for seven days. The period of imprisonment already under gone by the convicts will be set off and it will run concurrently. Further the convicts are sentenced to pay a fine of Rs. 1000/- (one thousand) each U/S 323 IPC, i/d S.I. for 15 (fifteen) days. The amount of fine,if realized will go to the State Exchequer. Furnish free copy of judgement to the accused immediately.

18. Given under my hand and seal of this court on this
9th day of April, 2012.

Dictated & corrected by me:

Chief Judicial Magistrate,
Kamrup, Guwahati.
Chief Judicial Magistrate,
Kamrup, Guwahati.
Typed by:
U. Talukdar, Stenographer.

विनम्र अनुरोध: भविष्य में जारी होने वाली नोटिफिकेशन को अपने ईमेल पर पाने के लिए अपने ईमेल को सब्सक्राइब करें।

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