Sri Naba Chutia and 2 Ors. Vs the State of Assam

2. The present criminal revision petition has been instituted assailing the judgment dated 21.11.2011 passed by the learned Sessions Judge, Dibrugarh in Crl. A. No. 8(2)/2011 and Crl. A. No. 9(2)/2011, dismissing the same and thereby, upholding the conviction of the petitioners, herein, by the learned Judicial Magistrate First Class, Dibrugarh vide judgment dated 07.04.2011, for the offence under Section 392 IPC and sentencing them to undergo Rigorous Imprisonment for 3 (three) years and to pay a fine of Rs.300/- each, in default, to undergo Simple Imprisonment for a period of 30 (thirty) days by each of the accused persons.

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3. The prosecution case in brief is that one Dipak Bhowal lodged an FIR on 29.05.2008 before the Khowang Police Station, inter-alia, alleging, therein, that on 29.05.2008 at about 9:15 PM, when he and one Pankaj Paul were going to Khowang from Dibrugarh, three youths came riding on a motorcycle and attacked them suddenly, snatching away one money bag, containing Rs.4,120/-, Driving License, Pan Card, one torch light, key, a mobile handset with Sim card, having No. 9435473946, one dot pen, Identity Card and one money bag, containing Rs.280/- and Rs. 850/- from the pocket of Pankj Paul.

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It was further brought on record in the said FIR that the complainant had come to know later that the boys were from a nearby village and their names were (i) Debojit Gogoi, (ii) Naba Chutia and (iii) Durva Kanta Gogoi.

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On receipt of the said FIR, police registered the same as Khowang P.S. Case No. 40/2008 under Section 392 IPC. On conclusion of the investigation in the matter, police laid a charge-sheet against the petitioners, herein, under Section 392 IPC.

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The learned Trial Court, thereafter, framed a charge under Section 392 IPC against all the petitioners, herein and they having pleaded not guilty and claimed to be tried, a trial ensued.

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During the trial, the prosecution examined 10 witnesses, including the Investigating Officer. Thereafter, the petitioners, herein, were examined under Section 313 Cr.P.C.

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On conclusion of the trial, the learned Trial Court vide judgment dated 07.04.2011, on appreciating the evidences coming on record, proceeded to convict the petitioners, herein, under Section 392 IPC and sentenced them, as noticed, hereinabove.

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The petitioners, being aggrieved, instituted two appeals, being Crl. A. No. 8(2)/2011 and Crl. A. No. 9(2)/2011 before the Court of learned Sessions Judge, Dibrugarh.

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Accordingly, the Appellate Court, on considering the submissions made by the petitioners in the light of the evidences coming on record during the trial, proceeded vide judgment dated 21.11.2011 to dismiss the said appeals, thereby, upholding the conviction and sentencing of the petitioners by the learned Trial Court.

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Being aggrieved, the petitioners have instituted the present proceedings before this Court on 31.01.2012.

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4. I have heard the learned counsels for the parties and also perused the materials available on record.

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5. The learned Trial Court vide judgment dated 07.04.2011, on appreciating the evidences coming on record, had drawn the following conclusions:

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“In this case, the alleged occurrence took place with the PW-1 and PW-2 and as such they are eye-witnesses. PW-1 identified all the three accused persons in Court and PW-2 identified two accused persons namely, Sri Debojit Gogoi and Sri Naba Chutia. On close scrutiny of evidence of PW-1 and PW-2, it is seen that there is no material contradictions in their testimonies. PW-1 and PW-2 have seen the accused persons twice i.e firstly at the place of occurrence and then near Boga Dhaba and

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identified them in the court. Further soon after the alleged occurrence, the ejahar was lodged and the same has been exhibited as Exhibit-1. Defence counsel gave a suggestion to these witnesses that no such occurrence as alleged took place to which PW-1 and PW-2 denied. It is pertinent to mention here that mere giving a suggestion doesn't create any shadow of doubt on the testimonies of these witnesses. Moreover no reasons has been shown by the defence as to why these persons deposed against the accused persons with whom they didn't have any previous enmity or interaction at any time prior, to that day. Account of incident as given by the PW-1 and PW-2 are found consistent and no material contradiction is seen in their testimonies. Minor discrepancies in the testimonies of witnesses don't whither away the credibility and trustworthiness of witnesses. Minor discrepancies may occur which are due to normal errors of observation, normal errors of memory due to lapse of time etc. The angle of vision, the mental picture captured by the witnesses may differ from person to person and the same may result in to some discrepancies here and there. Such minor discrepancies may always occur, howsoever, honest a witness may be. It is the material discrepancy which can only adversely affect the credibility and the veracity of the evidence of witness concerned. Some discrepancies, as found in the case in hand, are very much expected of a normal human being. Furthermore, one principle which has got a solid footing in law is that no particular number of witnesses are required to prove a particular fact; even the testimony of a single witness is sufficient but what is required in such case is that the deposition of such witness should inspire confidence and hardly leaves any iota of doubt to reach a particular decision. It is the quality of evidence, not the quantity of evidence which plays pivotal role in arriving at a particular decision.

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Then comes the question of seizure and non-examination of the owner and workers of Boga Dhaba. All the seizure witnesses examined in the court have identified their signatures on the seizure lists but they deposed that they don't know the contents. PW-10 deposed that he searched the house of the accused persons and made recovery. Now here the question is that how much the aforesaid fact affects the merits of this case? The offence of robbery is complete as soon as the accused

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persons wrongfully restrained PW-1 and PW-2 and snatched the articles from them as alleged. Subsequent recovery is corroborative evidence and it doesn't mean that if the recovery couldn't be proved, the evidence of PW-1 and PW- 2 will have no value in the eye of law, if their testimonies are otherwise trustworthy. In other words, it cannot be said that if there would have been no recovery, no offence of robbery had taken place.

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Secondly, it is the duty of the I/O to investigate a case and examine all the material witnesses but where the I/O omits to do the same, it reflects that the investigation done by the I/O was a perfunctory one but the Apex Court of India, on more occasions than one, opined that the perfunctory investigation by the I/O doesn't entitle the accused to acquittal if otherwise the available evidence on record inspire confidence. In the case in hand the depositions of the vital PWs couldn't be demolished by the defence by contradicting them with any previous statement made by them earlier.

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In the light of the aforesaid adumbration and appreciation of evidence in its entirety, I am of the opinion that the evidence of prosecution witnesses inspire confidence regarding the complicity of the accused persons in the offence as put forward by the prosecution and the testimonies of PW-1 and PW-2 stood the test of cross-examination and their testimonies remained wholly unshaken. Therefore I am of the unhesitant view that no further corroboration is necessary and the prosecution has succeeded in proving its case beyond reasonable doubt against the accused persons. And therefore the accused persons namely, Sri Debojit Gogoi, Sri Naba Chutia and Sri Durna Kt. Gogoi are held guilty u/s 392 IPC and convicted accordingly.”

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6. This Court has perused the conclusions drawn by the learned Trial Court and finds that the same has been so drawn basing on the evidences coming on record during the trial and no infirmity is found therein. Accordingly, the conviction of the petitioners, herein, by the learned Trial Court vide judgment dated 07.04.2011 would not mandate any interference.

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7. Having drawn the above conclusions, this Court has also examined the judgment dated 21.11.2011 passed by the learned Appellate Court.

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8. The learned Appellate Court, on a consideration of the evidences coming on record had proceeded to uphold the conviction of the petitioners, herein, under Section 392 IPC.

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9. This Court has perused the conclusions drawn by the learned Appellate Court in the matter and on such perusal finds that the conclusions so drawn are based on the evidences coming on record during the trial and no infirmity is found therein. Accordingly, this Court is of the considered view that the judgment dated 21.11.2011 passed by the Appellate Court would not mandate any interference.

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10. In view of the above conclusions reached by this Court, this Court finds that the conviction of the petitioners under Section 392 IPC would not mandate any interference.

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11. Having upheld the conviction of the petitioners, herein, this Court finds that the offence was committed in the matter by the petitioners, herein, on 29.05.2008. Thereafter, the petitioners, herein, were found to have been pursuing the matter before the learned Trial Court, thereafter, before the learned Appellate Court and presently, in the present criminal revision petition.

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12. Considering the long lapse of time occasioning since the date of commission of the offence by the petitioners, herein, and also noticing that the petitioners, herein, were not proceeded against for an offence of similar nature, either prior to commission of the offence involved in the present proceeding and/or during the pendency of the present proceeding against them and also noticing the fact that the petitioners, herein, have been litigating the matter initially before the learned Trial Court, thereafter, before the Appellate Court and presently, before this Court, this Court is of the considered view that the petitioners, herein, are entitled to be extended the benefit under the provisions of the Probation of Offenders Act, 1958. The said benefit being permissible to be granted by this Court in exercise of its Revisional jurisdiction, this Court extends the benefit under the Act of 1958 to the petitioners, herein.

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13. Accordingly, for the reasons recorded, hereinabove, the petitioners, herein, are given the benefit under the Act of 1958 and the sentences modified to the effect that instead of sending the petitioners to jail, they should be given the benefit under the provisions of the

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Probation of Offenders Act, 1958.

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As the sentencing with regard to the payment of fine having not been interfered with, the petitioners are required to deposit the fine.

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14. In view of the above discussion, it is directed that the petitioners, herein, shall file two sureties to the tune of Rs.20,000/- (Rupees Twenty Thousand), each, along with a personal bond before the learned Judicial Magistrate First Class, Dibrugarh and therein, individually undertake to the effect that each one of them shall maintain peace and good behaviour during the period of 1 (one) year from the date of filing of the bond. The aforesaid bond be filed by the petitioners within a period of 3 (three) months from the date of this order.

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15. The petitioners along with the filing of the bond, shall also deposit the fine amount individually, as directed by the learned Trial Court.

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16. With the above observations and directions, the present criminal revision petition stands disposed of.

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17. Send down the records of the case to the learned Trial Court along with a copy of this order for information and necessary action.

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JUDGE

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Sri Naba Chutia and 2 Ors. v. the State of Assam

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Sri Naba Chutia and 2 Ors. v. the State of Assam

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