Judgment · High Court · 2012

Heard Mr. A.K. Bhuyan, learned counsel appearing for the appellants and The prosecution case in short is that on 15.8.2003, Hemanta Baruah lodge 3. d an ejahar in Azara Police Station stating therein that on that day at about 9 A.M. in the morning, his nephew, Sri Jugal Baruah (PW-2), was assaulted by accus ed-appellants, Dhiraj Baishya and Golak Baishya with sharp cutting weapons. As a result of the assault, PW-2 sustained grievous injuries on his person, for whic h he was hospitalized in Gauhati Medical College Hospital. On the basis of the F IR, aforenoted, police registered Azara P.S. Case No.103/03, under Section 341/3 26/307/34 IPC and launched investigation. On completion of the investigation, by filing charge sheet, both the accused persons were sent up for trial, for commi ssion of offence under Section 326/307/34 IPC.

#4. On their appearance before the Magistrate, the case was committed to the Court of Session for trial. During trial, the learned Sessions Judge, framed fo rmal charges under Section 326/307/34 IPC against the accused above named. On re ading over and explaining the charge afore noted, both the accused pleaded not g uilty and claimed to be tried.

#5. In the trial, the prosecution examined as many as ten (10) witnesses. On completion of the recording of the evidence of the prosecution witness, the sta tements of the accused-appellants were recorded as per provision of Section 313 CrPC. In their statement, under Section 313 CrPC, both the accused persons took the stand of total denial of the charge.

#6. On completion of the hearing, the learned trial Court convicted both t he accused-appellants under Section 307 IPC read with Section 34 IPC and sentenc ed each of them as aforesaid, giving rise to this appeal.

#7. Mr. A.K. Bhuyan, learned counsel appearing for the accused-appellants su bmitted that the prosecution has not been able to established the charge against the accused-appellants beyond all reasonable doubt, since the essential ingredi ents of Section 307 IPC is not available against the accused-appellants in the i nstant case. Learned counsel for the appellants further pointed out that from th e evidence on record, it is not clear, as to who had caused the injury on the he ad of the deceased and the common intention as has been alleged against the accu sed-appellants for the commission of offence has not been established beyond all reasonable doubt. In reply to the above contention, Mr. Das, learned Addl. P.P. submitted 8. that the prosecution has been able to establish the charge against the accused-a ppellants beyond all reasonable doubt and therefore, the judgment and order pass ed by the learned trial Court do not call for any interference in this appeal.

#9. Submissions advanced by the learned counsel for the parties received due attention of this Court. Learned counsel for the parties led this Court extensi vely to the evidence of the prosecution witness and the materials available on r ecord in support of their respective contentions.

#10. In order to appreciate the evidence on record and the contention made by the learned counsel for the parties, it would be apposite to discuss, herein be low, the core of the prosecution evidence. PW-1, Sri Hemanta Baruah, the first informant is the paternal uncle of t 11. he injured Jugal Baruah (PW-2). Sri Rinku Baishya (PW-3) and Simanta Baishya (P W-4) are the eye witness of the occurrence. PW-5, Smti. Chandana Das and PW-8 Sm ti. Alaka Das are the neighbour of the accused persons, who were declared by the prosecution. PW-6, Sri Utpal Das is the seizure witness. PW-7, Dr. Ruben Choudh ury is the Medical Officer, who examined the injured after the occurrence. PW-9, is SI of Police, Ampee Daulaguphu, PW-10, is Smti. Reena Kalita and CW-1, Sri T railokya Bora is the Investigating Officers of the case. DW-1, Sri Dwijen Talukd ar and DW-2, Sri Jogen Ch. Baishya were examined by the accused persons in suppo rt of their plea of alibi.

#12. On 14.8.2003, Sri Hemanta Baruah (PW-1) accompanied by his daughter Smti . Nipa Baruah and his nephew injured Jugal Baruah had come to the house of the f ather-in-law of PW-1, situated at Bhotapara. On the next day i.e. on 15.8.2003 a t about 9 A.M. in the morning Sri Rinku Baishya (PW 3) and Jugal Baruah (PW-2) h ad gone out for roaming in the locality. After some time, PW-1 was informed by R inku (PW-3) that the accused-appellants, namely, Dhiraj Baishya and Golok Baishy a assaulted Shri Jugal Baruah (PW-2), with sharp weapon. Immediately, PW-1 rushe d to the spot and found the injured Jugal being taken into a car by Hemanta Baru ah and others. At first the injured was taken to the police station from where h e was taken to the hospital for treatment. On the same day, PW-1 lodged an ejaha r Ext-1 in the Police Station. Thereafter, since Jugal’s condition detoriated, h e was shifted to the Medical College from where he was taken to the GNRC Hospita l for better treatment. After about one and half months, Jugal Baruah was discha rged from the hospital.

#13. Jugal Baruah (PW-2) deposed in his statement that on 15.8.2003 at a bout 8.30 A.M., he and his uncle Rinku (PW-3) came out to bring some articles fr om the local shop. While returning home, his uncle Rinku took a piece of 8’ feet timber from the house of a villager and when they were proceeding, accused Dhir aj Baruah stopping his uncle on the road, took out a machete (meat dao) from his bag. On seeing this, his uncle fled away from the place of occurrence by throwi ng the timber he was holding. PW-2 stood there confused, but all of sudden accus ed Dhiraj assaulted him on his hand. When PW-2 started running away from the pla ce of occurrence, co-accused Golak Baishya, followed him and they repeatedly ass aulted him from behind and caused several cuts on different places of his body. PW-2 started running with bleeding injury on his person till he fell down on the road after getting severe blows on his back. Thereafter, he became unconscious. PW-2 regained his senses after about 2 to 3 days in the GNRC Hospital.

#14. Rinku Baishya, (PW-3), who had accompanied the injured on the fatefu l day stated in his deposition that after taking timber from the house of Bhupen Das when both of them were returning, accused Dhiraj Baishya restrained them on the road. According to PW-3, accused Dhiraj Baishya took out a machete from und er his shirt. Out of fear PW-3 threw the timber he was holding and started runni ng by leaving Jugal Baruah (PW-2), on the spot. After some distance, PW-3 turned back and saw accused Golok Baishya and Dhiraj Baishya chasing and repeatedly as saulting Jugal Baruah (PW-2). Immediately, thereafter PW-3, informed his brother -in-law Hemanta Baruah, who in turn rushed to the place of occurrence and shifte d Jugal Baruah (PW-2) in a Maruti Van to the hospital. PW-3 also proved seizure of blood stained vest and gamocha vide Ext-2 by the police.

#15. According to Simanta Baishya (PW-4) on 15.8.2003, at about 9 A.M. while he was coming back from the house of his neighbour Shri Tilak Das, heard a hue a nd cry. When PW-4 approached towards the place of occurrence, he saw two persons chasing and assaulting a person from behind. PW-4 followed them for certain dis tance by running behind them. On reaching near them, PW-4 found injured Jugal Ba ruah (PW-2) lying on the ground. PW-4 noticed, also accused Dhiraj Baishya and Golok Baishya, both armed with machete (dao) were standing just by the side of J ugal Baruah. Without delay he and other persons gathered there and took Jugal Ba ruah in a motor vehicle to Azara Police Station. From Azara Police station the i njured Jugal was taken to Gauhati Medical College for treatment.

#16. Smti Chandana Das and Smti. Alaka Das, PW-5 and PW-8 respectively, w ere declared hostile by the prosecution, when they declined to support the prose cution case. PW-6, Utpal Das is a seizure witness, who proved the seizure of one blood stained vest and three gamochas, vide Ext-2.

#17. In order to ascertain, whether the statement of the witnesses is in conformity with the evidence of the doctor, it would be pertinent to extract her ein below the medical report of the victim.

#18. ugal Baruah, on 15.8.2003 found the following injuries - Dr. Ruben Choudhury, PW-7 of GNRC Hospital, Guwahati who examined J (cid:28)There was a cut injury over right side of forehead and right shoulder 3 mm, lat eral side of left thigh 2 cm, over back 1 cm, multiple abrasion over left middle and ring finger. CT Scan of Brain : Depressed comminuted fracture of right orbital roof and right cibriform plate with herniation of brain matter into the right anterior ethmoid air cells and extra conal compartment of right orbit superiorly and subperioste al haematoma in the superior of right orbit with downward displacement of superi or rectus muscle. The right eye ball is protosed. The superior rectus and superi or oblique muscfles are impinged upon by displaced bone fragment. He was dischar ged on 28th day of August, 2003 and we advised further hospitalization. According to PW-7, the injuries sustained by the injured were a grievous injury.

#19. On careful scrutiny of the evidence of the eye witness to the occur rence, it transpires that the incident was witnessed by three eye witnesses incl uding the injured. Learned counsel for the appellant emphasized on the fact that PW-2, t 20. he injured has implicated the accused person for the first time in the Court but , in cross examination, he has admitted that he did not know to the accused pers ons and came with Sri Hemanta Baruah (PW-1). Learned counsel further pointed out that Sri Rinku Baishya, (PW-3) one of the eye witnesses to the occurrence canno t be believed, since he ran away from the place of occurrence by throwing the ti mber. Learned counsel for the appellant emphasized on the facts that even if the facts stated by the witnesses are taken to be true, no offence under Section 30 7 IPC is made out against the accused appellant. Accused appellants did not assa ult the injured after he had fallen down on the ground, which implies that the a ccused never had the intention to cause death of PW-2. Learned counsel for the a ppellant emphasized on the fact that had there been intention to the cause the d eath of the injured, the accused appellants would have assaulted the injured eve n while he was lying on the ground. Learned counsel submits that the injured, wh o admittedly was running with full force sustained the injury on his head when h e accidentally fell down on the ground.

#21. Upon close scrutiny of the evidence of the injured PW-2, it appe ars that he was a stranger in the village. PW-2 had come to the village a day be fore the occurrence, therefore PW-2 not being able to identify the accused appel lants at the place of occurrence cannot be an exception. However, from the evide nce of PW-3 and PW-4 we find that they specifically identified the accused appel lants, and there is no earthly reason to disbelieve the forthright testimony of eye witnesses to the occurrence, who were local residents well known to the accu sed-appellants. Statement of PW-3 and PW-4, who were local villagers and eye witnesses t 22. o the occurrence could not be assailed by the defence, therefore, cannot be disb elieved. More so, learned counsel for the appellants did not lay emphasis on the evidence of the defense witnesses, who tried in vain to prove the plea of alibi . The accused appellants miserably failed to establish the plea of alibi pleaded by them. The evidence of the eye witnesses to the occurrence namely, PW-3 and PW-4 corrob orated each other to prove the fact of causing grievous assault upon the victim by the accused-appellants.

#23. Learned counsel for the appellant relying on the decision of the Suprem e Court in K. Ramakrishnan Unnithan v. State of Kerala, (1999) 3 SCC 309, subm itted that that the appellant had given one blow but the blow no doubt was qu ite severe, as a result of which there was injury on the head . It is however cr ystal clear that the appellants had no animosity against the injured and they we re involved because of PW 2. The scenario in which the appellants have been st ated by the eyewitnesses to have given one blow on the deceased, it is difficult for us to hold that he gave the blow in question either with the intention of c ausing murder of the deceased or he can have said to have the requisite knowledg e that death would otherwise be the inevitable result.

#24. Referring a decision of the Supreme Court Kanan v. State of Kerala, (1 979) 3 SCC 319, submitted that since T.I.P. was not held by the investigating po lice officer ,the evidence of the injured who identified the accused appellants for the first time in the court cannot be relied on to convict the appellants . In the present case the accused appellants targeted to assault P.W. 3 . But P.W .3 ran away leaving behind the victim at the place of occurrence and escaped. P .W. 3 was a local resident, who knew the accused appellants very well. The occur rence took place on broad day light. There is no reason to disbelieve the testim ony of P.W.3, who saw both the appellants chasing and assaulting the victim. On the top of it another eye witness, namely, P.W.4, also saw the accused appellant s while committing the act. 25. It is well settled that where a witness identifies an accused who is not known to him, in the Court, for the first time, his evidence is absolutely v alueless unless there has been a previous T.I. parade to test his powers of obse rvation. The idea of holding T.I. parade under Section 9 of the Evidence Act is to test the veracity of the witness on the question of his capability to identif y an unknown person, whom the witness may have seen only once. If no T.I. parade is held then it will be wholly unsafe to rely on his bare testimony regarding t he identification of an accused for the first time in Court. 26. However, in the present case, identity of the assailants is not vouchs afed by only the victim. There were other eye witnesses to the occurrence. There fore, holding of T.I.P. is not material in the present case to ascertain the ide ntity of the accused appellants. As submitted by the learned counsel for the appellants, it would be 27. apposite to discuss, if at all ingredients of offence under Section 307 IPC, hav e been made out against the accused appellants. In order to ascertain as to whet her the ingredients of offence under Section 307 IPC are available against the a ccused appellant, it would be appropriate to extract herein below the ingredient s of offence under Section 307 IPC.

#28. I find that the essential ingredients required to be proved in the case of an offence under Section 307 are as follows: (1) That the death of a human being was attempted. (2) That such death was attempted to be caused by, or in consequence of, the act of the accused. (3) That such act was done with the intention of causing death; or that it was d one with the intention of causing such bodily injury as; (a) the accused knew to be likely to cause death; or (b) was sufficient in the ordinary course of natur e to cause death; or that the accused attempted to cause such death by doing an act known to him to be so imminently dangerous that it must in all probability c ause (a) death, or (b) such bodily injury as is likely to cause death, the accus ed having no excuse for incurring the risk of causing such death or injury. 29. Section 307 applies to attempt to murder, in which there has been not merely a commencement of an execution of the purpose, but something little short of a complete execution, the consummation being hindered by circumstances indep endent of the will of the author. The act or omission, although it does not caus e death, is carried to such a length that, at the time of carrying it to that le ngth, the offender considers sufficient to cause death of the victim. It is suff icient if the act was one capable of causing death and there was an intention to cause death. A person commits an offence under section 307 IPC when he has an i ntention to commit murder and in pursuance of that intention, does an act toward s its commission, irrespective of the fact whether that act is the penultimate a ct or not. To convict under this section it is not necessary to show that bodily injury capable of causing death was inflicted. What the Court has to see is whe ther the act, irrespective of its result, was done with the intention or knowled ge and under circumstances mentioned in the section. Attempt need not be penulti mate act. It is sufficient if there is intent coupled with some overt act in exe cution thereof. An attempt is an intentional preparatory action which fails in i ts object, which so fails through circumstances independent of the person, who s eeks its accomplishment. An attempt is an intended, but unfinished, crime, tendi ng, but failing, to effect its commission. This view was expressed in R. v. Kinn eker, L.R. (1906)2 KB 99. 30. Specific intention to commit the crime of murder is a necessary pre-requisite of the section 307 IPC. To bring a case within the ambit of Sectio n 307 IPC, the prosecution has to make out facts and circumstances envisaged by Section 300, IPC. If the ingredients of Section 300 are wholly lacking, there ca n be no conviction under Section 307IPC. Unless it can be said that the intentio n or knowledge of the accused was to cause such bodily injury as would come with in one of the four clauses of Section 300, IPC, he cannot be held guilty of an o ffence under Section 307, IPC. 31. The doctor, PW-7 only proved the grievous injuries sustained by t he victim. In order to establish the offence under Section 307 IPC apart from th e injuries, the prosecution is also required to establish such overt act of the accused, which would reflect the intention of the accused to cause death of the victim. When we turn to the evidence of PW-4, Simanta Baishya, who is an eye wit ness to the occurrence, we find that both the accused persons were standing near the injured, lying on the ground. More so, only one single injury on the head was sustained by the injured. On the top of it, the victim also stated that he had fallen down on the ground on being hit on his head from behind by the accuse d appellants. This evidence of the victim suggested that the deceased was not re peatedly assaulted by the accused-appellants. 32. From the facts of the case, I find that the doctor who had examine d the injured has not given any finding that the grievous injuries sustained by the victim could have caused his death, but for an interruption the victim survi ved. Scrutiny of the evidence of the prosecution witnesses, as highlighted above , do not disclose that the prosecution even made any attempt to prove such inten tion of the accused person to kill their victim. Material in that regard is squ arely absent. Therefore, the conviction under Section 307, IPC cannot be sustain ed. However, the case is squarely covered under Section 326, IPC. Above being th e factual position, I do not see that the prosecution has been able to establish by clear, cogent and unimpeachable evidence that the ingredients of offence und er Section 307 IPC are available against the accused-appellant. The evidence of Sri Rinku Baishya (PW-3) who accompanied the injured PW-2 at the relevant time, revealed that Rinku was the actual target of the accused appellants. In his evid ence, PW-3 has categorically asserted that the accused-appellant, Shri Dhiraj Ba ishya and Golak Baishya by restraining him on the road attempted to assault him and when he fled away from the scene of occurrence, his nephew Jugal Baruah, PW- 2 fell the victim of assault by the accused-appellants.

#33. In view of the above facts and circumstances leading to the occurrence, I am of the considered view that the accused-appellants did not intend to kill t he injured. When PW-3, Sri Rinku Baishya, who was the actual target of assault e scaped by running away from the scene of occurrence, consequently PW-2 became t he victim. The accused-appellants followed and chased Rinku’s companion Jugal, who also ran to save him. The accused-appellants, thus inflicted injury on Juga l from behind and caused grievous injury. Therefore, the sequence of event does not spell out an intention of the accused appellants to cause death of the victi m and the necessary ingredients to attract the offence under Section 307 IPC are missing. At the same time, the evidence of record clearly reveals that the accu sed appellant had assaulted the injured on his head and caused grievous injury. From the fact that both the accused appellants chased the injured from behind to cause grievous injury on his head, clearly follows that both the accused appell ants shared the common intention of causing grievous injuries on the person of t he injured and in such a situation, the accused appellants, instead of being hel d guilty of the charge of attempt to murder under Section 307 IPC ought to have been held guilty of the offence committed by them under Section 326 IPC read wit h Section 34 IPC, by the learned court below. 34. In the result, for the reasons discussed above, I hold that the pros ecution could not substantiate and prove beyond all reasonable doubt that the tw o accused appellants were guilty of the offence under Section 307 IPC read with Section 34 IPC. Nevertheless, evidence on record proved beyond all reasonable doubt that the accused appellants committed offence under Section 326 IPC read with Section 34 IPC. I, therefore, hold the accused-appellants ar e not guilty of the offence of attempt to murder and acquit them of charge under Section 307 IPC read with Section 34 IPC, however, I hold them guilty of an off ence under Section 326 IPC read with Section 34 IPC and convict them accordingly under the aforesaid sections of law.

#35. Learned counsel for the appellants submitted that the appellants have undergone imprisonment for almost 3 years and 7 months, since the date of their conviction and they have realized the mistake committed by them. Therefore lear ned counsel prays for viewing leniently in imposing the sentence on the accuse d -appellants.

#36. Considering the matter in its entirety, I sentence each of the accu sed appellants to undergo imprisonment for four years and to pay a fine of Rs. 2 5,000/- (Twenty five thousand) only each in default to further imprisonment for six months. I further direct that in case the fine amount is recovered from the appellants, the entire amount shall be paid to Jugal Baruah as compensation unde r Section 357 of the Code of Criminal Procedure. Send back the L.C.R together with a copy of this judgement