Karuna Kalita vs State Of Assam

Hitesh Kumar Sarma, J

1) This is a criminal revision petition, filed under Sections 397/401 of the Cr.PC, challenging the legality, propriety and correctness of the judgment and order, dated 19.2.2011, passed by the learned Sub-Divisional Judicial Magistrate (S) No. 1, Guwahati, in G.R. Case No. 7020/2007, convicting the accused-petitioner under Sections 147/447/323 IPC and sentencing him to undergo simple imprisonment for 1 month for offence under Section 147 IPC, a fine of Rs. 500/-, under Section 447 IPC, and a fine of Rs. 500/- under Section 323 IPC with a default clause as well as challenging the legality, propriety and correctness of the judgment and order, dated 17.8.2011, passed by the learned Additional Sessions Judge (FTC) No. 1, Kamrup, in Criminal Appeal No. 17/2011, dismissing the appeal and affirming the judgment and order passed by the learned court of Sub-Divisional Judicial Magistrate No. 1 aforesaid.

2) The fact leading to the case is that the accused-revision petitioner and 7 others were alleged to have assaulted the wife of the informant and his daughter, on 24.11.2007. At the relevant time of the occurrence, the informant was called by the accused persons and when he came out to the gate, they wanted him to come to the road. He suspected bad intention of the accused persons, and therefore, instead of coming out, about to lock the gate. At that time, his wife and daughter were assaulted.

3) The PW1, lodged the FIR with the Boko Police Station, which registered a case, being Boko PS Case No. 255/2007, under Sections 147/477/325 IPC, and after completion of the investigation of the case, the investigating officer laid the charge-sheet against the accused-revision petitioner and others.

4) After exhausting all required formalities by the learned trial court and on completion of the trial, the accused-revision petitioner along with 4 others were convicted and sentenced. The accused-revision petitioner was sentenced as indicated above.

5) In the appeal, the judgment of the learned trial court convicting and sentencing the accused-revision petitioner was upheld.

6) Heard Mr. Mahanta, learned senior counsel, assisted by Ms. P. Bhattacharya, learned counsel for the accused-revision petitioner. I have also heard Mr. R.J. Baruah, learned Additional Public Prosecutor for the state respondent.

7) I have examined the records of the learned trial court specifically the judgments of the learned trial court as well as the learned appellate court of Additional Sessions Judge, aforesaid. I have also perused the evidence on record.

8) In this case, the prosecution examined as many as 6 (six) witnesses and the defence examined 2 (two) witnesses. The prosecution witnesses were respectively cross-examined by the defence and the defence witnesses were cross-examined by the prosecution.

9) On examination of the evidence led by the witnesses, particularly the evidence of the 6 witnesses produced by the prosecution, it appears that none of the witnesses has specifically named the accused-revision petitioner as to his specific role in the commission of the alleged offences in the instant case. The FIR itself named 8 persons including the accused-revision petitioner. In their evidence, it has come out that Chandan, Sushil, and Babul, are involved in assaulting the wife and the minor daughter of the informant. From the evidence on record, it has specifically come out that the aforesaid 3 persons have assaulted the wife of the informant, i.e. PW3 and her daughter, CW1. On examination of the evidence of the CW1, who is one of the injured, it appears that she has also not implicated the accused-revision petitioner with the specific role in the commission of the alleged offence.

10) That being so, it appears to this court that this is a case of absence of evidence against the accused-revision petitioner, and therefore, the judgment rendered by the learned trial court and affirmed by the learned appellate court, as indicated above, is not based on evidence, and as such, incorrect and improper.

11) That being so, the accused-revision petitioner is acquitted from the charges against him due to absence of any evidence against him.

12) The judgments and orders of the learned trial court as well as the appellate court, are set aside.

13) Accordingly, the petition is allowed.

14) Send down the LCR along with a copy of this judgment.