High Court
Case Details
Crl.A. 159/2006 BEFORE HON’BLE DR. (MRS.) JUSTICE INDIRA SHAH During the trial, charges under Sections 307/341/34 IPC were framed agai
Legal Reasoning
This is an appeal against the judgment and order, dated 13.07.2006 passe d, in Sessions Case No. 8 (JJ) of 2006, by the learned Sessions Judge, Jorhat, c onvicting the accused-appellants under Sections 341/307 read with Section 34 IPC and sentencing them thereby to undergo rigorous imprisonment for a period of 3 (three) years with fine of Rs. 1,000/- for their conviction under Section 307 re ad with Section 34 IPC and simple imprisonment for 1 (one) months for the offenc e committed by them under Section 341 read with Section 34 IPC. 2. The case of the prosecution, in brief, may be described as under: (i) On 27.11.2005, at about 7 PM, Bipul Ch. Bora (victim) was returning home on a bicycle after attending ’Annaprashan’ (function of feeding solid food to a chi ld), when he reached near the Rajamaidam Bridge, the accused persons wrongfully restrained him and pushed him into a nearby drain. One of them attempted to str angulate his neck to cause his death. The victim raised hue and cry and he was rescued by patrolling police personnel who took the accused and victim to the Po lice Station, at Jorhat. FIR being lodged by the victim (Bipul Ch. Bora), Jorha t P.S. Case No. 415/2005, under Sections 307/341/34 IPC was registered. During the investigation, the bicycle used by the victim and the motor cycle used by th e accused at the time of occurrence were seized. On completion of investigation , police submitted the charge sheet under Sections 307/341/34 IPC against the ac cused persons. 3. nst both the accused, to which they pleaded not guilty. 4. I have heard Mr. P. Kataky, learned Amicus Curiae, appearing for the acc used-appellants. I have also heard Mr. B. J. Dutta, learned Addl. Public Prosecu tor, Assam. In support of their case, prosecution examined altogether 8 (eight) witn 5. esses. Thereafter, the statements of the accused persons under Section 313 Cr.P C were recorded. The accused Sadhu Saikia, while denying the allegations, admit ted his presence at the place of occurrence. According to him, at the relevant time, he was returning along with the co-accused riding his motorcycle and as th e victim came in front of his motorcycle he had to apply the brake of his motorc ycle. The accused Sadhu Saikia then asked the victim to repay the money which h e had borrowed from him. In the meantime, police arrived there and they were ta ken to the police station. No defence evidence was adduced on behalf of the acc used persons. 6. PW1 (Bipul Bora) deposed that while he was proceeding on his bicycle, th e two accused wrongfully restrained him and pushed him into a nearby drain. Acc ording to him, accused Radhika pressed his neck in the water of the drain. At r elevant point of time, another accused was standing nearby the drain, when Radhi ka called. When he (victim) attempted to come out of the drain, he was again kic ked by the accused persons. He raised hue and cry and then some police came and rescued him. He sustained injury in his nose. Police took him and the accused persons to the police station and then he lodged the FIR. 8. Corroborating the evidence of PW1, PW2 Bisheswar Gogoi, PW3 Arun Saikia, PW4 Arun Gogoi, police constables deposed that they were on patrolling duty at the relevant time, along with Sub-Inspector Jiten Gogoi (PW8). They heard someb ody shouted (cid:28)Moriloo Oou (cid:29) (I am dying), and when they rushed there, they found t he victim smeared with mud. They also saw the accused persons nearby the victim . The S.I. interrogated the accused persons and took them to the police station . PW5 (Dipak Hazarika) and PW6 (Dulal Hazarika) turned hostile the prosecu 9. tion. However, they admitted they heard commotion and also noticed police at th e place of occurrence. According to PW5, he heard that there was an accident. 10. Near the place of occurrence, there was a residential house of one Arup Kr. Dutta (PW7). He also heard hue and cry raised by the victim at the place of occurrence and rushed there. He saw the police and gathering of people there a nd one person being fully smeared with mud. This witness was also declared host ile. 11. PW8 is the Investigation Officer, and arrived at the place of occurrence along with the patrolling police. He also heard hue and cry raised by the vict im and found the victim and the accused persons there. 12. The presence of both the accused at the place of occurrence has not been disputed. The fact that the victim was recovered from the drain water has been proved by the evidence of PW1, PW2, PW3, PW4, PW7 and PW8. The allegation of t he victim that the accused Radhika attempted to strangulate his neck is, however , not corroborated by any other witnesses. The victim was not subjected to medi cal examination. The allegation that accused persons had attempted to commit mu rder of the victim has not been proved by clinching evidence. Admittedly, the v ictim was associated with the accused Radhika, and he used to borrow money from the accused. Therefore, the defence plea that the accused asked the victim to r epay the money has not proved. There was no reason for the accused to attempt t o commit murder of the victim. However, the prosecution has clearly stated that the accused persons wrongfully restrained the victim and was thrown in the drain . The accused are liable to be convicted under Sections 341 and 323 read with S ection 34 IPC, therefore, maintaining the conviction and sentence under Section 341 read with Section 34 IPC the conviction and sentence passed by the learned t rial Court under Section 307 read with Section 34 IPC is hereby modified, convic ting them under Section 323 read with Section 34 IPC. For the offence committed by them under Section 323 read with Section 34 IPC they shall suffer simple imp risonment for a period of 1 (one) month with fine of Rs.1,000/-, in default, fur ther simple imprisonment for 15 (fifteen) days. The period of sentence as alrea dy undergone by them shall be set off against the period of detention already un dergone by them. 13. 14. aring, for his valuable assistance rendered to this Court. 15. Send back the LCR along with the copy of this judgment and order. The learned Amicus Curiae is entitled to get one day fees for one day he
Decision
With the above modification, this appeal shall stand disposed of.