ABDUL LATIF ALIAS LATIF MIA Vs. KAJAL DAS

JUDGEMENT

(1.) When the case is called on, none; appears for the accused petitioners and also for the Opp. Party informant. I have heard Mr. Noor Mohammad, learned PP appearing for the Opp. Party No. 2 State of Assam.

(2.) This Criminal Revision petition is directed against the judgment and order dated 1.6.96 passed by the learned Sessions Judge, Karimganj in Criminal Revision No. 5(1)/95 remanding the case back for disposal on setting aside the judgment and order of acquittal dated 28.11.94 passed by the learned CJM, Karimganj in G.R. Case No. 357 of 1990 under Sections 147/448/427 IPC.

(3.) The prosecution case, in brief is that on 1.4.90 at about 10.00 A.M. accused Latif@ Latif Mia along with his labourers trespassed into the shop of the informant PW1, owner of Jyoti Electrical Works situated at Kanishail, Pamarkandi road and started demolishing the shop house. On being resisted by the informant, the accused persons threatened to assault him. On receipt of the FIR the police registered a case and after completion of the investigation submitted charge sheet against the accused persons under Sections 147/448/ 427 IPC. During trial, prosecution examined as many as six witnesses including the informant and the Investigating Police Officer. The defence adduced no evidence and three persons were examined as court witnesses. Learned Sessions Judge found that the learned Magistrate disbelieved the evidence of the informant PW.1 with observation that "PW.1 did not know the name of the father of the vendor Srimanti Jilai Bibi and he did not know the dag number, Khatian number, holding number and the boundaries of the disputed house". Learned Magistrate further observed that "this witness (PW. 1) could not say the name of the shop house situated on the northern side beyond the shop house of accused Abdul Latif. The learned Sessions Judge found that PW 1 has stated that to the continuous north of the place of occurrence, accused Abdul Latif was having his house, but PW. 1 could not say whose shop was situated to the north of the house of Abdul Latif. The learned Sessions Judge has observed that it is a case of criminal trespass into the shop house and mischief, and it is not a civil suit for declaration of any title of the informant over the disputed shop house and in such a case there is no necessity of proving the four boundaries, dag number, khatian number etc., and hence PW 1 signorance about the same docs not shatter his credibility inasmuch as the disputed shop house can be located easily by his evidence. Similarly, learned Magistrate disbelieved the sworn testimony of PW 2 Smti Jyotsna Das with observations that she did not know the father's name of the accused Lalif. did not know the Mouza. Pargana. dag number and patta number of the land on which the disputed shop was situated, did not know the length and breath of the disputed shop house, could not say who used what instruments to demolish the shop house. The evidence of PW3 remained unchallenged at least as regards demolition of northern wall of the shop house on the date and time of the occurrence. The trial court was wrong in discarding bis entire evidence. The trial court discarded the evidence of PW 4 observing that "this witness could not recognise who came to demolish the shop house". The learned Sessions Judge, however, found that this witness nowhere in his evidence, made a statement to that effect. Nor there is anything in his evidence to arrive at such a conclusion. The trial court misread the evidence of PW 4. The evidence of PW 5 was discarded by the trial court on the ground that he could not say who did what. Learned Sessions Judge observed that in such a riotous situation it was not possible for the witness to note the particular act of a particular accused and hence the reason ing given by the trial court for discarding evidence of PW 5. is not tenable.