Gauhati High Court
Md. Nawaz Ali And 5 Ors vs The State Of Assam on 1 June, 2020
Equivalent citations: AIRONLINE 2020 GAU 445
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GAHC010117572011
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Rev.P. 150/2011
1:MD. NAWAZ ALI and 5 ORS
S/O LT. KUDDUS ALI R/O DAKHIN MAKRA, P.S. BIJNI, DIST. CHIRANG,
2: MD HASMAT ALI
S/O LT. KHATEM ALI R/O FORMAISHALI P.S. BIJNI
DIST. CHARANG
3: MD FIRDUS ALI
S/O LT. KUDDUS ALI R/O FORMAISHALI P.S. BIJNI
DIST. CHARANG
4: MD CHAND MIA
S/O HATEM ALI R/O DAKHIN MAKRA
P.S. BIJNI
DIST. CHIRANG
5: MD HASEM ALI
S/O MD LUTFUR ALI R/O FORMAISHALI P.S. BIJNI
DIST. CHARANG
6: MD LUTFAR ALI
S/O MD RAIJUDDIN MONDAL R/O FORMAISHALI P.S. BIJNI
DIST
CHARANG
VERSUS
1:THE STATE OF ASSAM
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Advocate for the Petitioner : MS.M DAS
Advocate for the Respondent : PP, ASSAM
BEFORE
HONOURABLE MR. JUSTICE MIR ALFAZ ALI
ORDER
Date : 01-06-2020
1. None appeared for the revision petitioner. Heard Mr. D. Das, learned Addl. Public Prosecutor for the State/respondent.
2. The propriety, legality and correctness of the judgment and order passed by the learned Additional Sessions Judge (FTC), Bongaigaon in Sessions Case No. 28(B)/2009 has been put to challenge in this revision petition.
3. By the judgment impugned, the revision petitioners were convicted u/s 341/34, 323/34 IPC and 354/34 IPC and sentenced to simple imprisonment for one month u/s 341 IPC, rigorous imprisonment for six months u/s 323 IPC and rigorous imprisonment for one year u/s 354 IPC.
3. As per prosecution case, on 01/01/2010 at about 4 pm when the daughter and wife of the complainant were coming home from the Ballamguri bazaar, all the accused persons named in the complaint obstructed them, mounted assault on them and also attempted to commit rape. In the meantime, the villagers arrived at the place of occurrence and all the accused persons left the place. A meeting was held in the village to settle the matter. However, the village meeting could not settle the dispute and therefore, the complaint was lodged on 06/01/2010. Learned trial court framed charges against the petitioners Nawaj and Hasmat under section 341/376/34 IPC and charges against Firdus Ali, Chand Mia, Hasem Ali and Lutfar Ali were framed u/s 323/341/34 IPC.
4. Four witnesses were examined by the complainant and on conclusion of trial learned Magistrate held all the petitioners guilty u/s 323/341/354 IPC. It was observed by the two courts below, that though, a charge of attempt to rape u/s 376/511 IPC was framed, materials on record fell short of proving the charge u/s 376/511 IPC, however, the Page No.# 3/4 evidence established an offence 354 IPC and therefore, all the petitioners were convicted u/s 354 IPC. Evidently no charge u/s 376/511 or 354 IPC was framed against the petitioners Firdus, Chand Mia, Hasem and Lutfur and Charges were framed against these four petitioners only u/s 323/341/34 IPC. When no charge u/s 376 read with Section 511 or 354 IPC was framed against the petitioners Firdus, Chand Mia, Hasem and Lutfur, their conviction u/s 354 IPC, in the facts and circumstances of the case, was uncalled for and improper. Therefore, in my considered view, the conviction and sentence of the petitioners Firdus Ali, Chand Mia, Hasem Ali and Lutfar Ali u/s 354 IPC was illegal and improper and deserves to be set aside.
5. It is the settled position that the revisional court is not supposed to re-appreciate the evidence or take a different view on the factual finding to substitute its own view for the view taken by both the courts below, unless the finding of fact is grossly illegal and perverse causing miscarriage of justice. On perusal of the record, I find that the learned trial court as well as the appellate court upon appreciation of evidence and upon consideration of all the facts and circumstances of the case held the petitioners guilty u/s 341/323 IPC and I find no reason to interfere with such findings of the learned trial court as well as the learned appellate court convicting the petitioners Firdus Ali, Chand Mia, Hasem Ali and Lutfar Ali u/s 341/323 IPC, inasmuch as, the findings appear to be reasonable and did not suffer from any perversity or impropriety. Therefore, the findings of the two courts below convicting the petitioners Firdus Ali, Chand Mia, Hasem Ali and Lutfar Ali u/s 341/323 IPC and the petitioners Nawaz Ali and Hasmat Ali u/s 354 IPC are upheld.
6. Having regard to the fact that the occurrence took place in the year 2010 and the petitioners have already suffered a lot because of protacted trial for last 10 years and the attending facts and circumstances, under which the offence was committed, I am of the considered view, that the petitioners deserve little compassion and relaxation in respect of sentence. Accordingly, the sentence of the petitioners Firdus Ali, Chand Mia, Hasem Ali and Lutfar Ali are reduced to fine only. All these four petitioners shall pay a fine of Rs. 1,000/- (Rupees one thousand) each under Sections 341/323 IPC, in default they shall undergo simple imprisonment for 1 (one) month.
7. Considering the fact that the offence u/s 354 IPC was committed prior to the criminal Page No.# 4/4 law amendment in 2013 and also taking note of the facts and circumstances of the case, sentence of Nawaz Ali and Hasmat Ali is also reduced to fine of Rs. 1,000/- (Rupees one thousand) each under section 354 IPC, in default to simple imprisonment for one months. They shall also pay a fine of Rs. 500/- (Rupees five hundred) each u/s 341 IPC, in default to simple imprisonment for 15 days.
8. With the above modification in the sentence the revision petition is partly allowed.
9. The petitioners are directed to appear before the learned trial court within three months and pay fine or serve out the default sentence.
10. Send back the record along with a copy of this order.
JUDGE Comparing Assistant