High Court · 2012

6. The learned trial Court by the judgment and order dated 05-11-19 98 convicted the accused u/s 458/324/366 read with section 511 IPC. On appeal, t he learned Sessions Judge, Darrang by the judgment and order dated 11-01-2002 pa ssed in Criminal Appeal No.17(D-4)/1998 set aside the conviction and sentence an d remanded the case for fresh disposal in terms of the directions contained ther ein.

7. On remand, the learned trial Court recorded the statement of the accused person u/s 313 of the Code of Criminal Procedure, 1973 (Cr.P.C.). The l earned trial Court also heard the arguments of both the sides afresh. On conside ration of the materials on record and the arguments advanced, the learned trial Court convicted the accused as aforesaid and sentenced him accordingly.

8. Hence this appeal.

9. lowed the appellant to go on bail. This Court on 29-07-2003 had admitted the appeal and had also al

10. Mr. H.R.A. Choudhury, learned Senior Counsel appearing for the a ppellant, submits that the prosecution story is wholly improbable. Pointing out several inconsistencies in the evidence of the prosecution witnesses, he contend s that the conviction of the appellant is completely untenable. According to him , the accused could not be identified and the torch and the dagger allegedly use d by the accused were not seized. He also points out that all the witnesses are interested witnesses having previous enmity with the accused, raising serious do ubt and suspicion about the truthfulness of their testimony. Many of the relevan t persons, including the immediate neighbour Sumuri, were not examined, which ha s materially affected the prosecution case. He finally submits that in any view of the matter the impugned conviction and sentence cannot be sustained and calls for quashing of the same. In support of his submissions, Mr. Choudhury places r eliance on the following decisions:- ›› (1) (The State of UP & another -vs- Jagoo alias Jagdish and others) AIR 1971 SC 1586 (Para-15) (2) (State of Haryana -vs- Ram Singh) AIR 2002 SC 620 (Para-8 & 19) (3) (S. Sudershan Reddy and others -vs- State of AP) (2006) 10 SCC 163 (Para-12) (4) (Kapaldeo Mandal and others -vs- State of Bihar) (2008) 16 SCC 99 (Para-14,23 and 27) (5) (2011) 5 SCC 324 (Para-43) (Kuldip Yadav and others -vs- State of Bihar)

11. On the other hand, Ms. A. Begum, learned Additional Public Prose cutor, Assam appearing for the state respondent submits that the two eye witness es PW 1 and 2 had identified the accused and there is no reason to disbelieve th eir evidence. She contends that there is no merit in the appeal to warrant inter ference with the conviction and sentence of the learned trial Court. She therefo re prays for dismissal of the appeal.

12. ave been duly considered. The arguments advanced by the learned Counsels for the parties h

13. sses- PW -1 PW -2 PW -3 PW -4 PW -5 PW -6 PW -7 PW -8 In this case, the prosecution examined the following eight witne ---- ---- ---- ---- ---- ---- ---- ---- Rup Banu Khatun Rukia Khatun Ahez Ali Md. Hasen Ali Md. Abdul Jalil Mustt. Kulesa Khatun Dr. Prasanna kumar Das Shri Nareswar Nath

14. Though the defence examined three witnesses, their evidence do n ot throw much light on the incident and the learned trial Court having found the ir evidence to be evasive, rightly did not place any reliance on such evidence.

15. Coming to the prosecution witnesses, the victim women i.e. PW-1 in her evidence stated that about four years back she had married Gopal Das, who was at Guwahati on the night of occurrence. She was at her parents house sleepi ng with her elder sister Rukia and grandmother Fulesa Begum. According to her, t he accused entered into the room, forcefully tried to drag her out and when she resisted, the accused stabbed her by dagger. She cried for help and then the acc used ran away. In cross examination, she stated that she was sleeping with her s ister and grandmother on one bed. Though it was dark inside the house, she could recognize the accused when he lighted a torch. She stated that she caught hold of the lungi of the accused but when he stabbed her on her hand, she let the acc used go. According to her, Hasen Ali and Sumuri were immediate neighbours and th ey came to their house on that night. She narrated the incident to Hasen Ali and Sumuri. She further stated that at the time of her marriage, the accused and hi s father had objected.

16. PW 2 is Rukia Khatun, the sister of the victim. She also said th at on that night she was sleeping with her sister and grandmother when the accus ed came inside the room and tried to rape her sister but ended up stabbing her a nd ran away. PW 2 has stated that PW 1 had cried loudly. She further stated that she could recognize the accused from the light of the torch. In her cross exami nation, she stated that Sumuri had come to their house on that night. She furthe r stated that the accused wanted to marry her sister, which proposal was turned down by her sister.

17. Both the PWs 1 and 2 stated that their father Ahez Ali took PW 1 to the police station on the next day.

18. PW 3 is the father of the victim. In his evidence he stated that he was at Guwahati and when he got information about the incident, he came home and found his daughter in an injured condition. She told him that Abdul Awal th e accused had stabbed her. In his cross examination, he stated that he had seen three cut injuries on the left hand of his daughter.

19. Of the two neighbours, only Hasen Ali was examined as PW-4 but S umuri was not examined. He was, however, declared as hostile. Even though declar ed as hostile, his version in the cross examination sufficiently corroborates th e testimony of PWs 1 and 2.

20. PW 6 is the grandmother of PWs 1 and 2. She deposed that she did not recognize the accused and that she did not know anything about the incident as she is an old woman and was sleeping. The doctor PW 7 in his evidence stated that he had examined the 21. victim and found two clean cut injuries, one on the left arm and the other on th e left elbow. According to him, both the injuries were simple in nature and caus ed by sharp weapon. In his cross examination, he stated that there was no police requisition for examination of the victim and that he had issued the injury rep ort on the request of the injured.

22. The evidence discussed above indicates that the three women were sleeping in the room on the same bed and it was dark inside the room. PW 1 in h er cross examination stated that she could identify the accused from the light w hich emanated from the torch when he lighted the same. She also stated that she had caught hold of the lungi of the accused but when he stabbed her on the hand, she let him go whereafter he fled away. She further stated that when she got ma rried, the accused and his father had objected. This version of PW 1 is corrobor ated by the PW 2 in her evidence and she could also identify the accused. The in juries sustained by PW 1 also stood proved by the medical evidence, at least to the extent of the two injuries.

23. It is true that the investigation could have been carried out in a much more systematic and better way. For example, Sumuri, the neighbour could have been produced and examined. The torch light and the dagger used by the acc used were not recovered and seized. But these short comings together with some i nconsistencies in the prosecution evidence, like the evidence of the grandmother , though have dented the prosecution case to a certain extent, are not such that the testimony of the victim woman and PW 2 can be discarded altogether. The kin d of evidence the grandmother PW-6 gave can be explained as being the general te ndency to put under the carpet such unsavoury incident.

24. The decisions relied upon by Mr. Choudhury, learned Senior Couns el for the appellant, reiterate the general principles which were applicable in the facts of those cases. In State of UP and another (supra), the Hon’ble Suprem e Court reiterated the principle that the witness whose evidence is essential to the unfolding of the narrative should be called. But in the present case, the e vidence of Sumuri though would have certainly added strength to the prosecution case but her absence does not seriously undermine the truth of the prosecution c ase. In so far related or interested witnesses are concerned, unless the Court r ecords a satisfaction that their oral testimony stands tainted with suspicion, t heir evidence cannot be discarded. Relationship is not a factor to affect the cr edibility of a witness. The Court has to adopt a careful approach and consider s uch evidence upon proper scrutiny. The same principle will apply when there is a strained relationship between the accused and the victim. Regarding medical evi dence and ocular evidence, the general rule is that oral evidence of eye witness es has to get primacy as medical evidence is basically opinionative. But in Kapi ldeo Mandal (supra), there was total contradiction between the oral evidence and the medical evidence, which specifically ruled out the injury claimed to have b een inflicted as per the eye witnesses’ version, because of which adverse infere nce was drawn as to the reliability of the oral evidence and consequently the ac cused given the benefit of doubt. But that is not so in the present case. Here t he nature of the injury claimed by PW 1 was supported by the medical evidence. T here was no contradiction as such. The only difference being about the number of injuries, PW 1 said three and the doctor found two. This can be explained as it is a general tendency of a victim to exaggerate his or her injuries. But that w ill not make her testimony so unreliable that the accused should be given the be nefit of doubt.

25. The accused was at close proximity of the victim when the incide nt occurred and he was no stranger to her. From the light emanating from the tor ch, the victim could identify the accused. Therefore, the presence of the accuse d in the room where PW 1 was sleeping on the night of occurrence cannot be doubt ed. When a person enters a room intentionally where a lady is sleeping, that too at night, the only rational inference that can be drawn is that it was with the intention to commit some offence in relation to that lady.

26. In view of the above, this Court holds that the accused had ente red into the room at night where PW 1 was sleeping and caused injury to her by u sing a sharp weapon.

27. Having held that, the question which now arises for consideratio n is the justification or otherwise of the conviction u/s 458/324/366 read with 511 IPC. Let us examine the convictions separately under each head. Conviction u/s 458 IPC

28. Section 458 IPC says that whoever commits lurking house-trespass by night or hou se-breaking by night, having made preparation for causing hurt to any person or for assaulting any person or for wrongfully restraining any person or for puttin g any person in fear of hurt or of assault or of wrongful restraint, shall be pu nished with imprisonment of either description for a term which may extend to fo urteen years and shall also be liable to fine.

29. The evidence does not reveal that the accused had made prior pre paration for causing hurt to PW 1 or to assault her. He had inflicted the injuri es on the left arm and left elbow of PW 1 when she caught hold of his lungi and had cried out. Thereafter the PW 1 let of his lungi and he fled away from the sc ene. Therefore it transpires that the accused attacked PW 1 to escape from the s cene when she caught hold of him.

30. In the considered opinion of the Court, the offence u/s 458 IPC is not established against the accused. However, the evidence on record proves t hat the accused had committed the offence of lurking house-trespass or house bre aking by night in order to commit offence punishable with imprisonment, which is an offence punishable u/s 457 IPC. Conviction u/s 324 IPC

31. The ocular evidence alongwith the medical evidence, despite some inconsistencies , prove that the accused had inflicted blows on the left hand of PW 1 by means o f a sharp weapon. Therefore, he had voluntarily caused hurt by a sharp weapon. T he conviction u/s 324 IPC is justified and is hereby affirmed. Conviction u/s 366 read with 511 IPC

32. From a cumulative assessment of the evidence on record, it cannot be said with a ny degree of certainty that the charge against the accused of kidnapping or abdu ction or inducing of PW 1 to compel her marriage or the attempt to commit such o ffence stood proved beyond all reasonable doubt. Of course, there is great deal of suspicion that the accused intended to commit such offence but suspicion cann ot take the place of hard evidence. It would be very unsafe to convict the accus ed for the aforesaid charge on the basis of the available evidence. In such circ umstances, the benefit should go to the accused. Therefore, the conviction u/s 3 66 read with section 511 IPC cannot be upheld.

33. The end result of the above deliberation is that the conviction of the accused stands altered and the accused is now convicted u/s 457 and 324 I PC.

34. Coming to the sentence, it is seen that the occurrence took plac e on 25-08-1993 i.e. more than 18 years ago. By the long lapse of time, it can b e presumed that the physical and mental pain of the victim has healed. But for t he offence committed, the accused has to suffer some punishment because that is the mandate of the law. Here, it can be pointed out that the accused was taken i nto custody on the date of pronouncement of judgment i.e., on 19-06-2003 and was released on bail on orders of this Court on 29-07-2003. In other words, he was in custody for 41 days.

35. Considering the above and taking an overall view, the sentence i mposed by the learned trial Court is modified. For the offence u/s 457 IPC, the accused is sentenced to undergo RI for 6(six) months and to pay fine of Rs.500.0 0, in default, to undergo further RI for 1(one) month. For the offence u/s 324 I PC, the accused is sentenced to undergo RI for 6(six) months and to pay fine of Rs.500.00, in default, to undergo further RI for 1(one) month. Both the sentence s to run concurrently. Period undergone to be set off.

36. Appellant to surrender in the Court of the Assistant Sessions Ju dge, Darrang at Mangaldoi within 15(fifteen) days from today to carry out the se ntence.

38. Appeal stands allowed to the extent indicated above. Registry to send down the LCR.