High Court · 2012

Heard Mr. M. Nath, learned counsel for the convict appellants. Also heard Mr. K. Munir, learned Addl. P.P, Assam appearing for Respondent No.1. None appears for the Respondent No.2.

2. By the judgment and order dated 10.5.2007 passed by the learned Addl. S essions Judge FTC, Tinsukia in Sessions Case No.68(T)/2002 arising out of C.R. C ase No.35C/98, the appellants were convicted under Section 331 IPC and sentenced to undergo rigorous imprisonment for 3 years and to pay a fine of Rs.25,000/- a nd in default of payment of fine, to undergo rigorous imprisonment for 6 months with direction to pay the fine amount to the victim. 3. Briefly stated, the prosecution case is that the husband of the complain ant Shri Narayan Chowdhury was picked up by police on 21.3.1998 and put in the p olice custody. While on police custody, he was allegedly tortured by police til l he was produced before the Magistrate concerned on 23.3.1998. The wife of the victim, the Respondent No.2 filed a Complaint Case being No.35C/1998 before the learned Chief Judicial Magistrate, Tinsukia. Cognizance was taken and summons w as issued against the present convict appellants under Section 326/330 IPC. The learned Chief Judicial Magistrate, on the basis of the materials found against the appellants, committed the case to the Court of the learned Sessions Judge, T insukia, which was made over to the learned Addl. Sessions Judge, (FTC) No.1, Ti nsukia, which was registered as Sessions Case No.98(T)/ 2002. The appellants ple aded not guilty and claimed to be tried. It may be mentioned here that the appellant No.1 was the Officer-in-Char 4. ge of Tinsukia Police Station. The appellant No.2 was also serving as an Assist ant Sub-Inspector of Police in the said police station at the relevant point of time. It is on record that the husband of the complainant was wanted in connect ion with Tinsukia P.S. Case No.89/1998 and 101/1998. During investigation of t he aforesaid police station case, some police officials visited the complainant and picked up her husband from his residence.

5. After the complainant’s husband was brought to the police station as per the prosecution case, he was tortured causing some injuries on his person.

6. The defence case is that while the police party concerned visited the co mplainant’s house, in a bid to escape from police, complainant’s husband, who is having criminal record, jumped out through the window and he fell on a hard dra in and as a result, he received injuries.

7. The prosecution in order to establish the charge against the appellants, examined 7 witnesses including the Medical Officer. There is no eye-witness to the alleged torture meted out on the victim who was examined as P.W.2. 8. The complainant, the wife of the victim was examined as P.W.1. She is an eye witness to the incident. She had given a detailed narration as to how her husband was picked up by police. As per her evidence, she came to know about pol ice torture while she met her husband in the Court premises while he was taken t o the Court for production on 23.3.1998. She claims to have seen some injuries o n his person and her husband told her about the police torture. P.W.2 is the vic tim of alleged police torture. He has given more detailed account of police tort ure on him. He has specifically mentioned the name of Gautam Borah, the appella nt No.1 and P.C. Tamuli, appellant No.2, who had tortured him. He deposed that he was beaten with a lathi from head to toe. His hands were put on table and be aten. He fell down and lost his consciousness. There was blood oozing through n ostril. Such torture was given on 22.3.19978 as per his deposition on 22.3.1998. The learned Chief Judicial Magistrate sent him to jail hazot and ordered for h is treatment. On 24.3.1998, the jail doctor medically examined and sent him to A ssam Medical College, Dibrugarh, where X-Ray was done. The X-Ray and medical rep orts were collected by police. The medical officer, jail doctor Biswajit Baruah was examined as P.W.7. He proved the medical report and the X-Ray report, who issued the medical certificate. As per his evidence, he provided treatment to th e injuries sustained by P.W.2 till 31.3.1998. He produced the register maintain ed by the Central Jail, Dibrugarh which was marked as Ext.10. In cross examinat ion, he stated that there was record of giving first aid on 23.3.1998 to the inj ured UTP Narayan Chowdhury, P.W.2. However, in cross examination, he stated th at the type of injury found on the person of P.W.2 could be caused by falling on a very hard substance. He further stated that as per X-Ray report, fracture wa s found on the left wrist and middle finger of the right hand. On the basis of the X-Ray report, he also stated that there is a mention of (cid:28)second metaphor car pal bone of right hand is old (cid:29). He did not mention the age of the injury in his medical report. As per the medical evidence, only two injuries were found on the person 9. of P.W.2. Both the injuries are old. The opinion of the Medical Officer on the a ge of the injury has not been challenged or questioned by the prosecution. There fore, it remains as a settled position that the injuries sustained by the victim were old. In other words, the medical evidence has clarified/proved that the i njuries in question were received by P.W.2 before he was picked up by police on 21.3.1998.

10. The evidence of P.W.2 about the alleged police excess on the victim, in my considered view, is exaggerated inasmuch as, while deposing before the Cour t about the incident, he stated that he was beaten with a lathi from (cid:28)head to to e with lathis (cid:29) and due to such beating he fell down unconscious. If he was reall y beaten up by lathis from head to toe, he should have received numerous injurie s but as per the medical evidence he sustained only two injuries; that too, old ones. Moreover, as per the opinion of the medical officer, the aforesaid injur 11. y could be sustained by falling on a hard substance. Even assuming that the afo resaid injuries were fresh ones, there is nothing on record that those injuries were grievous in nature. In my considered view, unless a subject receives grievo us injury/injuries, he cannot be said that police committed excess by beating hi m by lathi or some weapon.

12. On appreciation of the relevant evidence on record, I find that the pros ecution could not prove the charge against the appellants beyond all reasonable doubts inasmuch as no grievous injury was found on the person of P.W.2 although he was reportedly beaten up by lathi from head to toe. As per medical evidence, no head injury was found. In view of the above, I cannot persuade myself to acce pt the view taken and conclusion arrived at by the learned trial Court for convi cting and punishing the appellants by the learned trial Court. The appellants ar e entitled to get an order of acquittal on benefit of doubt. Accordingly, they are acquitted on benefit of doubt. It is stated that the appellants are on bail . Bail bond stands discharged. 13. 14. The appeal stands allowed and disposed of. Return the L.C.R forthwith.