Judgment and Order [Cav]
1. Heard Mr. P. Bora, learned counsel for the appellant and also Mr. B. J. Dutta, learned counsel for the respondent.
2. This appeal is directed against the judgment and order dated 20.8.2005 passed by the learned Sessions Judge, Sivasagar in Criminal Appeal Case No. 2(1)/2004 dismissing the appeal upholding the judgment and order dated 30.12.2003, passed by the learned SDJM, Charaideo, Sonari in G.R. Case No. 405/1994 convicting the petitioner U/S 392 IPC and sentencing him to undergo rigorous imprisonment for one year and fine of Rs. 3000/- in default, furher rigorous imprisonment for another three months.
3. The prosecution story in brief is that one Khagendra Prasad Bharali, the Manager of Bortiman Tea Estate lodged an written ejahar, stating interalia that on 20.8.1994, at about 11.45 AM while there employee W.B. Swear, Deputy Manager of the garden, and other employee Shri Bulbul Shyam and Deep Singh after taking garden remittance of Rs. 2,31,000/- keeping in a VIP brief case from U.B.I. Sapekati Branch proceeded towards Bartiman Tea Estate on Gypsy Car bearing No. AME-6855, four miscreants obstructed their car near Saphekatai Bazar and thereafter the miscreant hijacked the card towards Rajgarh Naharkatia Road and thereafter they took away the VIP brief case where the money was kept and accordingly a case under Section 392 IPC was registered.
4. On completion of the investigation, the police submitted charge sheet before the learned SDJM, Charaideo, Sonari against the appellant along with one Dipen Saikia and Bipin Chowdang under Section 392 IPC and on the basis of the police report the accused Dipen Saikia and Bipin Chowdang was declared absconder.
5. The learned SDJM, Sonari, on consideration of case records and relevant documents framed charge under Section 392 IPC against the petitioner, the charge was read over and explained to which the petitioner pleaded not guilty and claim to be tried.
6. During the course of trial, the prosecution has examined 5 witnesses in order to bring home the charge leveled against the petitioner. The defense plea is total denial. According to the defense plea the appellant is not in any way connected with the aforesaid offence, but he was falsely implicated merely on suspicion.
7. On conclusion of trial and after recording the statement under Section 313 CrPC, the learned SDJM, Charaideo, convicted the appellant under Section 392 IPC and sentence him to undergo R.I. for one year with a fine of Rs. 3000/- and in default undergo further RI for another three months.
8. The aforesaid order of conviction has been challenged on the ground that the learned Court has erred in law in appreciating the evidence and has relied upon the evidence of PW-2 and PW-3 without any corroboration from any independent witness. The reliance of the Court upon the findings of TIP is also challenged on the ground that the said report/TIP was not duly proved by examining the Magistrate, who conducted the TIP. Non-examination of other vital witnesses like Gunabhi Chutia and Nomal Chutia at the instance of which some articles was recovered, is also stated to be fatal. Non-recovery of any stolen article from the possession of the accused/appellant is another aspect which leans in favour of the accused/appellant, according to the appellant.
9. The learned counsel for the appellant has confined his argument referring to the grounds of appeal mentioned above and it has been urged that even if the court is not inclined to interfere with the order of conviction then the matter of appellant may be dealt in lenience in view of the old pendency of the matter since 1994.
10. Also heard the learned counsel for the State respondent, who has advanced his argument narrating the facts and circumstances of the case and it has been urged that in the given circumstance there can be no any other independent witness and there is nothing to disbelieve the evidence of PW-2 and PW-3, which is also very much supported by the I.O./P.W.5.
11. Considered the rival submissions made by the learned counsel for both the parties and materials on record. It is to be noted that the ejahar was filed immediately after the occurrence and the evidence on record has firmly established that the day of occurrence while the PW-2 and PW-3 along with another employee of the aforesaid Tea Garden was returning from UBI Sapekati Branch by the garden vehicle driven by PW-2 with an amount of Rs. 2,31,000/- withdrawing from the Bank for labour payment of the garden employees. Four miscreants stopped their vehicle on the way and hijacked the vehicle from the road and thereafter by taking the aforesaid money which was kept in a VIP briefcase, ran away from the vehicle. During the course of investigation though the cash money could not be recovered but the VIP briefcase was recovered from one Gunabhi Chutia of the village chelleng through Ext-2, on identification of the said briefcase. On the basis of statement of one witness, Nomal Chutia (which, however, cannot be examined), the accused Niranjan Hazarika was apprehended and a TIP was conducted on 26.9.2014 at the court premises infront of the Judicial Magistrate, 1st Class as per procedure and the two witnesses identified said Niranjan Hazarika (appellant herein) as a miscreants at the time of commission of offence in the said TIP.
12. It is found from the evidence on record that the PW-2 and PW-3 was the person inside the vehicle while at the time of commission of the offence. PW-2 has narrated all the incidents as to how four miscreants stopped their vehicle on the way and all of them forcefully occupied the seat of the vehicle and one of the miscreants run the vehicle himself. He was seated on the backside of the vehicle so he could not perhaps properly identify the miscreants. But, the PW-3 who happens to sit nearby the miscreants beside the driving seat and the vehicle was running for one hour altogether after such hijacking of vehicle, so he has the occasion to observe the accused closely, for which, he identified the present appellant. In the given circumstances, the evidence of PW-3 cannot be disbelieved. His evidence is inspiring confidence and there is no reason whatsoever on their part for false implication of the appellant.
13. On the other hand, though the officer who conducted the TIP has not examined by the prosecution, but the PW-3 is very much confident about the identification of the present appellant and he has duly testified the fact that the present appellant was arrayed in the raw while conducting TIP and he duly identified him in presence of the Magistrate concerned. In lengthy cross-examination, he has consistently replied that no police personnel were present at the time when the TIP was held nor any other irregularly which may vitiate the TIP. Merely because non-examination of the Magistrate, the evidence of PW-3 and the authenticity of the TIP cannot be denied.
14. Similarly, non-production of seized article is not always fatal as the relevant facts and other circumstances has been firmly proved by the prosecution which raise no any doubt about the commission of offence leaving aside the fact that one Nomal Chutia was not examined by prosecution. The clinching evidence of PW-2, PW-3 and supported by PW-5 is enough to hold the complicity of the accused with the offence alleged. There appears no any illegality or irregularity while arriving at the guilt of accused by the courts below. The identification of the accused appellant with the offence alleged has been proved beyond all reasonable doubt and there is nothing to interfere with the order of conviction so rendered by the court below. However, considering the long pendency of the matter since 1994 till 2016 and the litigation faced by the appellant with mental agony, the sentence period is reduced to the period which has already undergone by the appellant while in course of investigation and trial.
However, the fine amount is enhanced to Rs. 5,000/- and the appellant is directed to deposit the amount before the Trial Court. The said amount, if realized to be deposited in District Legal Service Authority of concerned District.
15. With the above observation and direction, the criminal revision petition is disposed of.
16. Return the LCR along with a copy of this judgment and order immediately.