High Court · 2012

and their mother, Prabhawati, protested thereto. A dispute, thus, arose between the parties concerned. On 24.09.2003, accused asked Miniki, who was maid servant of Pitambar, to call his mother, Prabhawati, and his brother, Pitambar, to his (accused-appellant’s) house. On receiving the information, when Pitambar and hi s mother were proceeding, at about 5 pm, on 24.09.2003, towards the house of the accused, who used to reside nearby, the accused came to the road and gave blows with a dao on his mother, Prabhabarti. When Pitambar, brother of the accused, i ntervened and tried to save his mother, the accused gave blows with his dao on his brother too. The injured were shifted to a local Nursing Home at Silapathar. An Ejahar was written at the instruction of injured Pitambar and the same was l odged with the police at Silapathar Police Station. Treating the said Ejahar as First Information Report, a case, under Sections 326/307 IPC, was registered aga inst the accused and, on completion of investigation, police laid charge-sheet a gainst the accused under Sections 326/307 IPC. 3. ccused. To the charges, so framed, the accused pleaded not guilty. During trial, charges, under Sections 326/307, were framed against the a

4. In support of their case, prosecution examined altogether seven witness es. The accused was, then, examined under Section 313 Cr.PC and, in his examinat ion aforementioned, the accused denied to have committed the offences, which wer e alleged to have been committed by him, the case of the defence being that of t otal denial. The defence also adduced evidence by examining one witness. On havi ng found the accused guilty of the offence under Section 326 IPC, the learned tr ial Court convicted him accordingly and pass sentence against him as mentioned a bove. As far as the charge, under Section 307 IPC, was concerned, the accused wa s held not guilty and was accordingly acquitted. Aggrieved by his conviction, un der Section 326 IPC, and the sentence passed against him, the accused has prefer red this appeal.

5. ccused-appellant, and Mr. K. Munir, learned Addl. Public Prosecutor, Assam. I have heard Ms. M. Kechi, learned counsel, appearing on behalf of the a While considering the present appeal, it needs to be noted that besides 6. the two injured, namely, Pitambar Bora (PW1) and his mother, Prabhawati Bora (PW 2), Miniki Rajbongshi (PW3), who was maid servant of Pitambar Bora, has been exa mined as eye witness to the occurrence.

7. According to the evidence of PW1, on the day of the occurrence, at about 5 pm, his maid servant, Miniki Rajbongshi (PW3), came home and asked him to go to the house of the accused stating that the accused had called him and his moth er. As the accused used to live nearby, though separately, PW1, accompanied by P W2, proceeded towards the house of the accused, but when they were so proceeding towards the house of the accused, the accused appeared on the road, came in fro nt of PW1 and PW2 and gave, without uttering a word, blows with a dao on PW2. As PW1 intervened to separate his mother from the accused, the accused gave PW1 to o blows with his dao on his head, hands, shoulder, etc. Both PW1 as well as PW2, thus, sustained injuries and fell down on the ground. The occurrence was witnes sed by their maid servant, Miniki (PW3). The neighbouring people, according to t he evidence of PW1, gathered at the place of occurrence and removed PW1 and PW2 to Vishal Nursing Home, Silapathar. On the way to the hospital, the injured were taken to Silapathar Police Station, where he lodged the FIR (Ext.1).

8. It is in the evidence of PW1 that his father had expired and the landed properties, which were in the name of his father, had not been partitioned betwe en the four brothers and as the accused wanted to sell the land and his brothers were not allowing, a dispute had arisen and the assault on them (PW1 and PW2) w as because of the said land dispute.

9. Though cross-examined, at length, nothing of significance could be elici ted by the defence to show that what had been deposed to by PW1 was untrue or fa lse.

10. Broadly in tune with the evidence of PW1, his mother (PW2) has deposed t hat on the day of the occurrence, in the evening hours, their maid servant, Mini ki (PW3), asked her to go to the house of the accused, because the accused had c alled them, whereupon she (PW2) started for the house of the accused along with her son, Pitambar (PW1), and, as soon as they came in front of the house of the accused, the accused attacked them with a dao and she sustained injuries on her neck, arms, waist and legs and when her son (PW1) tried to save her life, accuse d attacked PW1 too. It is in the evidence of PW2 that PW1 sustained injuries ove r his arms and head and both of them fell down on the ground, an auto-rickshaw w as arranged and they received treatment at Government hospital. It is also in th e evidence of PW2 that she sustained cut injury over her back with fracture of b ones and had to undertake treatment for about 1 ‰ months. It is further deposed by PW2 that the accused wanted to sell the joint property left by her husband an d, on raising objection by them, the accused assaulted them.

11. Close on the heels of the evidence of PW1 and PW2, PW3 has deposed that on the day of the occurrence, when she was coming back to the house of PW1 from a shop situated in their village, accused met her on the road and asked her to i nform PW1 and PW2 to come to the house of the accused and she accordingly inform ed both PW1 and PW2 that the accused had called them to his house. It is in the evidence of PW3 that when PW1 and PW2 reached the road leading to the house of t he accused, the accused attacked his mother (PW2) with a dao and when PW1 protes ted, the accused attacked him (PW1) too with the dao. It is also in the evidence of PW3 that PW2 sustained injuries over her neck, arms, hands and legs and PW1 sustained injuries on his head, hands and arms. It has been further deposed by P W3 that their co-villagers arranged an auto-rickshaw and removed the injured to the hospital.

12. Though both, PW2 and PW3, were put to cross-examination by the defence, nothing really was elicited from their cross-examination to show that what they had deposed were untrue or unbelievable.

13. Thus, the evidence of PW1, PW2 and PW3 remained unshaken and their evide nce clearly prove that the accused had assaulted PW1 and PW2 by giving them blow s with dao and injured them. As regards the evidence of PW4, who is one of the co-villagers of the pa 14. rties concerned, suffice it to point out that his evidence neither supports the prosecution’s case nor cause damage to the prosecution’s case inasmuch as his ev idence is only to the effect that he was, on the day of occurrence, not at Bihpu ria (i.e., the place of occurrence) and he was reported about the occurrence by PW2. His evidence can, thus, neither be in favour of the accused-appellant nor i n favour of the State. So far as the evidence of PW5 is concerned, his undisputed evidence is t 15. hat he examined, on 24.09.2003, at Amguri PHC, Prabhawati Bora (PW2) and found t he following injuries: (cid:28)1. Fresh penetrating wound (stabbing) of size 2 cm x 3 cm with profuse bleeding over left supra clavicle region cutting trapezoids muscle. Suture given.

2. Irregular almost triangular cut injury at the posterior aspect of the left ax illa. Suture given. (cid:29) 16. d by sharp cutting weapon. In the opinion of the doctor (PW5), the injuries were grievous and cause As regards PW1, PW7 claimed that he found the following injuries on the

17. person of PW1: (cid:28)1. Fresh, clean cut injury on the left parietal region (scalp injury). Profuse bleeding. Size 10 cm x 1 ‰ cm x 1 cm. 2. Fresh stab wound on the right forearm (extensor surface). Profuse bleeding. S ize 4 cm x ‰ cm x ‰ cm. (cid:29)

18. on. 19. In the opinion of PW7, injuries on PW1 were caused by sharp cutting weap While considering the evidence of PW1, PW2 and PW3, it needs to be noted that though PW1 and PW2 may be called interested witnesses, PW3 cannot be regar ded as an interested witness and she is, essentially, an independent witness. Sh e has fully corroborated the evidence of PW1 and PW2 and thereby cemented the un shaken evidence of PW1 and PW2 that they were assaulted and injured by the accus ed-appellant.

20. There is, undoubtedly, as noted by the learned trial Court, land dispute between the parties concerned. The fact remains that enmity, arising out of suc h dispute, is a double-edged weapon and the dispute can furnish motive for the a ssaults, which took place on the persons of PW1 and PW2 at the hands of the accu sed-appellant. This apart, being injured, PW1 and PW2 would not have implicated the accused and allowed thereby the real culprit to go scot-free.

21. In the circumstances indicated above, there can be no escape from the co nclusion that the accused-appellant did assault, as described above, PW1 and PW2 by a dao and caused injuries on their persons. At this stage, let me turn to the evidence of DW1. 22. Turning to the evidence of DW1, it may be noted that according to him, o 23. n the day of the occurrence, there was an altercation between the parties, i.e., PW1 and PW2, on the one hand, and the accused-appellant, on the other, in front of his shop and there was no incident of marpit (mutual assault). Notwithstandi ng the evidence, so adduced by DW1, the fact of the matter remains that even his evidence is an admission of the fact that there was an altercation between the parties concerned and there was no reason for the learned trial Court to disbeli eve the evidence of PW1, PW2 and PW3, when their evidence clearly showed that PW 1 and PW2 sustained injuries at the hands of the accused-appellant.

24. Coming to the nature of injuries sustained by PW1 and PW2, it needs to b e noted that as far as PW1 was concerned, the doctor (PW7) found fresh, clean cu t injury on his left parietal region (scalp region), the size of the injury bein g 10 cm x 1 ‰ cm x 1 cm. This injury on the left parietal region being on the sc alp, it is clear, as correctly noted by the learned trial Court, that the bone w as cut. Such cutting of bone was nothing, but breaking of bone and the same amou nted to fracture of the bone. Thus, the injury, sustained by PW1, squarely fell within the definition of grievous injury as contained in Section 320 IPC. The in juries, sustained by PW1, being grievous in nature, the conclusion, reached by t he learned trial Court, to the effect that the accused has committed an offence under Section 326 IPC cannot be said to be wrong or incorrect.

25. Because of what have been discussed and pointed out above, I do not find any infirmity, legal or factual, in the finding of guilt reached against the ac cused-appellant and/or his conviction under Section 326 IPC. As far as the sente nce passed against the accused-appellant is concerned, I do not find that in the face of the nature of injuries, which the two injured had sustained, the senten ce, passed against the accused-appellant, can be said to be illegal, harsh or un reasonable. The sentence, too, does not, therefore, warrant any interference. Th ere is, thus, no merit in this appeal. The appeal is hereby held to be wholly wi thout merit and the same shall accordingly stand dismissed.

26. The accused-appellant is hereby directed to surrender, forthwith, in the learned trial Court in order to serve out the sentence of imprisonment passed a gainst him.

27. Send back the LCR.