High Court · 2012

2. The case of the prosecution may, in brief, be described, thus: On 26.05. 2002, at about 5-30 p.m., when PW 2 (Dilip Goswami), was standing in front of hi s shop, the accused-appellant, Dulu Kakati, came there with a scissors and attem pted to give a blow, on the chest of PW 2, by the said scissors, but as PW 2 tri ed to save himself by raising his hands, the blow, given by the accused-appellan t with the scissors, fell on the right hand of PW 2 and, as a result of thereof, PW 2 suffered injury in the middle of his right arm. On being so assaulted, PW 2 fainted and fell down, whereupon, he was carried to Pathsala Hospital and, fr om there, he was shifted to Baruah Nursing Home, where he remained under treatme nt for a period of 6 days. On receiving information from the people in the neig hbourhood of the shop as regards the occurrence, a First Information Report (in short, ’FIR’) was lodged, in this regard, by Prasanta Kumar Goswami (PW 1), youn ger brother of the injured. This FIR came to be registered as Pattacharkuchi PS Case No. 88/02, under Sections 448, 326 and 307 IPC. On completion of investig ation, police laid charge-sheet against the appellant under Section 448/326/307 IPC.

3. During trial, charges, under Section 448, 326 and 307 IPC, were framed a gainst the accused. To the charges, so framed, the accused pleaded not guilty. The accused was, then, examined under Section 313 CrPC and, in his examination, the accused denied to have committed the offence, which was alleged to have bee n committed by him, the case of the defence being that of total denial. No evid ence was adduced by the defence. On completion of trial, the learned trial Cour t did not find the accused guilty of the offences under Sections 448, 326 and 30 7 IPC, but found him guilty of the offence under Section 324 IPC and convicted h im accordingly and passed sentence against him as mentioned above. Aggrieved by his conviction and the sentence passed against him, the accused has preferred t his appeal.

4. D. Das, learned Additional Public Prosecutor, Assam. I have heard Mr. K. Agarwal, learned counsel for the appellant, and Mr. To bring home the charges, the prosecution examined as many as ten witne 5. sses, PW 1 being the informant, PW 2 being the injured, PW 5 was the doctor and PW 10 being the Investigating Officer. As far as the remaining witnesses are c oncerned, though they were claimed to be eye-witnesses, all of them turned hosti le. What is, however, necessary to bear in mind is that, while these witnesses, namely, PW 3, PW 4, PW 5, PW 6 V PW 7 did not name the accused as the assailan t, they did concede to the effect that an occurrence of assault on PW 2 had take n place at the shop of PW 2 and PW 2 was injured by the assault.

6. Bearing the above aspects in mind, when we turn to the evidence of the i njured (PW2), his evidence is to the effect that, on the day of the occurrence, at about 5-00/5-30 p.m., when he was present at his shop, the accused came there holding a scissors in his hand and attempted to give a blow with the scissors o n his (PW2’s) chest, but, as he (PW 2) raised his hands to save himself from the assault, the blow, given by the accused with the scissors, fell on his (PW2’s) right hand, whereupon PW 2 lost his sense, he was carried to Pathsala Hospital a nd, later on, he was admitted and treated at Baruah Nursing Home, where he remai ned for about 6 days. What is, now, of immense importance to note is that in his cross-examina 7. tion, PW 2 has admitted that he did not know the accused from before the day of the occurrence and that he gathered the name of the accused from the people, who were in the neighbourhood of his shop. What is, however, important to note, in the evidence of PW 2, is that he had clearly deposed that the accused remained at his (PW 2’s) shop for about 2/3 minutes. Thus, the present one is not a case , wherein PW 2 can be claimed to have had a mere fleeting glance of the person, who had given a blow with a scissors on him (PW 2). It needs to be, now, pointed out that it has been contended, on behalf o 8. f the accused-appellant, that the identification of the accused having not prece ded by a test-identification parade, his (PW 2’s) evidence, identifying the accu sed, as the assailant, can be given no credence. In this regard, suffice it to point out here that the test-identification parade is a stage during investigati on of a case and, hence, it does not form a part of substantive evidence. Subst antive evidence is the identification of an accused at the trial. In the case at hand, PW 2 has clearly identified the accused-appellant a 9. s his assailant and this is the substantive piece of evidence against the accuse d. In the trial, nothing, in particular, could be elicited by the defendant fro m the cross-examination of PW 2 to show that he made a mistake in recognizing an d/or identifying the accused-appellant.

10. What emerges from the above discussion is that it was the accused-appell ant, who had attempted to give a blow, with a scissors, on the chest of PW 2, bu t as PW 2 resisted the attempt of the accused-appellant by raising his right han d, the blow, given by the accused-appellant, fell on the right hand of PW 2 and PW 2 sustained stab injury, which, according to the doctor (PW5), was of ‰ (cid:29)X ‰ (cid:29) size, the nature of the injury was grievous and the same had been caused by a s harp weapon. In his cross-examination, the doctor (PW 5) has clearly deposed th at the injury could have been caused by a scissors.

11. In the light of the above discussions of the evidence on record, this Co urt does not find any reason to disbelieve the evidence of PW 2 and his evidence is clinching and proves beyond any reasonable doubt that it was the accused-app ellant, who has injured PW 2 in the manner as have been pointed out above. 12. In the face of the evidence on record, there can be no escape from the c onclusion that the accused-appellant had voluntarily caused hurt to PW 2 with a dangerous weapon, such as, scissors, which can be used for stabbing a person and which, when used as a weapon of offence, is likely to cause death. The convict ion of the accused-appellant, under Section 324 IPC, cannot, therefore, be said to be not sustainable in facts or in law. This Court, thus, does not find any r eason to interfere with the conviction of the accused-appellant.

13. Coming to the question of sentence, it may be noted that the present cas e is about ten years old and the accused-appellant had remained in custody for 2 7 days during the period of investigation. In such circumstance, this Court is of the view that, while the conviction of the accused-appellant, under Section 3 24 IPC, is not bad in law, the sentence of 3 months rigorous imprisonment is exc essive, harsh and unreasonable.

14. While, therefore, the conviction of the accused-appellant, under Section 324 IPC, is not interfered with, the sentence is modified to the extent that th e accused-appellant is hereby sentenced to suffer imprisonment for a period of 2 7 days, which he has already undergone, and, therefore, he needs to pay the fine of Rs. 1,000/- and, in default of payment of fine, he shall suffer rigorous imp risonment for a period of 5 (five) days. The fine shall be deposited by the acc used-appellant within a period of one month from today. In the event of his fai lure to make payment of fine, the sentence of imprisonment, as directed hereinbe fore, shall follow.

15. ant, as indicated hereinabove, this appeal stands disposed of. With the modification of the sentence, passed against the accused-appell

16. Send back the LCR.