High Court
Case Details
CRL.A(J) 5/2009 BEFORE HON’BLE DR (MRS). JUSTICE INDIRA SHAH This is an appeal against the judgment and order dated 24th October, 2010 passed by the learned Addl. Sessions Judge, Jorhat, in Sessions Case No. 26/2008 convi cting the appellant under section 448,326,307 IPC and sentencing him thereby to undergo Rigorous Imprisonment for 1 year for the conviction under Section 448 IP C, Rigorous Imprisonment for 5 years for the offence committed under section 326 IPC and also to pay a fine of Rs. 10,000. For the offence committed under sect ion 307 IPC, the appellant was sentenced to undergo rigorous imprisonment for 10 years with a fine of Rs. 25,000, in default further Rigorous imprisonment for 2 years. All the sentences were to run concurrent. [2] arned Addl PP.
Legal Reasoning
Heard Mr. I A Hazarika, learned Amicus Curie and Mr. D D Das, le [3] The prosecution case as disclosed in his F.I.R is that on 10th J une, 2007 at about 5 am, the accused Nizam Ali came to the house of Mohan Nayak. He enquired about Mohan Nayak and as Mohan Nayak was absent his wife Kuloda Na yak stated that he was not available and then the accused inflicted multiple dao blows on Kuloda Nayak causing grievous injuries to her. Hearing the scream of Kuloda Nayak her daughter Madhabi Nayak (PW-3) came out and saw the accused infl icting dao blows. After causing injuries he (accused) left the place along with the dao. The victim was immediately shifted to the Deberapara hospital with th e help of local people. From Deberapara she was referred to Jorhat Civil Hospit al for better treatment. The F.I.R was lodged on 17th June, 2007 by the husband of the victim (PW-1). On completion of the investigation, police submitted cha rge-sheet under Section 447, 326, 307 IPC against the accused appellant. [4] During the trial, charges under Section 448, 326, 307 IPC were f ramed against the accused to which he pleaded not guilty and claimed to be tried . He, however, did not adduce any evidence. [5] PW-2 Kuloda Nayak i.e., the victim, deposed that while her husba nd was away from the house, she was in the house with her daughter (Madhabi Naya k). In the morning at around 6 am the accused called her from outside. She open ed the door and saw the accused holding a Dao in his hand. The accused enquired about her husband Mohan Nayak, which Khuloda informed him that had gone out of home. Then the accused disclosed that he had already killed his wife with the D ao he was holding and he intended to kill her also. Out of fear Khuloda tried t o flee but the accused started inflicting voluntary strokes of the Dao on her. She fell down on the ground yet the accused continued his dao blows on her. She sustained cut injuries on her head and mouth. One of her teeth was broken. Le nding support to the evidence of PW-1, Madhavi Nair (PW-3) daughter of Khuloda s tated that hearing hue and cry raised by her mother she came out of her house an d saw the accused inflicting dao blows on her mother. She also saw her mother l ying in a pool of blood. After causing injuries the accused left the place on h is bicycle and hearing her cry the neighborers came and immediately shifted her mother to a nearby hospital. [6] PW-4, Dolly Patnaik neighbour of Kuloda Nayak, hearing the commo tion, he rushed to the house of the victim and saw the victim lying on the groun d in a pool of blood. He also saw Madhabi, Amrit and Judhistir near the place o f occurrence. He advised them to arrange a vehicle to remove Khuloda to hospita l. PW-5 Alok Kaur, PW-7 Lakshmi Nayak and PW-8 Ganesh Nayak are reported witnes ses. However, they had seen the injuries sustained by the victim. PW-1 is the husband of the victim who on receipt of the information came to the hospital whe re he saw her injuries. He stated that as he was busy with treatment of his wif e, there was delay in lodging the F.I.R Dr. S Rahman, (PW-6) examined the victi Patined found with cut injury under stitch. Scalp :- 4 (cid:29) and 5 (cid:29) shits pl m on 10th June, 2007 at 12 noon and is found as follows:- 1. aced obliquetly on left pariental home. 2. 3. rtical position. 4. 5. ide. 6. 7. Adv :- X-ray from clinical & radiological findings. 3 (cid:29) stitch and lower lip placed horizontally. 5 (cid:29) stitch 3 cm above the right elbow joint placed outersionely and in ve 4 (cid:29) stitch on left arm and elbow places anterenaulby and vertically. 8 (cid:29) stitch horizontally placed 3 cm below right knee joint on outeirous s 2 (cid:29) stitch on left leg placed horizontally about 8 cm below knee joint. Suspected fracture right leg and scalp. [7] In the opinion of the Dr. the injuries were grievous in nature and cause d by sharp instrument. The evidence adduced by the doctor. remained unrebutted as the defense declined to cross-examine him. PW-9 is the Investigating Officer . [8] From the medical report as well as the ocular evidence it appears that t he victim sustained as many as 7 number of injuries including fracture of her ri ght leg and scalp. She sustained injuries on her lower lip also. Therefore, th ere is no escape to the conclusion that the injuries sustained by the victim was grievous in nature. The fact that the victim was assaulted by the accused by m eans of dao has been vividly described by PW-2 and 3. All other witnesses came later and saw the victim lying in a pool of blood with multiple injuries. It is in the evidence of witness as well as the Investigating Officer that the accused committed murder of his wife and on the same day he inflicted grievous injuries to the victim. The weapon was seized in connection with the murder case as sta ted by the Investigating Officer. During the cross-examination the defense fail ed to shake the credibility of the witnesses. No plea of previous enmity or gr udge was taken by the defense. Therefore, the trial court rightly held that it was the accused who came to the house of the victim and inflicted grievous injur ies with an attempt to commit murder of the victim. The accused appellant had been convicted and sentenced separately for e [9] ach offence i.e, under section 448, 326 and 307 IPC. Section 71 of IPC reads as under:- (cid:28)Where anything which is an offence is made up of parts, any of which parts is i tself an offence, the offender shall not be punished with the punishment of more than one of such his offences, unless it be so expressly provided. Where anything is an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished, o r Where several acts, of which one or more than one would by itself or themselves constitute an offence, constitute, when combined, a different offence. The offender shall not be punished with a more severe punishment than the court which tries him could award for any one of such offences. (cid:29) [10] In this case the accused entered into the house of the victim and atte mpted to give grievous injuries to her. Therefore, his conviction under Section 307 IPC will cover all the offences i.e 448, 326 IPC. There is no need of sepa rate conviction and sentence under Section 448 or 326 IPC. Accordingly, the con viction under Section 307 IPC and the sentence imposed thereby the Trial Court f or the is hereby maintained. With this modification, the appeal is disposed of. Send back the LCR alongwith the copy of the said judgment. [11] [12] This court appreciate the assistance rendered by the learned Amicus c urie Mr. I.A Hazarika for which he is entitled to get a fee for one day hearing.