ABDUL KAYYUM Vs. STATE OF ASSAM

JUDGEMENT

(1.) This appeal has been preferred against the judgment and order dated 28.4.04 rendered by the learned Ad-hoc Additional Sessions Judge, Hojai, Sankardev Nagar in GR Case No. 793/98 convicting all the appellants under Sections 147/148/447/448/427 IPC and sentencing each of them to pay a fine of Rs. 500/-, in default R. I. for one month under Section 147 IPC, fine of Rs. 1000/-, in default R. I. for 3 months under Section 148 IPC fine of Rs. 200/-, in default R. I. for 15 days under Section 447 IPC fine of Rs. 1000/-, in default R. I. for 3 months under Section 448 and to suffer R. I. for 3 months and fine of Rs. 1000/-, in default R. I. for one month under Section 427 IPC. The appellants No. 1 to 8 were also convicted under Section 380 IPC and sentenced each of them to undergo R. I. for 3 years and to pay fine of Rs. 1000/- in default R. I. for 3 months. The brief facts of the prosecution case are that on 18.10.98 at about 9 A. M an Ejahar was lodged by one Ismail Ali alleging that a group of 47 persons armed with deadly weapons demolished the house of said Ismail Ali and looted away all the household articles from his house on 17.10.98 at 10/10.30 P. M. The police on receipt of the Ejahar registered a case being Doboka P. S. Case No. 92/98 U/S 147/148/149/448/380/427/506 IPC which gave rise to GR Case No. 793/98. As many as 47 persons were named as accused persons in the FIR. Police, on completion of investigation submitted chargesheet against 35 persons. The learned Sessions Judge, Nagaon by an order dated 12.6.2002 made over the case to the court of learned Ad-hoc Addl. Sessions Judge, Hojai, who on receipt of the records and on consideration of materials discharged 2 of the accused persons of the charges and framed charge against 33 accused under the aforesaid sections of IPC. The accused persons pleaded not guilty and claimed to stand trial. Accordingly, the prosecution, in order to establish the charge, examined as many as 10 witnesses including the I. O. Defence examined no witness. On the basis of the evidence on record and upon hearing the learned counsel for the parties, the learned trial court acquitted 12 and convicted and sentenced 21 accused persons as idicated earlier.

(2.) I have heard Mr. H. R. A. Choudhuy, learned Senior counsel assisted by Mr. F. U. Bhuiyan, learned counsel for the convict/ appellants and Mr. K. Munir, learned Addl. P. P, Assam for the State-respondent.

(3.) Mr. Choudhury, learned Senior counsel submits that the prosecution did not come with true version of the case inasmuch as the FIR was lodged on 18.10.98 at 9.00 A. M stating that the occurrence took place on 18.10.98 at 2.30 A. M. (i. e. in the midnight on 17.10.98) but at the same time evidence was adduced before the court by the informant P. W-1 stating that the occurrence took place at 10/1030 P. M on 17.10.98. It means that the informant was not sure regarding the actual time of the occurrence which casts great doubt regarding occurrence of the alleged incident. Again, it has been revealed from the evidence of the informant (PW-1) that before lodging the said FIR, the Officer-In- Charge, Doboka P. S. was informed and the said O. C appeared at the place of occurrence but the informant concealed the said earlier first information and as such the present FIR is hit by Section 161 Cr. P. C. Further, the learned Sr. Counsel submits that as per the evidence of the informant at the time of filing the present FIR (Ext. 1) he did not give the names of the accused persons nor did he furnish the list of stolen articles. The list of accused persons was furnished later on and the list of stolen articles was furnished after the goods were allegedly seized by police and as such right from filing of the FIR, the prosecution played hide and seek game which has certainly shaken the prosecution case very badly. Further submission of the learned Senior counsel for the appellants is that the learned trial court wrongly framed the charges mentioning that the incident took place on 18.10.98 at 2.30 A. M. but from the evidence of P. W-1 and other witnesses, it has clearly been revealed that the incident took place on 17.10.98 at 10/10 1/2 P. M. and as such the incorrect and wrong mentioning of time at the time of framing the charges vitiated the whole trial for the simple reason that the charges were not properly explained to the accused persons and they were denied of chance to put up a case that no incident took place on 18.10.08 at 2.30 AM, which is clearly against the mandatory provisions of Section 212 Cr. P. C. Last of all the learned Senior counsel submits that the appellants were not the members of any unlawful assembly and they did not participate in the alleged act of violence and there is no reliable evidence of any independent witness supporting the prosecution and as such, the convict appellants are entitled to acquittal.