Gauhati High Court
Ananta Sonowal vs State Of Assam on 18 July, 2012
Author: I.A. Ansari
Bench: I.A. Ansari
IN THE GAUHATI HIGH COURT
THE HIGH COURT OF ASSAM; NAGALAND; MEGHALAYA; MANIPUR;
MIZORAM; TRIPURA AND ARUNACHAL PRADESH
CRIMINAL REVISION NO. 175 OF 2004
SHRI ANANTA SONOWAL,
SON OF SHRI GOJEN SONOWAL,
RESIDENT OF VILLAGE & P.O. SALMARI,
P.S. GOGAMUKH, DIST. DHEMAJI,
ASSAM, (787 057).
----- PETITIONER
Versus
STATE OF ASSAM
----- OPP. PARTY
BEFORE
HON'BLE MR.JUSTICE I.A. ANSARI
Advocates for the petitioners ::
Z Alam, Amicus Curiae Advocates for the opposite party ::
Mr. KA Mazumdar, Addl. P.P. Date of hearing & Judgment : 18th July, 2012 JUDGMENT & ORDER [O R A L ] By judgment and order, dated 10-01-2003, passed, in GR Case No. 138 of 1999, by the learned Additional Chief Judicial Magistrate, Dhemaji, the accused-petitioner, namely, Shri Ananta Sonowal, stood convicted under Section 386 IPC and was sentenced to suffer rigorous imprisonment for two years and pay fine of Rs. 5,000/- and, in default of payment of fine, suffer simple imprisonment for three months. Aggrieved by his conviction and the sentence passed against him, the convicted person preferred an appeal, which gave rise to Page No. 2 Criminal Appeal No. 6(1) of 2003. By judgment and order, dated 29- 01-2004, the learned Sessions Judge, Dhemaji, allowed the appeal, in part, inasmuch as the accused-petitioner's conviction, under Section 386 IPC, was not upheld, but he was held to be guilty of an offence punishable under Section 384 IPC and was convicted accordingly under Section 384 IPC and the sentence, which had been passed by the learned trial Court against the accused-petitioner under Section 386 IPC, was retained in the sense that the accused-petitioner was sentenced, for his conviction under Section 384 IPC, to suffer rigorous imprisonment for two years and pay fine of Rs. 5,000/- and, in default of payment of fine, suffer simple imprisonment for three months.
2. Aggrieved by the decision of the learned appellate Court, the accused-petitioner has put to challenge the same by way of this revision.
3. As none had appeared, on behalf of the accused-petitioner, Mr. Z Alam, learned counsel, was appointed as Amicus Curiae and he has been accordingly heard. Also heard Mr. KA Mazumdar, learned Additional Public Prosecutor, Assam.
4. The prosecution's case may, in brief, be set out thus: On 20-11- 1999. The accused-petitioner, namely, Ananta Sonowal, came to the house of PW2 (Shri Khirod Sonowal) and handed over to him a letter, whereby a demand for money had been raised. The said letter also included three printed leaflets and one receipt. On receiving the Criminal Revision No. 175 of 2004 Page 2 of 10 Page No. 3 letter with leaflets and receipt, as indicated hereinbefore, PW2 handed over the letter along with other materials to the police at Dhemaji Police Station. The police accordingly seized, vide a seizure list, which is Ext. 1 the said letter, the leaflets and the receipt issued by an organization named Jatiya Sampad Sangrakhyan Bahini. As had been mentioned in the said letter, the accused-petitioner, namely, Shri Ananta Sonowal, came after three days to the house of PW2 and demanded money and also asked him to go to the house of Lalit Saikia of Bebjia village on 23-11-1999 itself. This letter was also handed over to the police and the same was seized. Due to fear of his life, PW2 did go to the house of Lalit Saikia, but Lalit Saikia was not found in his house and, hence, PW2 came back to his house. Two days, thereafter, the accused-petitioner, Ananta Sonowal, once again, came to the house of PW2 at about 7.30 am and demanded Rs. 10,000/-, whereupon PW2 caught hold of the accused-petitioner co- villagers with the help of his co-villagers and, then, they handed over the accused-petitioner to the police at Dhemaji Police Station. While handing over the accused-petitioner, as mentioned hereinbefore, to the police, PW2 lodged a written Ejahar stating therein to the effect, inter alia, that on 20-11-2011, some unknown miscreants had raised demand for money and that when the accused came to obtain the money, on 24-11-2011, the informant, with the help of his co- villagers, had caught hold of the accused and handed him to the police. Based on the said Ejahar and treating the same as First Information Report, Dhemaji Police Station Case No. 138 of 1999 was Criminal Revision No. 175 of 2004 Page 3 of 10 Page No. 4 registered, under Section 386/34 IPC, against the present accused- petitioner. On completion of investigation, the police submitted charge-sheet against the accused-petitioner.
5. During trial, when a charge was framed, under Section 386 read with Section 34 IPC, against the accused-petitioner, he pleaded not guilty thereto.
6. In support of their case, prosecution examined altogether four witnesses including the Investigating Officer. The accused was, then, examined under Section 313 Cr.P.C. and, in his examination aforementioned, the accused denied that he had committed the offence, which was alleged to have been committed by him, the case of the defence being that of denial. No evidence was, however, adduced by the defence.
7. Having found the accused-petitioner guilty of the offence charged with under Section 386/34 IPC, the learned trial Court convicted him accordingly and passed sentence against him as mentioned above. Aggrieved by his conviction and the sentence passed against him, the accused-petitioner preferred an appeal, which was disposed of as already mentioned above. The accused- petitioner is, therefore, before this Court with the present revision.
8. While considering the present revision, it needs to be noted that there is concurrent findings of fact by the two Courts below, namely, the learned trial Court and the learned appellate Court. Unless, therefore, this Court comes to the conclusion that the finding of guilt reached by the learned Courts below, was perverse in the Criminal Revision No. 175 of 2004 Page 4 of 10 Page No. 5 sense that there was no evidence to support the finding and/or that the finding is based on no evidence or wholly against the weight of the evidence on record, the finding of guilt, which the learned Courts below have reached against the accused-petitioner, cannot be disturbed and or interfered.
9. Bearing in mind what is indicated above, when I turn to the evidence of PW2, who is the informant and also the victim, I notice that he has deposed that in the month of November, 1999, the accused-petitioner, namely, Ananta Sonowal, came to his house, delivered to him a letter, whereby the demand for money had been raised. The said letter, according to PW2, contained three printed leaflets and one receipt, issued by an organization called Jatiya Sampad Sangrakhan Bahini. PW2 has deposed that he handed over the said letter along with the leaflets and the receipt to the police and the police seized the same. PW2 has also deposed that after three days, the accused-petitioner, namely, Ananta Sonowal, came again and asked PW2 to go to the house of one Lalit Saikia of Bebejia village, on 23-11-1999, by handing over to him a letter whereby demand for money had been raised. Out of fear, PW2 went to the house of Lalit Saikia, but did not find him in his village and, hence, PW2 came back to his house. PW2 has further deposed that two days thereafter, the accused-petitioner, namely, Ananta Sonowal, once again, came to his house at about 7.30 am and demanded Rs. 10,000/- from him (PW2). In the meanwhile, however, according to the evidence of PW2, his co-villagers came and caught hold of the Criminal Revision No. 175 of 2004 Page 5 of 10 Page No. 6 accused and, then, they all handed over the accused petitioner to the police.
10. Though PW2 was put to cross-examination by defence, nothing was elicited from him to show that his evidence is unbelievable, unsafe or untrustworthy. In fact, there is no evidence of any animosity existing between PW2 and the accused-petitioner and there is no reason for PW2 to falsely implicate the accused- petitioner. The evidence of PW2 has, thus remained intact and unshaken.
11. Coupled with the above, PW1, who is also a co-villager of the PW2 and who claims to have know about the letter demanding money, which had been received by PW2, has deposed that when the accused came to the house of PW2, he was caught hold by the informant and his co-villagers and then the accused was handed over to the police. Nothing could be elicited by the defense from the cross-examination of PW1 either to show that his evidence cannot be believed.
12. Close on the heels of PW1, PW3 has deposed that when accused-petitioner, namely, Ananta Sonowal, went to the house of PW2 demanding money, he was intercepted by the villagers and was produced before the police and that these facts were reported to him by the wife of PW2.
13. In view of the fact that the wife of PW2 has not been examined as a witness, the evidence given by PW3 as to what PW2's wife had Criminal Revision No. 175 of 2004 Page 6 of 10 Page No. 7 reported to PW3 is nothing, but hearsay and I keep the same wholly excluded from the purview of my consideration.
14. Not withstanding the fact that the evidence of PW3 is kept excluded from the purview of this Court's consideration, what cannot be denied and disputed is that the evidence of PW2, having remained unshaken, in his cross-examination, is, in the context of the facts and circumstances of the present case, wholly believable.
15. Though it is true, as has been pointed out by Mr. Alam, learned Amicus Curiae, that PW2's co-villagers, who had allegedly caught hold of the accused, have not been examined as witnesses at the trial, the fact remains that it is not the number of witnesses, but the quality of evidence, which is material in a trial. Even if a solitary witness is believed, there is no impediment in finding conviction on the sole testimony of such a believable witness.
16. In the case at hand, the evidence of PW2 is, I find, wholly trustworthy and reliable. In such circumstances, there is no reason to disbelieve him and his evidence unquestionably proves that the accused-petitioner did come to his house thrice, in as much as the accused-petitioner, first, came to the house of the PW2 with a letter, whereby demand for money had been raised, the letter having been accompanied by some leaflets and a receipt, as mentioned above, and that the accused came again on the third day with another letter demanding money and asked PW2 to go and meet one Lalit Saikia of Bebejia village and though, out of fear, he(PW2) Criminal Revision No. 175 of 2004 Page 7 of 10 Page No. 8 did go to the house of Lalit Saikia, he did not find Lalit Saikia and came back home, but when two days thereafter, the accused came, once again, as mentioned above, to the house of PW2 demanding a sum of Rs. 10,000/-, he was caught hold of by PW2 with the help of his co-villagers. The learned appellate Court has correctly pointed out that the accused-petitioner, in the face of the evidence on record, has committed an offence, which is punishable under Section 384 read with Section 511 IPC because the accused did make an attempt to extort money from PW2 inasmuch as he intentionally put PW2 in fear of injury and thereby dishonestly made an attempt to induce PW2 to deliver money as indicated above.
17. Though the accused-petitioner was charged under Section 386 IPC and was convicted accordingly and there was no charge under Section 384 read with Section 511 IPC, the fact remains that the omission to frame a specific charge under Section 384 read with Section 511 IPC, did not really cause, in this facts and circumstances of the case at hand, any prejudice to the accused-petitioner inasmuch as the basic allegation of making an attempt to extort money remains from the inception of the trial till the end.
18. Situated thus, the conviction of the accused-petitioner, under Section 384 read with Section 511 IPC, cannot be interfered with.
19. Mr. Alam, learned Amicus Curiae is, however, correct in pointing out that under Section 511 IPC, the maximum punishment is half of the term of imprisonment provided for a given offence or with fine as may be provided for the offence or with both.
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20. In the case at hand, since an offence, under Section 384 IPC, is punishable by imprisonment for a term of three years of either description or with fine or with both, the accused-petitioner could not have been sentenced to rigorous imprisonment for two years by the learned trial Court and the sentence, so passed, could not have been upheld by the learned appellate Court in as much as the sentence of imprisonment could not have exceed a term of two years.
21. In the case at hand, the learned appellate Court has pointed out that demand for ransom has become order of the day and the demand for ransom, in the present case, was made in brought day light and, in such circumstances, no leniency should be shown. In the facts of the present case, I do not see any good reason to take a view different from what the learned Appellate Court has taken on this aspect of the case.
22. Considering, therefore, the matter in its entirety and in the interest of justice, while the conviction of the accused-petitioner, under Section 384 read with Section 511 IPC, is hereby upheld, his sentence is reduced from two years of rigorous imprisonment and fine of Rs. 5,000/- to a period of one year rigorous imprisonment with fine of Rs. 2,000/- and, in default, to suffer simple imprisonment for a period of two months.
23. With the above modification in the sentence, which was passed by the learned appellate Court, this revision shall stand disposed of.
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24. Let the Amicus Curiae be paid a sum of Rs. 5,000/- from the fund of the High Court legal Service Cell.
25. Send back the LCR with a copy of this judgment and order.
26. Before parting with this revision, it is hereby made clear that the accused-petitioner shall appear, within a period of one month from today, in the Court of the learned Chief Judicial Magistrate, Dhemaji, in order to serve out the sentence of imprisonment passed against him. In the event of his failure to do so, the learned Court below shall issue warrant of arrest and take such further steps as may be necessary so as to ensure that the accused-petitioner serve out the sentence, which has been passed against him.
JUDGE
Paul
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