High Court
Case Details
Crl.A. 92/2005 BEFORE HON’BLE MR JUSTICE P. K. SAIKIA This appeal is directed against the Judgment and order dated 07.03.2005, passed by the learned Sessions Judge, Tinsukia in Sessions Case No. 9 (M)/2004 convict ing the accused/appellant under Section 307 IPC and sentencing him to suffer R. I. for 10 years and to pay a fine of Rs. 5000/- in default to undergo R.I. for another three months. 2. Being aggrieved by and dissatisfied with the aforesaid Judgment, the acc used/appellant Sri. Raju Dowarah has preferred this appeal citing several infirm ities in the Judgment, under challenged. The brief facts necessary for disposal of this appeal are that on 06.12. 3. 2003 at about 2:30 p.m. one Sri. Bipul Dowarah was sleeping in his poultry shop, situated at I.O.C. market at Digboi. Around such time, accused Sri. Raju Dowara h came there and started attacking him with sharp weapon inflicting grievous wou nds on his person. Having assaulted him with sharp weapon, accused Sri. Raju Dowarah immedi 4. ately fled there-from. Hearing hue and cry, raised by the victim, people nearby came thereto and took him to hospital. He was, thereafter, treated at different hospitals over a very long period of time. One Miraj Ahmed (PW3), a shopkeeper, informed the police over phone about the incident in question. 5. On the basis of such information, Officer-in-charge, Digboi police stati on, made a G.D. Entry No. 176. In that information, it was stated by the aforesa id Miraj Ahmed that one poultry shop keeper attacked and injured another poultry shop keeper. Acting on such telephonic information, A.S.I. Sri. Prafulla Kakat i, visited the site to make preliminary investigation. 6. A.S.I. Sri. Prafulla Kakati, also recorded the statement of witnesses, d rew a sketch map of the site and thereafter, he detained the accused from nearby market at about 4:00 p.m. same day. On basis of information, furnished by the a ccused, a dao was recovered from the drain. The dao, so recovered, was said to b e the dao, used in committing the crime. Subsequently, the F.I.R. was lodged by the mother of the victim on the day of the incident itself. On the basis of such F.I.R., Digboi P.S. Case 143/03 under section 326/3 7. 07 IPC was registered. The case was thereafter investigated by S.I. Sri. Moni M ohan Koch. During the course of investigation, Moni Mohan Koch formally arrested the accused in connection with the case aforesaid. On the completion of investi gation, the I.O. submitted charge sheet under section 326/307 IPC against the ac cused person and forwarded him to the court to stand his trial there.
Legal Reasoning
8. Since the offence under Section 307 I.P.C. is exclusively triable by the Court of Sessions, the learned S.D.J.M., Margherita committed the case to the C ourt of Sessions. On the receipt of the case on commitment, learned Session Judg e, Tinsukia framed charges under Section 307/326 I.P.C. against the accused per son and charges, so framed, on being read over and explained to the accused pers on he pleaded not guilty and claimed to be tried. 9. During, trial, prosecution has examined as many as 10 witnesses includin g the Medical Officer, I.O. as well as informant of the case. The statement of t he accused person under section 313 Cr.P.C. was recorded. He, however, on being required, declined to adduce any evidence on his own. The learned Trial Court af ter hearing the parties convicted and punished the accused/appellant as aforesai d. It is that Judgment which has been assailed in the present appeal. 10. Opening up the argument Mr. Z. Alam, learned counsel for the accused/ap pellant, has submitted that Judgment, rendered by learned Trial Court, is unsust ainable in law for reason more than one. They are:- i) The entire prosecution is based on solitary evidence of victim but his eviden ce is unreliable for being inconsistent with the evidence of other witnesses on material point; ii) There is specific evidence on record in the form of testimonies of PW9 to sh ow that he arrived at the P.O. first in point of time and that victim enquired h im if he knew the person who inflicted several wounds on the person. this only s hows that victim was not aware of his assailant; iii) Evidently and admittedly, there was a dispute between the parties and such dispute propelled the mother of the victim to lodge the case falsely against th e accused person; iv) The F.I.R. was lodged during the course of investigation and it makes the F. I.R. inadmissible in law which in turn administered a death blow to the prosecut ion case; v) The motive of the accused person in committing the crime was not established, which was a sine qua non for the case, under consideration. vi) PW3 and PW9 claim to have heard the alleged incident from the victim himself but victim did not utter a word about his narrating the incident in question to the PW3 and PW9. That was fatal to the prosecution cause and vii) There was absolutely no evidence on record to show that accused ever attem pted to kill the victim on the noon in question. Inspite of the above being the situation, learned Trial Court held the accused guilty of offence under 307 I.P. C. 11. However, all those infirmities were totally ignored by the learned Trial Court and came to the conclusion that prosecution has successfully proved the c harge under section 307 I.P.C. against the accused person and therefore, convict ed and punished the accused person as aforesaid. Learned counsel for the appell ant has, therefore, urged this Court to acquit the accused person on setting asi de the judgment of the Trial Court. 12. On the other hand learned Addl. PP, Ms. B. Saikia has submitted that the Judgment, rendered by Trial Court is based on well established facts on record and as such Judgment was rendered having regard to the law which holds the fiel d. She, therefore, submits this Court to affirm the Judgment of the Trial Court on dismissing the appeal. 13. I have heard the arguments, advanced by learned counsel for the parties. However, in order to appreciate the evidence on record, I find it necessary to have a brief review of the evidence on record and the evidence rendered by the v ictim is first taken up for consideration. Victim Sri. Bipul Das was examined as PW 6. According to him, on 06.12.2003 at about 2:30 p.m. he was having a nap i n his poultry shop. The accused suddenly made an entry into his shop and assault ed him with a dao on his face, head and other body parts. After assaulting him q uite brutally, the accused fled there-from. 14. However, the shop keeper in the vicinity of his poultry shop rushed to h is shop and took him to I.O.C. hospital in a Maruti Car. He remained in the hosp ital for about nine days and thereafter, he was taken to A.M.C.H. Dibrugarh for better treatment where he was hospitalized for about 16 days. It is also in his evidence that he has a poultry shop at the I.O.C. market, Digboi. On the other h and, the accused too had a shop at a distance of 30 ft from his shop. 15. In his cross examination, he has stated that there are about 5-6 other s hops in an around the place of occurrence which were owned by Farukuddin Ali Hus sain, Krishna Sonar, etc. It is also in his evidence that at the time when the incident occurred, he was almost asleep on a bed inside his shop. He did not hav e any enmity with the accused person. The suggestion that his mother lodged the case falsely against the accused person was denied by PW6. 16. PW9, Smti Baby Borah is the owner of a stationary shop, situated at Digb oi I.O.C. market. According to her, on the fateful day at about 2:00/2:30 p.m. s he heard a commotion in the shop of Bipul Das. She also heard people shouting th at Raju had assaulted Bipul. She immediately rushed to the place of occurrence a nd found Bipul lying injured in his poultry shop. He was so badly injured that h is entire body was drenched with blood. 17. In no time, many people came to the place of occurrence and they immedia tely shifted the injured to hospital in the car of one Miraj Ahmed. She, however , could not accompany him to hospital as her clothes got stained with blood from the wounds of the victim. She also noticed that Police Officers came to such pl ace within 10-15 minutes of the incident aforesaid. She came to know from the Police Officers that the accused had already s 18. urrendered before the Police. After sometime, the injured was taken to A.M.C.H., Dibrugarh for better treatment. In her cross examination, she has stated that s he was the first person to reach the place of occurrence, that at the time of as sault, the victim was asleep and that victim enquired her who had assaulted him. 19. PW7, Smti. Shoba Das is the mother of the victim. According to her, the accused was a friend of her son who opened a poultry shop at Digboi I.O.C. marke t day’s before the alleged incident. The incident in question occurred on 06.12. 2003. On that day, she was in her house. While she was in her house, she came t o know that accused had assaulted her son. She went to the hospital and found he r son in a dying condition. When she enquired after 3-4 days of the incident, vi ctim told her that accused had assaulted him. 20.
Legal Reasoning
It is also in her evidence that before the incident, an altercation took place between the accused person and one Bijoy, her younger son, over the purch ase of poultry. She then advised her son not to purchase poultry from the shop o f the accused person in future. In that connection, she lodged an F.I.R. with th e police same day which was proved as Ext. 2. The suggestion that she did not te ll the I.O. that there was an altercation between the accused and her younger so n was denied by PW 7. PW3, Sri. Miraj Ahmed, a shopkeeper, also deposes that on the fateful af 21. ternoon, a commotion took place in the I.O.C. market, Digboi and people started telling each other that Raju Duwarah has assaulted Bipul Das. On getting such in formation, he rushed to the place of occurrence and saw victim lying in his shop in an injured condition. He also saw profound bleedings from the wounds on his body. 22. Noticing the incident, he informed the police about such incident over p hone. Thereafter, he again came back to the P.O. and took the victim to I.O.C. Digboi, hospital for treatment. Later, he came to know from the victim that the accused had assaulted him. The suggestion that he did not disclose the I.O. tha t the injured told him that the accused had assaulted him was denied by PW3. 23. PW8, Smti. Hema Baruah, also a business women, has deposed that she had a shop in New Market, Digboi. On 06.12.2012, at about 3:00 p.m. she heard hulla from the side of the shops of victim and that of the accused person. She, theref ore, rushed to the place of occurrence and found Bipul Das in an injured conditi on with blood coming out from his body. His entire clothes were drenched with bl ood. She also met Smti. Baby Borah (PW9) and some other persons at such place. S uch people told her that Bipul was assaulted by Raju Dowarah and having assaulte d him, he fled away. 24. Thereafter, Bipul was taken to hospital where he was kept for about 20-2 5 days. It is also in her evidence that at the instance of the accused, Police r ecovered a dao which he threw in a nearby drain. It was seized in her presence. In her cross examination, she denied the suggestion that she did not disclose th e I.O. that one dao was recovered from the drain at the instance of the accused person. PW4, Sri. Krishna Sonar and PW5 Md. Farukuddin Ali are shopkeepers who h 25. ad their shops in the vicinity of the place of occurrence. According to them, o n the fateful afternoon, there was a quarrel between Raju Das and Bipul Duwarah and due to such quarrel Raju got injured. It is also in the evidence of PW5 that he was asked to put a signature on a document which he proved as Ext. 3. 26. PW2, Sri. Nirmal Bhuyan deposes that on 06.12.2003, at about 3:30 p.m., he heard that there was a quarrel in the I.O.C. Market, Digboi, that a person go t injured and that he was hospitalized in the meantime. He went to the hospital and on the information, furnished by the mother of the victim, he wrote an F.I.R . which was proved as Ext. 2. 27. The doctor who attended the victim at I.O.C. Digboi, hospital was Dr. B. P. Sarmah, and he was examined as PW1. According to him, on 06.12.2003, he was working at I.O.C. Digboi, hospital. On that day, he examined one Bipul Das, aged 30 years and found the following :- (cid:28)i) Incised wound left side of the face 20X5X5 cm cutting the facial bones. ii) Incised wound left arm 5X5X3 cm with fracture humerus. iii) Incised wound left wrist 3X1X1 cm. iv) Incised wound left chest at the back cutting the muscles and multiple ribs a nd pleurae causing haemopneumothorax 10X10X5 cm. v) Incised wound right side and middle of the back of chest 10X10X5 cm (cid:29). 28. According to him all wounds were fresh and injury No. 1, 2 and 4 were gr ievous in nature and rests of the injuries were simple. Ext.1 is his report and Ext 1(1) is his signature. 29. PW10, Sri. Moni Mohan Koch is the I.O. According to him, on 06.12.2003, he was attached to Digboi Police Station. Digboi P.S. Case No. 143/03 under sect ion 326/307 I.P.C was first investigated by A.S.I. Prafulla Kataki. After conduc ting preliminary investigation he handed over the case diary to the Officer-in-C harge, Digboi P.S., who then entrusted him to investigate the case. Being so en trusted, he started investigating the case, also formally arrested the accused person, interrogated him and sent him to the Judicial Custody. In due course, the statements of the witnesses were recorded and on goin 30. g through the statements of the witnesses, he submitted charge sheet under secti on 326/307 I.P.C. against the accused person. It is also in his evidence that on e Miraj Ahmed informed the Officer-in-Charge, Digboi, P.S. about the incident af oresaid over phone. 31. This information was recorded vide G.D. Entry No. 176. According to this witness, the accused was arrested from I.O.C. Market on the same day at about 4 :15 p.m. A.S.I. Prafulla Kataki also recovered a dao from the drain on being sho wn by the accused person. In his cross examination, he admitted that PW3 told hi m that the victim was assaulted and injured by the accused person. 32. Above being the evidence on record, let us see how far such evidence mak es out the allegations brought against the accused person. On a very careful per usal of PWs, I have found that PW6 quite categorically stated that on the aftern oon in question, when he was having a nap inside his poultry shop at I.O.C. Digb oi, Market, the accused entered into the room and attacked him with a dao for wh ich he got severely injured and was required to be shifted to hospital for treat ment. It is also in his evidence that he remained in different hospitals undergo ing treatment for about 25 days. 33. Though PW6 was subjected to a threadbare cross examination, there is abs olutely nothing on record to show that the account of events, so made by PW6 rev ealing that the accused subjected him to a string of assault with a dao targetin g his face, hands and other body parts was not true for any reason whatsoever. T he Doctor who evidently found as many as five fresh cut wounds on his body when he examined him at I.O.C. hospital on 06.12.2003 doubly affirms the claim of the PW 6. On the other hand, the claim of PW6 that assault, mounted on him, left h 34. im injured, that he sustained bleeding wounds and his person, that he was admitt ed to hospital immediately and that he remained in hospitals for a long point of time were corroborated by PW2, PW3, PW4, PW5, PW7, PW8 and PW9. 35. Here, it is worth noting that the accused/appellant had referred me to s ome contradictions in the testimonies of some of the PWs. However, the accused made no effort to substantiate such alleged contradictions. On the other hand, some contradictions, pointed out in the evidence of the PW3 and PW 5, are found to be far too inconsequential in affecting the credibility of PW3 and PW 5. Suc h evidence in my considered opinion, clearly demonstrates that the evidence, ren dered by the PWs does not suffer from any serious infirmity. 36. The prosecution has, however, come under sharp criticism on some other c ounts as well which I have already detailed herein before. The appellant has fir st contended that the F.I.R. becomes inadmissible in law and such an infirmity i n the prosecution case shakes the very foundation of prosecution case. This is far from the truth. 37. We have already found that it is true that F.I.R. was lodged while inves tigation was already on. But then, the evidence of PW 6, coupled with other tes timonies on record, very firmly demonstrates that the accused did assault and in jured the victim at the place of occurrence on 06.12.2003 in the afternoon. The prosecution case, thus, stands established without the aid of Ext. 2, the F.I.R . Being so, inadmissibility of the F.I.R., in no way affects the case under cons ideration. 38. It has also been alleged that though PW10 claims that the dao, allegedly used in committing the crime was recovered from the drain nearby the place of o ccurrence at the instance of accused himself but persons well acquainted with th e recovery of the dao were not examined by the prosecution side and non examinat ion of all the persons well acquainted with the recovery of the dao makes it dif ficult on the part of the Court to come to a conclusion that a dao was recovered from a drain nearby the place of occurrence, and that too, at the behest of the accused person ---- argues learned counsel for the accused/appellant. It is true that the person(s) who allegedly saw the recovery of the dao 39. from the drain at the behest of the accused person were not examined. But then, as stated above, the prosecution case stands established without the recovery o f dao. Our foregoing discussion has made it clear and it needs no further reite ration here. Therefore, prosecution case cannot be thrown away only for the fai lure of the prosecution to prove the recovery of dao at the behest of the accuse d person. 40. The evidence on record very firmly shows that soon after the alleged inc ident, witnesses examined here, came to know from various people at the place of occurrence that the accused had attacked and injured the victim in his own shop . There is absolutely nothing on record to show that the claims, so made by PWs , were not true. In my considered opinion, such statements which were made by t he people, present in the place of occurrence, just after the alleged incident i n view of provisions, incorporated in section 6 of the Indian Evidence Act, beco me relevant and it serves to show that the victim sustained wounds at his own sh op on the afternoon in question and such revelation further fortifies the claim of prosecution that accused was the author of the crime under consideration. The learned counsel for the accused/appellant has pointed out that the m 41. otive of the crime was not established and in that connection, he had referred m e to that evidence of PW6. He (PW6) is heard saying that he did not know as to w hy the accused had assaulted him. But then, there is evidence in the form of te stimony of PW9, which remains totally unchanged, to show that there was a quarre l between the accused and the brother of the victim over the purchase of poultry before the alleged incident. 42. Such facts and circumstances, in my opinion, clearly establish that the accused had a motive in attacking and injuring the victim at the place of occurr ence on that day aforesaid and such a revelation becomes one more testimony of a ccused person being the author of the crime under consideration. 43. Now, the question is whether on the materials on record, as accused can be held guilty of offence under section 307 IPC. I have found that at the time i n question, the victim was all alone in his shop sleeping. The accused was armed with weapons as dangerous as a dao. All these show that if the accused had an i ntention to kill the victim on the afternoon, aforesaid, he could have easily ki lled him and could have escaped there-from without being noticed. But he did not do so. Instead, he had inflicted several wounds on the b 44. ody of the deceased some of which are found to be grievous. But the above facts, in my considered opinion, no way takes the case of prosecution within the four walls of offence under Section 307 I.P.C., more so, when there is no evidence to show that any intervening act/acts save the victim from being killed. 45. Accordingly, in my considered opinion, prosecution has successfully pro ved the ingredients of offence under section 326 IPC instead since Doctor has o pined that some of the wounds were grievous in nature, caused by sharp object. B eing so, the accused ought to have been convicted under Sections 326 IPC and not under Section 307 IPC as has been done by the learned Trial Court. 46. Accordingly, the accused stand convicted of offence under Section 326 IP C. He is, however, sentenced to suffer R.I. for 4 years with a fine of Rs. 5000 /- in default R.I. for another period of 3 (three) months. 47. The period which he had already spent in jail is to be set off against t he sentence, imposed. With the above modifications, the impugned Judgment is af firmed. Appeal is partly allowed. 48. 49. ely to serve out the sentence, imposed. Return the L.C.R. forthwith. Accused is directed to surrender before the concerned authority immediat