Allowed

Shri Fedoi Miah v. the State of Assam

Gauhati HC9 Feb 2018Crl.Rev.P./176/2009

Case brief

AI extract

What is this about?

In a criminal revision, the Gauhati High Court examined the conviction of the petitioner for theft. Finding no eyewitness presence but accepted recovered bullock evidence, the court quashed the conviction under S. 379 IPC and substituted it with conviction under S. 411 IPC, imposing a fine of Rs. 5,000 after considering the time elapsed.

What did the court decide?

Conviction under Section 379 IPC set aside; convicted under Section 411 IPC and sentenced to fine of Rs. 5000/-. Auto-returned LCR.

Shri Fedoi Miah Vs the State of Assam — Cheating and Forgery | Gauhati HC (2018)

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GAHC010004702009

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)

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Criminal Revision Petition No. 176 of 2009

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Shri Fedoi Miah, Son of late Arman Ali, R/o Village- Pangram, Part-2, P.S. Udharbond, District- Cachar, Assam. ……… Petitioner -Versus- State of Assam ……Respondent BEFORE

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HON’BLE MRS. JUSTICE RUMI KUMARI PHUKAN

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For the Petitioner : None For the respondent : Mr. B. Sarma, Advocate Date of hearing : 9.2.2018 and Judgment

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JUDGMENT & ORDER (Oral)

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This revision is preferred challenging the legality and validity of the order in criminal appeal no.10/08, passed by the learned Addl. Sessions Judge, FTC Cachar , Silchar whereby the learned appellate Court has affirmed the order passed by the trial Court in G.R.Case No.730/96, wherein the accused petitioner has been convicted under Section 379 IPC and sentence to suffer rigorous imprisonment for four months.

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So far as the prosecution case is concerned, a bullock of the informant Md. Tamizur Rahman was stolen from his field as on 28.3.1996 and 4.4.1996 at 10.30 pm he found the bullock with one Abdul Karim on the road and on being asked said Abdul Karim informed him that one Fedoi Mia handed over the bullock to him for taking it to silchar market. Then it was learnt that said Fedoi Mia along with one Atuwa Orang committed theft of the bullock and has engaged the said person Abdul Karim to carry the bullock to the market for the purpose of selling. Thus after recovery of the bullock an FIR was lodged by the said informant and the bullock was seized and handed over to the said informant. After due investigation chargesheet was submitted against the accused person Fedoi Mia under Section 379/411 IPC, other accused Atuwa Orang died.

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Accused Fedoi Mia was charged U/S 379 IPC and he denied the charge. In order to bring home the charge prosecution examined four witnesses and defence examined none. The plea of defence is total denial. At the conclusion of the trial the accused petitioner found and held guilty U/S 379 and convicted him under said section of law, sentencing him to rigorous imprisonment for four months. The appeal so preferred by the accused petitioner was dismissed with the findings by the appellate Court that there was no infirmity in the said decision so arrived by the trial Court and it was held that in view of the evidence on record the learned trial Court has rightly convicted the accused petitioner. Challenging the aforesaid order the present petition has been preferred.

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None appears for the petitioner on call and in view of the old pendency of the matter which pertains to the year 2009, it was shown in the cause list that no such adjournment will be granted in such old pending matter. Despite above learned counsel for the petitioner did not turn up for hearing and accordingly the matter is taken up for decision in accordance with law. The learned addl. P.P. Mr. B. Sarma however made his submission to the effect that in

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view of the evidence on record the complicity of the accused petitioner is apparent, who committed the theft of the bullock of the informant and it was given to another person for selling purpose in the market. Accordingly it is aptly proved that the accused petitioner is the author of the crime.

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I have considered the argument of the learned counsel for the State as well as the evidence on record so as to appreciate whether the aforesaid finding of the appellate Court suffers from any infirmity and illegality.

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I have also carefully gone through the evidence on record. So far as the evidence of PW 1 Tamizur Rahman (informant) and PW 2 Azizur Rahman it reveals that they have stated about factum of theft of bullock in the house of PW 1 and after few days of the occurrence they could know that one person was taking the stolen bullock of the informant PW 1 by the side of Rani Dighi. Both of them immediately apprehend the said person namely Abdul Karim/PW 3 and on query he apprised that he has been engaged by the accused Fedoi Mia to take two bullocks stated to be belong to him, to Silchar Beranga cattle market at the wage of Rs.100/-. The person along with the bullock was taken to police station and police seized one bullock on his identification.

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The said Abdul Karim in his evidence as PW 3 has also admitted all about the facts that has been narrated by PW 1 and PW 2, that on being engaged by accused petitioner he took the bullock towards the cattle market on payment of wages of Rs.100/- and on the way to the market he was apprehended by the aforesaid witnesses and the police seized the bullocks. Obviously this witness has not conclusively stated that the cow belongs to the accused petitioner but has simply stated that he was engaged to take the same to the market. After seizure of the bullock from the PW 3 which was also delivered to the PW 1, it reflects that the present accused petitioner never prefer any claim upon the said seized bullock. He neither produce any document which show any ownership of the bullock. The evidence of PW 3 remains unrebutted during the cross-examination and nothing appears to disbelieve his testimony for false implication of the accused petitioner.

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The evidence of PW 4 simply assert about the theft of the bullock from the informant and he has no further knowledge. Although there is no eye witness to the occurrence but the ocular evidence clearly indicates that the stolen bullock of the informant was recovered from the PW 3 and after recovery PW 3 made a disclosure of all the facts as mentioned above.

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The learned appellate Court after careful scrutiny of the evidence on record and relying upon the evidence of PW 3, whose testimony was found convincing has come to a findings about the guilt of the accused and has affirmed the conviction awarded by the trial Court. This Court is also of the opinion that such a conclusion reached by the appellate Court is proper and it suffers from no any illegality to interfere with. However in the given circumstances while there was no eye witness to the occurrence and the stolen article was recovered after two days of the occurrence, the accused is liable to be convicted under Section 411 IPC instead of 379 IPC. Accordingly the accused is convicted under Section 411 IPC. As regards the sentence, it is considered that the matter relates to far back of 1996 which is more than 21 years and it can be inferred that the petitioner has already suffered a lot for such long litigation. Accordingly sentence is altered to fine only and the accused petitioner is to pay a fine of Rs.5000/- (five thousand) U/S 411 IPC, in default to suffer rigorous imprisonment for two months.

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The revision stands disposed as indicated above.

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Return the LCR.

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JUDGE

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Comparing Assistant

Shri Fedoi Miah v. the State of Assam

Case brief

What is this about?

What did the court decide?

Shri Fedoi Miah v. the State of Assam

Case brief

What is this about?

What did the court decide?

What the court decided

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