1

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withdraw the case, but as he has not withdrawn the case.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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Smt. Sutapa Bhusan,

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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Smt. Sutapa Bhusan,

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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Smt. Sutapa Bhusan,

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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Smt. Sutapa Bhusan,

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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Smt. Sutapa Bhusan,

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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Smt. Sutapa Bhusan,

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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Smt. Sutapa Bhusan,

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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Smt. Sutapa Bhusan,

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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Smt. Sutapa Bhusan,

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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Smt. Sutapa Bhusan,

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