IN THE COURT OF SUB-DIVISIONAL JUDICIAL MAGISTRATE (M),...
Transcript of IN THE COURT OF SUB-DIVISIONAL JUDICIAL MAGISTRATE (M),...
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Smt. Sutapa Bhusan,
SDJM (M), Titabar
G.R. Case No. 610/2017
IN THE COURT OF SUB-DIVISIONAL JUDICIAL MAGISTRATE (M), TITABAR
G.R. Case No. 610/2017
U/S 458/427/506-II/34 of I.P.C
State
-vs-
Sri Rinku Pratim Bora &
Sri Manoj Borah @ Junai …….…… Accused persons
Present: Smt. SutapaBhusan, A.J.S.
Sub-Divisional Judicial Magistrate (M),
Titabor, Jorhat.
For the Prosecution : Smti. Asfi Ahmed Hazarika, Ld. A.P.P. For the Defence : Mrs. Rita Devi, Ld. Advocate
Charge framed on : 28/05/2018
Date of Evidence : 28/08/2018, 05/10/2018, 31/10/2018, 12/12/2018, 26/04/2019
Statement of accused u/s 313 of Cr.P.C. recorded on : 17/05/2019
Date of Arguments : 13/06/2019
Judgment delivered on : 25/07/2019
JUDGMENT AND ORDER
1. The brief facts of this Prosecution case is that the Informant Sri Dulal Bora has
filed an ejahar on 26.11.2017 before I/C Jalukanibari Out Post stating that on
23.11.2017, at about 9:45 p.m., accused Rinku Bora along with other miscreants
assaulted him and Satenya Bora with iron rod restraining his bike on the road. On the
same day, i.e. on 23.11.2017, he lodged an ejahar at Rowriah Out Post. On the next
day, both the parties are asked to appear Rowriah Out Post and when he went there,
accused along with his elder brother Jonai Bora and others threatened him to
withdraw the case, but as he has not withdrawn the case. On 26.11.2017, at about
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Smt. Sutapa Bhusan,
SDJM (M), Titabar
G.R. Case No. 610/2017
12:10 a.m., accused Rinku Bora and Jonai Bora along with other miscreants entered
into their house and threatened him to kill and they asked him to come out from the
house. As he had not come out, accused persons threatened him to kill. Thereafter,
accused persons hit his Tata Zest vehicle bearing Registration No. AS03M9010 causing
damages. They also tried to set fire by pouring kerosene and also threatened him
again to withdraw the case. When neighbouring people gathered accused persons fled
away riding the motorcycles. Hence, this case.
2. FIR was lodged by the Informant before Jalukanibari Out Post, who made a
G.D. Entry vide No. 467 dated 26.11.2017 and forwarded it to O/C, Titabar Police
Station for registration of a case.
3. The O/C of Titabar Police Station received and registered the FIR as Titabar
P.S. Case No. 269/2017 under sections 458/427/506/149 of IPC dated 26.11.2017.
The Officer-in-Charge of Titabar P.S. had assigned Nogen Rajkhowa, A.S.I., to
investigate into the matter. I.O, on completion of investigation filed charge-sheet
against the accused Sri Rinku Pratim Bora and Sri Manoj Borah @ Junai under sections
458/427/506/34 of IPC.
4. The charge-sheet on being put up before my Ld. Predecessor, was accepted and
the case was kept in my file. Accordingly, summons was issued to the accused
persons.
5. On appearance of the accused persons, they were allowed to go on bail and
copies were furnished to them as per section 207 Cr. P.C. After hearing and on perusal
of the materials on record, formal charges under sections 458/427/506(II)/34 of IPC
were framed against the accused persons. The charges under sections
458/427/506(II)/34 of IPC were read over and explained to the accused persons to
which they pleaded not guilty and claimed to be tried.
6. During course of the trial, Prosecution examined seven witnesses in this case.
Thereafter, statement of the accused persons under section 313 of Cr. P.C. was
recorded. Their pleas are of complete denial. The accused persons have declined to
adduce any evidence.
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Smt. Sutapa Bhusan,
SDJM (M), Titabar
G.R. Case No. 610/2017
7. I have heard the arguments of the Ld. Counsels for both sides. I have also
carefully gone through the evidence adduced on record.
8. The Ld. Counsel for the accused persons would submit that the Prosecution has
failed to prove its case, hence the accused persons ought to be acquitted.
9. The points which arise for determination in this case are :-
I. Whether the accused persons, on 26.11.2017, at about 12:10
a.m., acting in pursuance of common intention, had committed lurking
house trespass after preparation for the arm which included being arm
with weapons and hence liable to be punished under sections 458/34 of
IPC?
II. Whether the accused persons, on the same date and time,
acting in pursuance of common intention, had caused damage to the
Tata Zest vehicle of the Informant bearing Registration No. AS-03M-
9010 and hence liable to be punished under sections 427/34 of IPC?
III. Whether the accused persons, on the same date and time,
acting in pursuance of common intention, had threatened to kill the
Informant and hence liable to be punished under sections 506(II)/34 of
IPC?
10. DISCUSSION, DECISION AND REASONS THEREOF :
Now let me discuss the materials on record and try to arrive at a definite
finding as regards the points for determination.
11. PW1, Sri Dulal Bora is the Informant of this case who deposed in his
evidence that the incident had happened on 23.11.2017, at about 9:10 P.M., wherein,
hewas returning home from Pokamura Bezgaon on an Avenger motorcycle, along with
his cousin Satyena Bora and as he reached the railway line, they were stopped by
Rinku Bora and he asked him where he was returning from and he told him that he
had visited a friend and then Rinku Bora punched him on his head and he fell down
from his bike and he asked him why he had beaten him and then around 4–5 other
unknown person came to the spot and they started to beat him and his cousin and
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SDJM (M), Titabar
G.R. Case No. 610/2017
they were hit with iron rods on their heads and other parts of their body and they
sustained crack wounds on their heads and there was profuse bleeding. Rinku Bora
had hit them with the iron rod and as they tried to run away from the spot, Rinku Bora
and the others pelted bricks at them, but they managed to escape from there and then
he filed this case at Rowriah Out Post. After filing of this case, Rinky Bora and others
had threatened him with bad consequences, unless he withdrew the case but he
refused. On 26.11.2017, at about 12 midnight, the accused Rinku Bora, Monoj Bora
along with 4-5 other unknown men came to his house on Scooties and bikes armed
with iron rods and other weapons and they broke his Tata Zest vehicle, bearing
Registration No. AS-03-M-9010, parked outside his house, inside a temporary garage
and they broke the front windshields and the rear glass of the car and they also hit his
car with the iron rods and his car was dented at various places. He did not come out of
the house and saw the accused from inside the house, damaging his car and they also
abused them, and threatened them. The accused persons also cut the bamboo walls of
their house. The accused - Rinku Bora, Monoj Bora and others abused his mother and
asked her to send him out, but she said that he was not present in the house and then
they asked her to come out and told her that they shall cut her instead and they
threatened his mother and told her that if they don’t withdraw the case, they shall
shoot them and kill them. He was present in his house alongwith his parents and
brother–Lalit Bora. The accused also took out a bottle of kerosene and threatened to
burn their house. His family members and the co–villagers came out and then the
accused persons fled away. The accused – Rinku, Manoj and others also cut the tin
roof of his garage. He filed this case, on the night of the incident at Jalukonibari
Outpost and the police had visited out house at night. He had to incur an expense of
more than Rs 100,000/- in repairing his car. They also had to spend about Rs.
15,000/- in repairing the damage done to their house. Pankaj Bora, Gaurav Bora,
Bitupon Bora, Dudu Bora and other neighbours had gathered on the spot. Exhibit – 1
is his Ejahar. Exhibit – 1 (1) is his signature. The Investigating Officer had seized his
Zest Car, along with the registration certificate, insurance certificate and a deed of
agreement between him and Santa Hazarika Dutta, from whom he had purchased the
car, with regard to the sale of the car and the car was later on handed over in his
Zimma by the I.O. Exhibit – 2 is the seizure list, wherein, Exhibit–2 (1) is his signature.
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SDJM (M), Titabar
G.R. Case No. 610/2017
Exhibit–3 is the Zimmanama. Exhibit–3(1) is his signature. His cousin and he was
treated at JMCH, Jorhat.
12. During cross-examination, PW1 stated that he has known the accused for the
last 7–8 years. He does not have any personal enmity with the accused. The Ejahar
was written by a friend of his, as per his dictation at his house, in the presence of the
police. There was no communication between him and the accused, after the incident,
till the filing of this case and they did not propose to compromise the matter. He was
inside his house at the time of incident. He did not see how many people had come.
He did not see the accused in his compound on the night of the incident. He denied
the suggestion that as he had filed a case against the accused earlier, he suspected
them to have broken his car and damaged his house and that the accused did not
enter their compound and damage his car and house and threaten them and that the
case has been filed purely on the basis of suspicion and that he has deposed falsely.
There has been no fight between them after the incident.
13. PW2, Sri Pankaj Bora deposed in his evidence that the incident had
happened in the month of November, 2017, in the midnight, wherein, he was inside
his house and he heard shouts and screams and he heard the sound of someone
hitting an object and he then came out of his house and saw 5-6 men escaping in
bikes and scootys and then he went to the house of the informant and he saw that the
front windshield of the car and the rear windshield of the Tata Zest car of the
Informant, bearing Registration No. AS-03-M-9010, was broken and the car was also
dented. He also saw that the bamboo walls of the house of the informant were broken
and the tin roof of the garage was also damaged. He had also seen a one litre bottle,
which was half filed with kerosene, near the walls of the house of the informant. He
was told by the informant and his family members that the accused – Rinku Bora and
Manoj Bora, along with other men had come to their house and damaged the car and
the house of the informant and they had threatened that the case filed against the
accused with regard to an earlier incident, filed at Rowriah Outpost, should be
withdrawn or else they shall face consequences. He had also heard from his house
that some men were shouting that the informant should come out. He had reached the
house of the Informant and He met the informant, his parents, brother and Khagen
Bora, Gaurav Bora, Pinku Changmai, who was a guest at the house of Khagen Bora,
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SDJM (M), Titabar
G.R. Case No. 610/2017
Kamal Bora, Pompy Bora, Nijora Bora and others had gathered on the spot. The Tata
Zest car of the informant was seized by the I.O. and later handed over in his zimma.
About 3–4 days, prior to the incident, the accused– Rinku Bora and others had beaten
the informant and his cousin – Satyena Bora, at Bezgaon with iron rods and they had
sustained crack wound on their heads. He had seen the injuries. He did not see the
incident and He was told about it by the informant.
14. During cross-examination, PW2 stated that he had heard about the first
incident. He did not see who had entered the compound of the informant and
damaged the car and the house. He did not meet any other eye witnesses. His house
is about 50 metres away from that of the informant. He does not know to whom the
kerosene bottle belonged. There has been no fight between the informant and the
accused later and there was no previous enmity between them, prior to the incidents.
15. PW3, Smt. Bonti Bora deposed in her evidence that the incident had
happened on 26/11/17, at about 12 midnight, wherein, were sleeping at that time and
they heard the sounds of cutting of the bamboo gates “jopona” and they also heard
the sound of someone hitting on the tin roof of their garage. They heard people
outside abusing his son calling him “sudurbhai” and asked him to come out and why
he had not withdrawn the case filed against them and that they shall cut his son and
even shoot him. They did not initially go out for house fearing for their lives when he
heard that the persons outside were breaking and damaging their Tata Zest vehicle,
parked in the garage, she peeped through the gaps of the thatched bamboo walls of
their house and saw the accused person Jonai Bora. On seeing her peeping and when
she asked them not to damage the car, the accused abused her by calling her “bonori”
and he asked him to come out and that he shall also cut her. All the glasses of the car,
including the front and rear windshield and the glasses on the sides were broken and
the car was damaged. The accused had also hit on the bamboo walls of their house,
the gate and the door with “daw” and cut the same. There were about five persons
who had come to their house and they kept on abusing and threatening them. He
could only identify the accused Jonai Bora. As there was a lot of hue and cry at that
time, their neighbours, which included –Khagen Bora, Kamal Bora, Satanya Bora,
Pankaj Bora, Puneswar Bora, Bitupan Bora and other came and the accused fled away
on their bikes. He was present in the house in the house along with her husband and
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SDJM (M), Titabar
G.R. Case No. 610/2017
two sons- Dulal and Lalit. On 23/11/17, at night, at Bezgaon, the accused persons had
assaulted his son Dulal and Jumi Bora with rods and they had sustained grievous hurt
on their heads and there was bleeding and his son had filed a case at Rowriah
Outpost.
16. During cross-examination, PW3 stated that there was a light outside his house
and it was lit at the time of the incident. Police had recorded her statement. He denied
the suggestion that he did not state before the I.O. he had heard the sound of cutting
of the “jopona” and the accused had abused his son calling him “sudurbhai” and that
he should come out and that he shall be cut and shot and they did not come out of
their house fearing for their lives and that she had seen the accused Jonai Bora
through the gap of the thatched bamboo walls of their house and that she did not
name the persons- Khagen Bora, Kamal Bora, Satanya Bora, Pankaj Bora, Puneswar
Bora, Bitupan Bora, who had come to the place of occurrence and that on 23/11/17, at
night, at Bezgaon, the accused persons had assaulted her son Dulal and Jumi Bora
with rods and they had sustained grievous hurt on their heads and there was bleeding
and his son had filed a case at Rowriah Outpost. He denied the suggestion that the
incident as narrated by him and that he has deposed falsely and also that he did not
see Jonai Bora at the place of occurrence and that this case has been filed on the basis
of suspicion owing to the filing of an earlier case by his son.
17. PW4, Sri Gaurabh Bora deposed in his evidence that the incident took place
on 26/11/17, at about 12 midnight, wherein, hewas sleeping at that time when he
heard shouts and screams and sound coming from the house of the informant. He had
heard the sound of breaking of a car coming from the house of the informant and he
have also heard that some men were abusing the informant using filthy language
including the term “sutmarani” and the men were shouting that the informant should
come out and that he shall be cut and he should the case filed by him. On hearing the
shouts, he along with his mother, father- Sri Kamal Bora and Satanya Bora, Pankaj
Bora and his wife and other went of the house of the informant and as they were
carrying torch and on seeing them coming, the assailants, who were around four to
five in numbers and had come on bikes, fled away from the house of the informant.
He could not identify the assailants. On 23/11/17, there was a fight between the
informant and the accused persons at Bezgaon and Dulal Bora and Jumi Bora @
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SDJM (M), Titabar
G.R. Case No. 610/2017
Satanya Bora had sustained crack wounds on their heads and the informant had filed a
case against the accused persons at Rowriah Outpost. He had seen the broken front
and rear windshield of the Tata Zest car of the informant. He does not remember if the
glasses on the sides were also broken. He had also seen that the bamboo walls and
the door of the house of the informant were cut. Dulal Bora and his mother had seen
the accused Jonai Bora at the place of occurrence and as being one of the assailants
and they had told him about it.
18. During cross-examination, PW4 stated that he did not see the assailants. He
denied the suggestion that he did not state before the I.O. that he had heard the
sound of breaking of the car and he had heard the informant being abused and called
“sutmarani” and that there were about 4-5 assailants and they had left on their bikes.
He denied the suggestion that he did not state before the I.O. that on 23/11/17, there
was a fight between the informant and the accused persons at Bezgaon and Dulal Bora
and Jumi Bora @ Satanya Bora had sustained crack wounds on their heads and the
informant had filed a case against the accused persons at Rowriah Outpost and that
Dulal Bora and his mother had told him about seeing Jonai Bora at the place of
occurrence. He denied the suggestion that he has deposed falsely the incident as
narrated by him.
19. PW5, Sri Pinku Changmai deposed in his evidence that the incident
happened about a year back, at about 9:30 PM, wherein, he had to the house of his
sister- Pinaki Changmai Bora, which is located near the house of the informant and as
they were sleeping at night, he heard shouts and screams and he was told that
miscreants have come to the house of the informant and damaged the car of the
informant. He went to the place of occurrence along with his sister’s father-in-law-
Khagen Bora and saw the damaged Tata Zest vehicle of the informant. He had seen
that the front and rear windshield of the Zest car were broken and he also heard that
there was a fight between the informant and the miscreants whom he does not know
earlier and they had come and damaged the car and had also threatened to burn
down the house of informant. The miscreants had left before they reached the place of
occurrence. He does not know the identity of the miscreants. The Police had seized the
Tata Zest vehicle along with its Registration Certificate, Insurance Certificate and one
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SDJM (M), Titabar
G.R. Case No. 610/2017
deed of agreement from the informant and he had signed as a witness to the seizure.
Exhibit 2 is the seizure list and Exhibit 2(2) is his signature.
20. During cross-examination, PW5 stated that he did not read the contents of
Exhibit 2 and the same was not read over to him. He was told by the family members
of the informant about the miscreants damaging the car. He stated that the police had
obtained his signature as a witness to the seizure of a kerosene bottle and the broken
parts of the vehicle.
21. PW6, Sri Dibyashekhar Borah deposed in his evidence that the incident had
happened on 26.11.2017, at 12:00 midnight, wherein, he received a call from the
mother of the Informant and she told him that some people had come to their house
on bikes and they were breaking their car – Tata Zest, bearing Registration No.
AS03M9010, parked outside their house and had also damaged the garage and the
bamboo walls of the house. He immediately went to their house and reached within 25
minutes and he saw that the glass of the case was broken and the bamboo walls had
been damaged and mud had come off their walls. He was told by the Informant and
his mother that the accused persons had come to their house, along with others and
damaged the case and the bamboo walls. He did not see anyone else on the spot, as
the assailants had left by then. About two – three days, prior to this incident, the
Informant had filed a case against the accused persons, at Rowriah Police Station. He
does not know why the case at Rowriah was filed. The I.O. had seized the Registration
Certificate of the Zest Car, Insurance Certificate and one deed of agreement from the
Informant and he had signed as a witness to the seizure. Ext.2 is the seizure list,
wherein, Ext. 2(3) is his signature.
22. During cross-examination, PW6 stated that he did not see the incident of the
breaking of the glass of the car and the damage to the bamboo walls of the house. He
did not state before the I.O. that the incident had happened on 26.11.2017, at 12:00
midnight, wherein, he received a call from the mother of the Informant and she told
him that some people had come to their house on bikes and that he had reached the
house of the Informant within 25 minutes and that about two – three days, prior to
this incident, the Informant had filed a case against the accused persons, at Rowriah
Police Station. The seizure list was written when he signed and the contents were read
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SDJM (M), Titabar
G.R. Case No. 610/2017
over to him. He denied the suggestion the incident as narrated by him did not happen
and that he did not visit the house of the Informant and did not see the damaged car
and walls of the house and that he has deposed falsely, for the sake of the Informant,
who is his cousin.
23. PW7, S.I. Nogen Rajkhowa deposed in his evidence that on 26.11.2017
after registration of the FIR, he was given responsibility of investigation. He went to
the place of occurrence, drew up the rough sketch map, recorded statement of
witnesses, seized the offending vehicle and the same was given zimma and also
collected MVI report.
24. During cross-examination, PW7 stated that he has not seized anything like
kerosene bottle. He has not recorded statement of Puneshwar Bora whose name is
mentioned in Ext. 4. PW Bonty Bora did not state to him that “he had heard the sound
of cutting of the bamboo gates “jopona” and they also heard the sound of someone
hitting on the tin roof of their garage. They heard people outside abusing her son
calling him “sudurbhai” and asked him to come out and why he had not withdrawn the
case filed against them and that they shall cut her son and even shoot him. They did
not initially go out for house fearing for their lives when he heard that the persons
outside were breaking and damaging their Tata Zest vehicle, parked in the garage, she
peeped through the gaps of the thatched bamboo walls of their house and saw the
accused person Jonai Bora. On seeing her peeping and when she asked them not to
damage the car, the accused abused her by calling her “bonori” and he asked him to
come out and that he shall also cut her. All the glasses of the car, including the front
and rear windshield and the glasses on the sides were broken and the car was
damaged. The accused had also hit on the bamboo walls of their house, the gate and
the door with “daw” and cut the same. There were about five persons who had come
to their house and they kept on abusing and threatening them. He could only identify
the accused Jonai Bora. As there was a lot of hue and cry at that time, their
neighbours, which included –Khagen Bora, Kamal Bora, Satanya Bora, Pankaj Bora,
Puneswar Bora, Bitupan Bora and other came and the accused fled away on their
bikes. He was present in the house in the house along with her husband and two sons-
Dulal and Lalit. On 23/11/17, at night, at Bezgaon, the accused persons had assaulted
his son Dulal and Jumi Bora with rods and they had sustained grievous hurt on their
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SDJM (M), Titabar
G.R. Case No. 610/2017
heads and there was bleeding and his son had filed a case at Rowriah Outpost.” PW
Gaurabh Bora did not state to him that “he had heard the sound of breaking of a car
coming from the house of the Informant and he has also heard that some men were
abusing the Informant using filthy language including the term “sutmarani” and the
men were shouting that the Informant should come out and that he shall be cut and
he should the case filed by him. On hearing the shouts, he along with his mother,
father – Sri Kamal Bora and Satanya Bora, Pankaj Bora and his wife and other went of
the house of the Informant and as they were carrying torch and on seeing them
coming, the assailants, who were around four to five in numbers and had come on
bikes, fled away from the house of the Informant.” PW5 Pinku Changmai did not state
to him that kerosene bottle was seized along with seized vehicle. PW6 Divya Sekha
Bora did not state to him that incident happened on 26.11.2017, at 12:00 midnight,
wherein, he received a call from the mother of the Informant and she told him that
some people had came to their house and he searched the house of Informant within
25 minutes that about 2-3 days, prior to this incident, the Informant had filed a case
against the accused persons, at Rowriah Police Station. He denied the suggestion that
he has not properly investigated this case.
25. So, these are the depositions of witnesses of Prosecution side. PW1 who is the
Informant of the case has deposed that on 26.11.2017 accused entered into their
house compound, abused him using filthy language, broken his Tata Zest vehicle,
broken the garage threatened him to withdraw the case filed for the incidence on
23.11.2017. Accused persons also cut their bamboo walls of their house and
threatened him to burn their house. Due to mischief created by the accused persons,
he has incurred loss of Rs. 1,15,000/-. PW1 also stated that prior to this incident on
23.11.2017, when he was returning home accused persons restrained him and his
cousin – Satyena Bora with iron rod causing injury. PW2 and PW4 who are the
neighbours of the Informant have stated that they heard about sound and scream
from the house of the Informant. When they came out, they saw 4-5 people fled
away. Though, they could not identify accused persons but they saw broken parts of
the vehicle and damage to the garage of the Informant, which support Prosecution
story of incidence on the date 26.11.17 at the house of the accused persons. PW3 who
is the mother of the Informant has stated that on 26.11.2017, at about 12:00 mid-
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SDJM (M), Titabar
G.R. Case No. 610/2017
night, they were sleeping and they heard sound of cutting bamboo walls. She also
heard sound of damaging Tata Zest vehicle, when she saw not to damage the car,
accused abused her by saying “bonori”, accused also cut bamboo walls of their house.
She could only identify the accused Jonai Bora. She has also stated that on 23.11.2017
accused persons assaulted her son Dulal and Jumi Bora with an iron rod causing
grievous injury. PW4 has stated that when he was sleeping, he heard shouts and
screams coming from the house of the Informant. He also heard sound of breaking car
from the house of Informant. When they went out, assailants fled away and he could
not identify them. He heard that on 23.11.2017 there was a fight between the
Informant and the accused persons and Jumi Bora sustained injury. PW5 also stated
that he heard shouts and screams on his house and he went out, he saw Tata Zest
vehicle of Informant in damaged condition. He could not identify the miscreants. PW6
is a seizure witness who signed as a witness in seizure list by which Tata Zest vehicle
and its documents were seized. PW7 is the Investigating Officer of the case regarding
the incident of 23.11.2017. No evidence is found and Informant has not filed any case
and hence in this case it has to be decided regarding the incident of 26.11.2017.
26. From the above evidence, it is clear that some miscreants have entered into
the house of Informant and damaged his Tata Zest vehicle and his garage. PW1 has
identified both the accused persons. PW2, PW4, PW5 and PW6 have not identified the
accused persons. PW3 has identified Jonai Bora. But all the witnesses have narrated
the prior incident of 23.11.2017 from which it appears that accused persons had
intention to commit crime and with this intention they have entered the house of the
Informant on 26.11.2017 at mid-night. By entering into the house of the Informant
accused persons have committed mischief by destroying the Tata Zest vehicle and
garage of the Informant, but from the evidence it is not found any material regarding
accused person’s entering into the house of the Informant to assault Informant or any
person or to wrongful restrain any person or put any person in fear of hurt or assault
or wrongful restrain. Hence, ingredients of section 458 IPC is not found rather
ingredients of committing the offence under section 457 IPC is found and as section
457 IPC is minor section of 458 IPC charge is altered though no opportunity of cross-
examination to the defence is given. Regarding committing mischief and threatening,
the witnesses have said that they have heard sound of damaging car and threatening
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SDJM (M), Titabar
G.R. Case No. 610/2017
the Informant. Hence, it is proved that accused persons have committed offence under
section 427 IPC and under section 506(II) IPC. Thus, Prosecution has proved the case
beyond reasonable doubt that the accused have committed lurking house trespass by
entering into the house of Informant during night and committed mischief by
damaging the Tata Zest vehicle and garage of Informant which cost more than Rs.
50/- and also accused persons have threatened to the Informant.
27. Section 34 IPC intent to meet a case in which it is not possible to distinguish
between the criminal act of the individual members of a party, who act in furtherance
of the common intention of all the members of the party or it is not possible to prove
exact what party was played by each of them. In this case, as it is proved that the
accused persons together committed offence. It is also proved that they have common
intention under section 34 IPC. Hence, guilt of the accused persons are proved beyond
reasonable doubt under sections 457/427/506(II)/34 IPC and they are liable to be
punished under the aforesaid sections of law accordingly.
28. Heard convicts on the point of sentence. The statements of the convicts are
recorded in separate sheet kept with the record. Convicts have prayed leniency in
pronouncing sentence as they are sole earner of their family and they are also
innocent.
29. I have considered the applicability of Section 3 and 4 of Probation of
Offenders Act, 1958. Considering the conduct of the convict during trial as well as their
age and as their first offence, I am of the opinion that the accused persons namely Sri
Rinku Pratim Bora and Sri Manoj Borah @ Junai should be allowed to go on Probation
by executing bond of Rs. 7,000/- (Rupees Seven Thousand) each with condition that if
they are found committing any offence, their Probation will be cancelled and they will
be punished with the offence for which they are convicted. The benefits are given to
convicts under the Provision of the Probation of Offender’s Act, 1958 with hope that it
will work as reformative measure upon them and they will restrain from committing
any other offence again in future.
14
Smt. Sutapa Bhusan,
SDJM (M), Titabar
G.R. Case No. 610/2017
ORDER
In the light of the above discussions, I have considered the applicability of
Section 3 and 4 of Probation of Offenders Act, 1958. Considering the conduct of the
convict during trial as well as their age and as their first offence, I am of the opinion
that the accused persons namely Sri Rinku Pratim Bora and Sri Manoj Borah @ Junai
should be allowed to go on Probation by executing bond of Rs. 7,000/- (Rupees Seven
Thousand) each with condition that if they are found committing any offence, their
Probation will be cancelled and they will be punished with the offence for which they
are convicted. The benefits are given to convicts under the Provision of the Probation
of Offender’s Act, 1958 with hope that it will work as reformative measure upon them
and they will restrain from committing any other offence again in future.
Let a copy of the judgment and order be given to the convicted person
immediately free of cost.
The convicted person is also informed of his right of appeal against the
judgment and order of conviction.
Seized articles, if any, are to be disposed of according to law.
Given under my hand and seal of this Court on this 25th day of July, 2019.
(Smt. Sutapa Bhusan)
Sub-Divisional Judicial Magistrate (M),
Titabar
15
Smt. Sutapa Bhusan,
SDJM (M), Titabar
G.R. Case No. 610/2017
APPENDIX
WITNESSES FOR THE PROSECUTION :
P.W.1 ... Sri Dulal Bora
P.W.2 ... Sri Pankaj Bora
P.W.3 ... Smt. Bonti Bora
P.W.4 ... Sri Gaurabh Bora
P.W.5 ... Sri Pinku Changmai
P.W.6 ... Sri Dibyasekhar Borah
P.W.7 ... Sri Nogen Rajkhowa
WITNESSES FOR THE DEFENCE :
NIL.
DOCUMENTS EXHIBITTED BY PROSECUTION SIDE:
Ext. 1 : Ejahar
Ext. 2 : Seizure List
Ext. 3 : Zimma-nama
Ext. 4 : Sketch Map
DOCUMENT EXHIBITED BY DEFENCE SIDE/ACCUSED :
NIL.
(Smt. Sutapa Bhusan)
Sub-Divisional Judicial Magistrate (M),
Titabar