High Court · 2012

This is an appeal against the judgment and order, dated 19.05.2004, passed, in S essions Case No.39/2002, by the learned Assistant Sessions Judge-1, Cachar, Silc har, convicting the accused-appellants under Sections 148 and 326 IPC and senten ced them, for their conviction under Section 148 IPC, to pay fine of Rs.2,000/- and, in default of payment of fine, suffer rigorous imprisonment for four months and also to suffer, for their conviction under Section 326 IPC, rigorous impris onment for ten years each with fine of Rs.3,000/- and, in default of payment of fine, rigorous imprisonment for a further period of six months. The learned appe llate Court has also directed the accused-appellants to pay to the injured, i.e. , PW1, a sum of Rs.10,000/- as compensation. Aggrieved by their conviction, the sentences passed against them and the direction given to them to pay compensatio n, as indicated hereinbefore, the accused-appellants have preferred this appeal.

2. The case of the prosecution, as unfolded at the trial, may, in brief, be described thus: On 17.01.99, at about 9 am, while Md. Chayer Ali Choudhury (PW1 ) along with his cousin, Namar Ali (PW3), were collecting firewood on the tilla (i.e., a small hillock) of Moni Lal Roy, accused Ajit Roy, Samar Roy, Sankar Roy , Sishu Roy, Nabadish Roy, all sons of Gopendra Roy, came in a body along with G opendra Roy, armed with deadly weapons and assaulted PW1, severed his right hand from near the wrist joint by giving a blow with dao. On being so assaulted, PW1 cried out and on hearing his cries, Namar Ali (PW3) came running to the place o f occurrence and found PW1 in injured condition with his right hand severed from near his wrist joint, whereupon Md. Razak Ali Choudhury, brother of Chayer Ali, lodged a First Information Report at Algapur Police Station. Based on this FIR, Algapur Police Station Case No. 05/99 under Sections 147/148/149/341/307 IPC wa s registered and, on completion of investigation, police laid charge-sheet again st the accused-appellants and the said Gopendra Roy (since acquitted) under Sect ions 147/148/ 149/326/307 IPC. During trial, charges, under Sections 147/148/149/326/307 IPC, were fram 3. ed against all the accused named in the charge-sheet and all the accused-appella nts and the said Gopendra Roy pleaded not guilty thereto.

4. In support of their case, prosecution examined as many as 6 (six) witnes ses. The accused were, then, examined under Section 313 Cr.PC and in their exami nation aforementioned, they denied to have committed the offences, which were al leged to have been committed by them, the case of defence being that of total de nial. No evidence was, however, adduced by the defence. On completion of the tri al, the learned trial Court, having held Gopendra Roy not guilty of the offences charge with, acquitted him accordingly, but found the present appellants guilty of the offences under Sections 148 and 326 of the IPC and passed, besides direc ting the appellants to pay the said sum of Rs.10,000/- as compensation to the in jured, sentences against them as mentioned above. Aggrieved by their conviction and the sentences passed against them and also the direction to pay compensation to the injured, the convicted persons have preferred this appeal.

5. appellants, and Mr. Z. Kamar, learned Public Prosecutor, Assam. I have heard Ms. B. Sharma, learned counsel, appearing on behalf of the

6. While considering the present appeal, it needs to be noted that PW1, who is the injured, and PW3, who was present near PW1 at the time of the alleged oc currence, are the two vital witnesses. According to the evidence of PW1, while h e was collecting firewood on the tilla (a small hillock) of Mohanpur jungle, 4-5 persons came, suddenly, from the back side, caught hold of him and asked him wh y he was stealing firewood and, then, they also asked PW1 to keep his hand on t he stump of a tree and when PW1 kept his right hand on the stump, one of the per sons, who had so arrived there, dealt a blow with a dao, the blow fell on his ri ght hand and his right hand got severed from just below the wrist joint. It is i n the evidence of PW1 that on cries being raised by him, his cousin, Namar Ali ( PW3), who had accompanied him to the jungle, came and found him in an injured co ndition. The learned trial Court has, indeed, taken note of the fact that PW1 is a person with his hand severed from the wrist joint.

7. Close on the heels of the evidence of PW1, PW3 has deposed that both of them (i.e., PW1 and PW3) had gone to the jungle to collect firewood. PW3 has fu rther deposed that he does not know how the occurrence took place inasmuch as he had not seen the occurrence of assault on PW1. Both these witnesses, namely, PW1 and PW3, are declared hostile by the p 8. rosecution. They were cross-examined by the prosecution, the previous statements alleged to have been made by PW1 and PW3 were put to them and both these witnes ses denied to have made the statements, which were put to them and attributed to them as their statements made to the police. On the basis of the evidence of th e Investigating Officer (PW5) that such statements, as indicated hereinbefore, w ere made by these witnesses, the learned trial Court treated the previous statem ents made by these witnesses to the police as substantive evidence and, accordin gly, found the present appellants guilty of the offences charged with.

9. I may pause here to point out that the previous statements, made to a po lice officer, is never a substantive piece of evidence and no conviction can be based on the basis of such evidence unless the truth of such a statement, indepe ndent of the statement, is found to be true or proved to be true.

10. In the case at hand, even if the evidence of PW5 is assumed to be true t hat the two witnesses, PW1 and PW3, had made the statements, which were attribut ed to have been made by them, the fact of the matter remains that there was no g uarantee or assurance that what they had stated before the police were true, par ticularly, when neither PW1 nor PW3 stood by their previous statements made by t hem to the police and when they, while giving their evidence in the Court, did n ot name any of the accused-appellants as the assailant or associate of the assai lant. In such circumstances, no reliance, on the previous statements of these tw o witnesses, could have been placed by the learned trial Court, particularly, wh en there is not even an iota of evidence given by PW1 and PW3 implicating the pr esent accused-appellants.

11. As far as the remaining witnesses are concerned, they are not relevant f or the purpose of the present appeal inasmuch as their evidence, taken as a whol e, does not prove the involvement of the present accused-appellants as the assai lants of PW1. I may hasten to point out that the fact that the right hand of PW1 was severed, as described above, has not been in dispute. What has been in disp ute is the involvement of the accused-appellants, in the said occurrence, as the ones responsible for causing the said injury at the hand of PW1.

12. Because of what have been discussed and pointed out above, it becomes ab undantly clear that conviction of the accused-appellants under Section 148 IPC a nd 326 IPC are not sustainable in the facts and attending circumstances of the p resent case and the law relevant thereto.

13. In the result and for the reasons discussed above, this appeal succeeds. The conviction of the accused-appellants, coupled with the direction for paymen t of compensation and the sentences passed against them, are hereby set aside. T he accused-appellants are held not guilty of the offences under Sections 148 and 326 IPC and they are accordingly acquitted of the same. Their bail bond stands cancelled and their sureties shall stand discharged.

14. Let the LCR be sent back.