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Md. Nurul Haque and ors. Vs. the State of Assam - Court Judgment

LegalCrystal Citation
Subject;Criminal
CourtGuwahati High Court
Decided On
Judge
AppellantMd. Nurul Haque and ors.
RespondentThe State of Assam
Prior history
K. Lahiri, J.
1. The alleged occurrence took place on 21-10-1970. twelve long years ago. It took only seven years for the trial Court to conclude the trial of the complaint case. Learned Magistrate convicted the accused for commission of the offences of criminal trespass, rioting and theft of property. On conviction by the trial Court the accused applied for bail but their bail bonds were accepted only on 25-4-1977, they were released from fail on 26-4-1977. therefore they were in jail for fo
Excerpt:
.....they are poor peasants and belong to the millions of poverty striken lowly, little indians; the courts have failed to provide prompt trial. do we expect societal benefit if the accused are sent to jail to suffer the exposure of our overcrowded, deplorable local jails, in bad company of some hardened criminals? a strong doubt arises on account of the failure of the complainant to place before the court the first complaint. secondly, i find that the complainant has failed to prove the 'bainapatra' the foundation of the claim for possession of the land and house nor did he produce the order said to have been obtained by him in the proceedings under section 145, cr. it is interesting to note that the complainant claimed that derges ali and akbar ali had shares in the properties. the..........slow justice is the anti-thesis of decent and fair procedure enshrined in our constitution. the courts have failed to provide prompt trial. they have been awaiting the result of the decision with pulsating suspense, anxieties and miseries. they lived under a cloud of anxiety and suspicion. we must dispense with slow motion justice and long distance litigation in the name of society, constitution and human rights. will the society gain anything if the accused are now sent to jail? do we expect societal benefit if the accused are sent to jail to suffer the exposure of our overcrowded, deplorable local jails, in bad company of some hardened criminals? rehabilitation of the accused in jail during the short period is a far cry. on the contrary, they are likely to come out from jail as.....
Judgment:

K. Lahiri, J.

1. The alleged occurrence took place on 21-10-1970. twelve long years ago. It took only seven years for the trial Court to conclude the trial of the complaint case. Learned Magistrate convicted the accused for commission of the offences of criminal trespass, rioting and theft of property. On conviction by the trial Court the accused applied for bail but their bail bonds were accepted only on 25-4-1977, they were released from fail on 26-4-1977. therefore they were in jail for four days. An appeal preferred by them was dismissed by the learned Sessions Judge. Hence the revision.

2. At the outset I would observe that the accused persons have been sentenced to short term simple imprisonment (for 30 days each) and to pay fine of Rs. 100/- each, in default, to suffer simple imprisonment for 15 days. In my opinion, it s sheer injustice to order an accused to suffer short term imprisonment after a apse of 12 long years of the occurrence. The accused were not the authors of the delay; they are poor peasants and belong to the millions of poverty striken lowly, little Indians; they are bread earners. The sluggish trial was a turnpike of miseries, sufferences and agonies for the petitioners. Slow justice is the anti-thesis of decent and fair procedure enshrined in our Constitution. The Courts have failed to provide prompt trial. They have been awaiting the result of the decision with pulsating suspense, anxieties and miseries. They lived under a cloud of anxiety and suspicion. We must dispense with slow motion justice and long distance litigation in the name of society, Constitution and human rights. Will the society gain anything if the accused are now sent to jail? Do we expect societal benefit if the accused are sent to jail to suffer the exposure of our overcrowded, deplorable local jails, in bad company of some hardened criminals? Rehabilitation of the accused in jail during the short period is a far cry. On the contrary, they are likely to come out from jail as anti-social elements, the time they shall spend in jail would be simply a dead time. This is one of main reason which prompts me to scrutinise the evidence carefully, although it is a criminal revision. The second facet is that this is the last court so far as the present accused persons are concerned as the highest Court in India is thousands miles away from this part of the land.

3. The intrinsic facts necessary for disposal of the present case:

The allegations are that on 21-10-1970 the accused committed criminal trespass, theft of property and rioting in the house of the complainant Hussain Ali while the latter Was at Nalbari in connection with his revenue case. Taking advantage of his absence the accused, armed with deadly weapons drove out the members of the family, forcibly occupied the house and took away paddy, jute and other properties. A complaint was filed and the same was sent to the police for investigation. The Police took no action. So the complainant filed the second complaint on 5-1-1970(71?). The accused were charged under Section 148/447/ 427/379/34, I.P.C.

The complainant is not an eye witness; he heard about the incident when he returned home and saw the accused in occupation of his house and saw some of the accused removing his property. He heard about the incident from PW-3 Nisan Ali. The complainant admits that there was a dispute in respect of the land but his claim was upheld in a proceeding Under Section 145, Cr. P.C. However, he admits that the accused filed a civil suit and obtained a decree, but at the relevant time the appeal was pending. He claims that the land belonged to 'Chakrakar Devalaya' but he possessed it on the strength of a 'Bainapatra' (an agreement to purchase the land). PW-2 Mujibar Rahman is allegedly an eye witness. He is the son of the complainant. He was bound to support the case of the complainant and he did so. The first . complaint which had been sent to police was neither produced nor proved in the instant case and no explanation was offered therefor.

In the second complaint Anser Ali. Kudus Ali, Samsul Haque, Ekabar Ali, Na-ser Ali Caonbura. Jahur Ali, Hasen Ali, Jaman Ali, Habiram Kalita, Jonab Ali and Gangaram were cited as witnesses. I do not find the name of PW Mujibar in the body of the complaint nor does his name appear in the list of the witnesses. As such, I am constrained to Hold that PW-2 Mujibar was brought to bear up the case of the complainant when the complainant could not examine the witnesses cited by him in the second complaint. A strong doubt arises on account of the failure of the complainant to place before the Court the first complaint. The next witness is PW-3 Nisan Ali. whose name also does not appear in the complaint. PW-4 Hussain Ali is the brother of the complainant.

4. On scrutiny of the entire material I find that the complainant has suppressed the first complaint, at least he has offered no explanation for not producing the same. Secondly, I find that the complainant has failed to prove the 'Bainapatra' the foundation of the claim for possession of the land and house nor did he produce the order said to have been obtained by him in the proceedings under Section 145, Cr. P.C. The complainant did not prove by any documentary evidence that he had preferred any appeal against the decree obtained by the accused. Therefore, I find so many ways and loopholes in the prosecution case. Further, I note that the police could not proceed on with the case though the first complaint was sent to them. This is also a significant factor. It is interesting to note that the complainant claimed that Derges Ali and Akbar Ali had shares in the properties. How is it that they did not lodge any complaint nor came forward to support the case of the complainant? It is astonishing why the complainant could not produce any independent and disinterested witness including the Caonbura cited by him in the complaint, in support of his case. I do not find any explanation worth the name as to why the witnesses could not be examined. Under these circumstances I am constrained to draw adverse inferences against the prosecution. The complainant has failed to establish that he was in possession of the disputed land. As a matter of fact he has failed to produce even a scrap of paper in support of his claim although the existence of the documents like 'Bainapatra', the order in his favour in the proceeding Under Section 145, Cr. P.C. was admitted by him.

5. I cannot accept the evidence of Mujibar Rahman for the reason that he is highly interested in the prosecution. That apart in the complaint absolutely nothing was mentioned about him. Nor is there any inkling in the complaint that he could be there at the place of occurrence. It appears that there was an existing dispute between the parties in respect of the land and house and the witness came to support his father's claim which the young boy was bound to do on the facts and circumstances of the case, He was even not cited as a witness in the complaint. Similarly. Nisan Ali and Hussain Ali are not reliable. PW 3 Nisan Ali's name does not appear in the complaint, Hassan Ali is the own brother of the complainant. He claims that he accompanied his elder brother Hussain Ali to Nalbari. So, he was not an eye-witness. He claims that PW 2 Mujibar informed about the incident at Nalbari. I have already held that it is difficult for me to rely on Mujibar. Further, the story that PW 2 Mujibar had informed the complainant and PW 4 Hussain at Nalbari is conspicuously absent in the complaint.

6. These facets of the case were not at all considered by the Courts below. The findings of the Courts are sketchy and diffusive. They did not consider about the delay in lodging the complaint, non-production of the first written report of the case namely, the first complaint. The Courts below also failed to consider that the complainant had failed to produce the alleged 'Bainapatra' and the alleged order under Section 145 of the Cr. P.C. The Courts below did not consider the statements of facts contained in the complaint and the variation of the story in the complaint with that made out in Court. The Courts below have failed to consider that the witnesses cited in the complaint were not examined by the complainant and that no explanation was offered therefor. The Courts below did not consider that the witnesses who were examined in Court were not mentioned as the witnesses in the complaint petition. I am convinced that if these aspects were brought to the notice of the Courts below they could not have convicted the accused of the charges. It appears to me that the case was brought to lay claim on the disputed land and the house. I am constrained to hold that the prosecution has failed to bring home the charges against the accused beyond reasonable doubt and as such the accused persons are entitled to benefit of doubt.

7. In the result I hold that the prosecution has failed to prove its case beyond reasonable doubt. Accordingly. I set aside the conviction and sentences. Fines, if paid, shall be returned to the accused and they need not surrender to their bail bonds. The petition is accepted.


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