JUDGMENT - IPC 441,447,325 - MUKUT SONARI Vs STATE OF ASSAM- THE COURT OF THE ADDITIONAL SESSIONS JUDGE

IN THE COURT OF THE ADDITIONAL SESSIONS JUDGE (FTC), =BAJALI.
(CRIMINAL APPELLATE JURISDICTION)

Present : Smti R. Gogoi.
Addl. Sessions Judge, (FTC), Bajali.

Criminal Appeal No. 27/ 2013.
U/S 374 of Cr.P.C.


Mukut Sonari …… … . . Appellant.
Versus
State of Assam …….. Respondent.
For the Appellant : Mr. R. Das, ld. Advocate.
For the Respondent : Mr. M.U. Ahmed, ld. Addl. P.P.

Date of hearing : 23.04.2014
Date of Judgment : 21.05.2014

J U D G M E N T

This appeal is directed against the judgment and order of conviction and sentence dated 28.06.2013, passed by the learned Sub-Divisional Judicial Magistrate (M), Bajali, in connection with G.R. Case No. 734/2007, whereby the appellant Mukut Sonari has been convicted under section 447/325 of the IPC directed to pay a sum of Rs. 25,000/- (Rupees twenty five thousand) only as compensation to the injured victim under section 5 of the Probation of Offenders Act, 1958.

Briefly stated, the facts of the prosecution case is that on 25.11.2006 at about 10 pm, while Tutun Sonari, a resident of Bhawanipur Puahati village, under the jurisdiction of Barpeta police station was busy in cooking in his kitchen, suddenly he heard pelting stones in his house and hearing the sound when the informant came out of his house, and tried to find out the person who was responsible for pelting stones by lighting his torch light, the accused persons attacked him by means of bamboo lathies as a result of such sudden attack the informant sustained injuries on his person and his two teeth were extracted.

Contd...P/-2-

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The informant raised hue and cry and hearing his voice the neoghbours of the said area came to the place of occurrence and rescued him from the accused persons namely Mukut Sonari and Dhanada Sonari. The informant also alleged that the accused persons snatched away one gold ring from his finger. The injured was immediately shifted to the hospital for his treatment. In connection with the incident an FIR was lodged before the police station and the police on the basis of the said FIR started investigation and on completion, the charge sheet was submitted against the accused person Mukut Sonari u/s 447/325 I.P.C. for his trial.

Having receipt of the summons, when the accused person appeared before the Court of learned Sub-Divisional Judicial Magistrate (M), Bajali, the copies of the relevant documents were furnished to him. The learned Trial Court finding materials under section 447/325 IPC to proceed against the accused person, framed the charge under said section of law. Accordingly particulars of the offence were read over and explained to which the accused pleaded not guilty and claimed trial.

During trial prosecution examined as many as 6 (six) witnesses including the Investigating Officer and took the aid of FIR, Medical Report, seizure list and the charge sheet. The statement of the accused was recorded U/S 313 Cr.P.C. in which the accused /appellant denied that he had committed any offence as alleged and claimed that he is innocent. The defence case was that of total denial. In support of the plea of denial the defence examined none. The Learned trial court, after hearing argument from both sides, i.e. prosecution and defence and perusal of records as well as appreciating the evidence, has passed the impugned judgment and order, convicting and sentencing the accused/ appellant as aforesaid.
On being aggrieved with the aforesaid judgment and order, the accused/

Contd...P/-3-

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appellant has preferred this appeal. I have perused the memorandum of appeal, the impugned judgment and also the records of the G.R. case No.734/2007. It appears from the record that the appellant in the memo of appeal have contended that (i) that the learned Trial Court has committed grave error both in law as well as in fact while passing the impugned judgment and order dated 28.06.2013 ; (ii) for that the impugned Judgment & Order is palpably illegal and irregular and void in the eye of law and the learned Court below misconceived the facts and evidence of the case and arrived at erroneous findings ; (iii) for that the learned trial Court failed to evaluate the evidence on record and passed the Judgment and order against the appellant; (iv) for that the witnesses of the prosecution side are co-related witnesses and interested witnesses and they are the hearsay witnesses as such their evidence cannot be considered as reliable and in view of that matter the impugned Judgment and order is liable to be set aside; (v) for that to attract the section 325 of the IPC examination of the Doctor is necessary but the prosecution has failed to examine this material witness so non-examination of this material witness is fatal to the prosecution case. (iv) for that there was delay in lodging the FIR as the case record reveals that the alleged incident took place on 25.11.2006 whereas the FIR was lodged on 05.05.2007 after a gap of five months and the delay of lodging of the same has not been properly explained and in view of the matter, the impugned Judgment and Order is not sustainable in the eye of law. Hence the accused appellant has prayed to set aside the impugned order and conviction passed against him by the learned Court below.

I have heard the learned Addl. P.P. appearing for the State but the learned counsel for the appellant did not appear at the time of hearing of the appeal as such I could not hear him on the point raised in the memo of appeal. Even then I opt to dispose of the appeal on merit. The learned Addl. P.P. supporting the findings of the learned Trial court

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submitted that the prosecution witnesses proved the case by adducing corroborative evidence and no illegality or impropriety has been caused by the learned Trial Court in convicting the accused-appellant and hence the judgment and order of conviction and sentence passed by the learned Trial Court do not warrant any interference of this appellate Court.

I have given my anxious thoughts and consideration of the learned Addl. P.P. advanced in the impugned judgment of the respective case and in that context, I have analysed the evidence on record. In the above circumstances the point for determination in the instant case will be whether the impugned judgment and sentence passed by the learned trial Court under Section 447/325 IPC is sustainable in law.

I have carefully perused the entire case record. Now let me ascertain as to whether the accused-appellant is guilty for the offence punishable under section 447 IPC since there is an allegation that the accused person committed an offence of criminal trespass by entering in to the house of the informant. Section 441 IPC defines criminal trespass. “441. Criminal trespass- Whoever enters into or upon property in possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or having lawfully entered into or upon such property, unlawfully remains there with intent thereby intimidate, insult of annoy any such person or with intent to commit an offence, is said to commit “criminal trespass.” Keeping in view of the above settled principle of law, now let me appreciate the testimony of the witnesses. According to PW1 Tutun Sonari, who is the injured as well as the informant of this case, on the day of incident i.e. on 25.11.2006 at about 10-00 pm while he was cooking in his house suddenly he heard the sound of pelting stone on his door and hearing the sound, he came out of his house along with a torch and tried to find out the person, then somebody assaulted

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him with a lathi on his waist as a result of which he fell down on the ground, then he could identify the person who assaulted him and it was accused person namely Mukut Sonari. This witness further deposed that as a result of such assault two of his teeth got extracted and there was profuse bleeding on his person. He further deposed that at the time of occurrence Kamaleswar Deka, Gunajit Sonari, Dharmendra Sonari and Monoranjan Baishya arrived at the spot and shifted him to Bhawanipur P.H.C. for his treatment. In connection with the incident he lodged an FIR before the police station. PW2 Kamaleswar Deka deposed that about 6 years ago at about 9-30 pm, hearing hue and cry, he came out of his house and saw Tutan Sonari was lying on his courtyard with injuries on his person and on being asked the injured told him that it was the accused who assaulted the injured Tutun. In the meantime Dharmendra arrived at the spot and they shifted the injured to the P.H.C. for his treatment. Corroborating the testimony of the PW2, PW3 Dharmendra Das deposed that on the day of incident about 6 years back at about 9-30 pm, hearing scream of the PW1, he came out of his house and saw injury on the mouth of Tutun Sonari. He saw two teeth of Tutan were extracted in the said incident and there was profuse bleeding. PW4 Monoranja Baishya is not an eye witness to the incident. This witness escorted the injured to the hospital who sustained injuries on his person and his teeth were extracted and the injured told him that it was the accused who caused injuries on his person. He further admitted he did not see who assaulted the injured person. PW5 Gunajit Sonari is also not an eye witness to the alleged occurrence. According to him on the day of incident, having come to know about the incident, he came to the house of Tutun Sonari and saw profuse bleeding on the mouth of Tutun and on query, the injured told him that accused Mukut Sonari assaulted him and extracted two teeth. Accordingly he accompanied by other persons made arrangement for treatment of the injured

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person and shifted him to hospital.

PW6 Sri Mohendra Saikia is the Investigating Officer of this case and he deposed that on 06.05.2007 while he was working at Bhawanipur out post as I/C, informant Tutun Sonarii lodged an FIR before the said out post and after registering the same as G.D. Entry No. 87 dated 6.5.2007 forwarded the said FIR to Barpeta police station for registering a case and after its registration, he was given the charge of the investigation and during the investigation he visited the place of occurrence, prepared the sketch amp, recorded the statements of the witnesses, arrested the accused and also released him on bail. On completion of the investigation of the case he handed over the case diary to the O/C of the said police station who submitted the charge sheet against the accused person under section 447/325 of the IPC. In cross examination this witness deposed that the place of occurrence is the joint property of the accused, informant and their mother but the rooms were separate.

It is pertinent to mention here that to prove the injuries sustained by injured Tutun Sonari, the prosecution has failed to examine the Doctor, who treated the injured on 25.11.2006. So, the defence did not get any chance to cross examine this material witness. However on perusal of the medical report available with the record it transpires that the injured was examined by the Doctor on 25.11.2006 at 12-30 AM and on examination the Doctor found bleeding from the mouth, abrasion injury to angle of left eye, injury in upper mouth and one teeth extracted. The Doctor opined that the injury sustained is grievous in nature and caused by blunt weapon and the age of injury before one hour. Thus it appears from the medical report that the injured was treated by the Doctor immediately after the incident. However it is evident that the Doctor did not examine the injured on police requisition and there is no indication in the medical report as to who identified the injured

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prior to his examination. These lacunas cannot be ignored to prove such type of serious cases.

On a careful scrutiny of the evidence of the prosecution it appears that there are some discrepancies in the evidence of the prosecution witnesses so far the commission of offence of criminal trespass is concerned. It is an admitted position that only the informant deposed that the alleged incident took place on his courtyard and the other witnesses also found the injured/informant on the said court yard but the record reveals that the place of occurrence is the joint property of the family members of the informant i.e. the accused, informant and their mother are the joint owners of the said property. This being so, the occurrence if any occurred in the courtyard of the informant and if the accused caused the same, it cannot be said that the accused had committed criminal trespass within the ambit of section 447 of the I.P.C.

It is seen that injured Tutun Sonari has deposed that it was the accused who assaulted him on the fateful night and extracted his two teeth. But the witnesses examined by the prosecution have never supported this contention and it appears that they arrived at the spot only hearing the scream of the PW1 and they did not notice the accused at the place of occurrence so, there is no scope on the part of the witnesses to see the person who caused injuries on the person of injured Tutan Sonari. Apart from that it appears to me there was delay in lodging the FIR. The case record shows that the alleged occurrence took place on 25.11.2006 whereas the FIR was lodged on 05.05.2007 after a gap of five months and the informant has explained that at the instigation of the villagers he lodged the FIR. What crystallizes is that initially the informant was reluctant to go to the police station and he was not interested to lodge any case in connection of the incident if any occurred on the night of 25.11.2006. But the reason shown in the FIR cannot be accepted as trustworthy and

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believable and sufficient. Though mere delay in lodging of the report/FIR may not by itself be fatal to the case of the prosecution, but the delay has to be considered in the background of the facts and circumstances in each case and is a matter of appreciation of evidence by the court of fact. This being so, there is nothing in the record to come to a conclusion as to what prevented the informant to lodge the FIR before the police station immediately after the occurrence. This being so, I find force in the submission of the learned counsel for the appellant. It is true that the paramount duty of the Court is to ensure prevention of miscarriage of justice which may arise from acquittal of guilty which is not less than the conviction of the innocent.

Keeping in view of the above discussion, I am of the opinion that the prosecution witnesses cannot be regarded as reliable and trustworthy. Considering the entirety of the factual position, as revealed on the appreciation of the evidence of the witnesses, relied upon by the learned Trial Court, is grossly inadequate and wholly unsafe to place reliance upon to found conviction of the accused appellant. In the light of such a nature of evidence, the accused deserves benefit of doubt and conviction under section 447/325 IPC is unlawful and unjustified. In view of the above, I find that the learned trial Court could have therefore, given the accused/appellant at least, benefit of doubt. This being so, the conviction of the accused-appellant and the sentence passed against him, cannot, therefore, be sustained.

O R D E R

This appeal succeeds. The impugned judgment and order, dated 28.06.2013 passed by the learned Sub-Divisional Judicial Magistrate (M), Bajali, in connection with G.R. Case No. 734/2007 against the accused appellant namely Mukut Sonari stands set aside. The accused-appellant Mukut Sonari is held not

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not guilty of the offence under section 447/325 IPC and he is acquitted of the same under benefit of doubt and set him at liberty forthwith. The bail-bond submitted on his behalf stands cancelled and his surety stands discharged.

Send down the records of the G.R. case No. 734/2007 to the learned Court below along with a copy of judgment.

The appeal is accordingly disposed of on this 21st day of May, 2014 under my hand and seal of this Court at Barpeta.

Dictated and corrected by me

Sd/- Add. Sessions Judge, Bajali.

Sd/- ( Smti R. Gogoi.)
Addl. Sessions Judge, (FTC),
Circuit Court, Bajali, Pathsala.



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