N.Chowdhury v. State

Heard Mr.N.Chowdhury, learned counsel for the appellant and Ms.B.Saiki a, learned Addl.P.P. appearing on behalf of the State respondent.

#2. The judgment and order dated 31.12.2004 passed by learned Ad-hoc Addl. S essions Judge, Bongaigaon in Sessions Case No. 50(A)/2003 convicting the appella nt u/s 447/324/326/307 IPC and sentencing him thereby to undergo imprisonment fo r one year with find of Rs.1,000/-, rigorous imprisonment of two years with fin e of Rs.2,000/-, R.I. for two years and three years with fine of Rs.3,000/- res pectively have been challenged in this Criminal Appeal.

#3. The facts in brief, as projected by the prosecution, is that on 8.7.2003 at about 6 A.M. when the victim Kalahari Barman was ploughing in his land at th e back side of his house, the accused with a dao trespassed into the land and ga ve multiple blows causing injuries on different parts of the body of the victim. Hearing the hue and cry his son Dip kumar Barman came in his rescue who was als o assaulted by the accused by means of a dao. The wife of Kalicharan lodged FIR. Dip Kumar Barman removed his father to the hospital. The police on receipt of t he FIR registered a case u/s 447/324/326/307 IPC and on completion of investig ation, submitted charge sheet under the aforesaid law.

#4. /326/307 IPC. The accused denied the charge levelled against him under Section 447/324

#5. During the trial, prosecution examined as many as 10 witnesses in suppor t of its case. The accused in his statement recorded u/s 313 Cr.P.C denied the a llegation levelled against him and pleaded that he is innocent. On conclusion of trial, the learned trial court convicted the accused and sentenced him as state d above. PW 1 is the victim Kalicharan Barman. He deposed that on 8.7.2003 at abo 6. ut 5 AM while he was ploughing in his land, the accused assaulted him by means o f dao causing injury on his back on right soldier and left hand. He raised hue a nd cry and hearing his alarm his son Dip Kumar Barman and wife of Kalicharan al so arrived at the place of occurrence and seeing them the accused fled away. T he victim was taken to Abhayapuri P.S by his son wherefrom he was sent to hos pital. In his cross-examination, he stated that he purchased the land from one P arasuram and the sons of Parasuram were claiming that their father had not so ld the land. PW 1 however, admitted that he had no dispute or quarrel with the accused. He further stated that the accused gave blow from his back. His son f irst came to the place of occurrence and took him to police station by his bi-cy cle. He did not state that his son was also assaulted by the accused. PW 2 Srimati Annapurna Barman is the wife of PW 1. She deposed that on 7. the date of occurrence at about 5 AM, she heard hue and cry and went to the plac e of occurrence. She saw the accused inflicting dao blows on the victim. Her son also came to the place of occurrence. After assaulting her husband , the acc used left the place .Her son took the victim to the police station , then she lodged FIR. In her cross-examination, she stated that one Mera Das and few ot hers came to the place of occurrence. She stated that at 4 AM it was raining and the occurrence took place at 6-30 AM. The victim was assaulted with dao whic h was removed from the place of occurrence by the wife of the accused. She furth er stated that while the victim was carried out to the police station , on the way he fell down from the bi-cycle . She admitted that their relationship with the accused prior to the occurrence was good. She also did not state that the ac cused inflicted any injury to her son. PW 3 is Smt. Rita Roy. PW 4 Smt. Makan Das and PW 5 Smt Draupadi Das stat 8. ed in their evidence that they did not see the occurrence. PW 6 Dip Kumar Barman is the son of PW 1 and PW 2. He deposed that on 8.7.2003 at about 6 PM he heard hue and cry raised by his mother and saw her proceeding towards the paddy field . He followed her and saw the accused inflicting dao blows on his father. Accord ing to him his mother tried to rescue his father. The accused attempted to assau lt his mother. When he intervened the accused, the accused also assaulted him by means of a dao. He sustained injury on his neck. Thereafter he brought a rick shaw and took his father to the hospital. He was also examined by the doctor in the hospital . In his cross-examination he stated that he did not hear hue and cry raised by his father as he was sleeping. His mother saw the occurrence and raised alarm, hearing which he went to the place of occurrence. He stated none o thers came to the place of occurrence. He further stated that as no rickshaw was available, he took his father as his bicycle to the police station. He also st ated that his father did not fell from the bi-cycle. Subsequently, he stated tha t he saw the accused inflicting dao blows on his father . Again he stated that he saw his father lying on the ground. He also admitted that he had a cordial r elationship with the accused prior to the occurrence.

#9. PW 7 Dimbu Banikya, is a reported witness. He did not see the occurrence . PW 8, Dr.Abani Kt.Sarma examined the victim kalicharan, on police requisitio n and found the following injuries: (cid:28)1. bleeding present. 2. 3. ndons and vessels to the left little finger, bleeding present. 2 (cid:29) x 1 (cid:29) size sharp cut over tip of right shoulder, bleeding present. Sharp cut over left medial boarder of left hand transversely, cutting te Sharp cut transversely below right tip of Scapula, size 3 (cid:29) x ‰ (cid:28) depth, X-Ray show transverse cut of fifth metacarpal bone. Nature of injury is grievous. Approximate age of injury within ’o’ to ’2’ hours and injuries were caused by sharp cutting weapon. (cid:28) PW 9 is the Investigating Officer. PW 10 Dr.Suresh Biswas examined Dip

#10. Kumar Barman and found the following injuries: (cid:28) th cervical spine size of the injury 1 cm x .25 cm x .25 cm , caused bhy sh arp cutting weapon. Age of the injury about 6 ‰ hours. Type of the injury is s imple. (cid:29) A lacerated injury on the back of the neck and it is the level of the 7 From the above, it appears that PW 1 and PW 2 never alleged that the acc 11. used assaulted their son Dip Kumar Barman, the doctor who examined him found tha t the injury on the back of the neck was 6 ‰ hours old whereas injuries caused to PW 1 was very recent . PW 1 stated that as soon as his son and wife arrived at the place of occurrence, the accused fled away . PW 1 further stated that whi le he was ploughing in his land , it was still dark. PW 2 stated that after ass aulting her husband, the accused left the place of occurrence. According to PW 2 some other also witnessed the occurrence. But none other then PW 1,PW 2 and PW 6 have stated that they witnessed the occurrence. PW 2 never stated that she att empted to snatch away the dao from the accused and the accused attempted to assa ult her, whereas PW 6 has stated so. In the examination chief, PW 6 stated that he removed his injured father to the hospital on a rickshaw but in his cross - examination he stated that he carried his father on his bi-cycle as no rickshaw was available. Once he has stated that he was sleeping at the time of occurren ce and again he stated that he saw the accused inflicting dao blow on his father . It appears that the evidence of PW 1,PW2 and PW 6 are contradictory on materi al points.

#12. The doctor who examined the victim kalicharan Barman opined that the inj ury No.3 sustained by the victim was grievous in nature . According to him X-Ra y shows transverse cut of fifth metacarpal bone. The x-report was neither coll ected by the i.O. nor exhibited before the learned trial Court. The learned cou nsel for the appellant has submitted that the medical evidence does not show th at the victim sustained grievous hurt within the meaning of Clause 7 and Claus e 8 of Section 320 IPC. He also placed reliance in the case of Naib Singh Vs. State of Punjab reported in (1986) 4 SCC 401 and in the case of Hori Lal an d another Vs. State of U.P. reported in 1970(1) SCC 8 wherein it was observed that it is true that fracture has not been defined in the Penal Code. The mea ning of fracture would imply that there should be a break in the bone and that i n the case of skull bone it is not merely sufficient that there is a crack but that the crack must extend from the outer surface of the skull to the inner sur face. If the evidence is merely that a bone has been cut and there is nothing w hatever to indicate the extend of the cut whether a deep one or a mere scratch on the surface of the bone , it would be difficult that the injury is a grievo us hurt within the meaning of Section 320 IPC. It is not necessary that a bone should be cut through or crack must extend from the outer to inner surface. Ther e should be displacement or any fragment of the bone or there is rupture or fiss ure in it, it would amount to fracture within the meaning of Clause 7 of Section 320 IPC. The court is to see whether the cut in the bones noticed in the inju ry report are only superficial or do they effect a break in them.

#13. In the medical report, the doctor did not mention the breadth in the in jury No. 1 and depth of injury No.2. The doctor also admitted that those injuri es may be superficial in nature. Admittedly, in this case victim had no enmity o r grudge against the accused. They had a cordial relationship with the accused. The accused had no claim over the land the victim was ploughing. There was no en mity on the part of the accused to cause injury to the victim. It appears from t he evidence of PW 1 and 2 that the occurrence took place early in the morning w hen it was still dark. PW 2 also stated that it was raining . It also transpir es from the evidence that the victim had land dispute with the son of Parsura m and the accused is no way related to Parsuram . The victim might have been a ssaulted by somebody else and not by the accused could not be ruled out in the c ircumstances. More over, as stated earlier the evidence of PW 1 and PW 2 is inc onsistent with the evidence of PW 6. In view of the circumstances discussed above, I find that the prosecuti 14. on failed to prove his case against the accused beyond all reasonable doubt a nd therefore the accused is entitled to get acquittal of benefit of doubt .

#15. In the result , judgment and order passed by the learned court is se t aside . The accused is acquitted and set at liberty forthwith. Send down the c ase records alongwith a copy of this judgment .