Judgment · High Court · 2012

The appellant herein has been convicted under Sections 448/326/307 IPC vide judg ment dated 11.12.2003, passed by the learned Additional Sessions Judge No.2, Siv asagar in Sessions Case No. 168( S-S) of 2001. After convicting the appellant, the learned Addl. Sessions Judge has sentenced the appellant to undergo RI for 3 (three) months for the offence under Section 448; RI for 2 years with fine of Rs .1,000/- under Section 326 IPC and 3 years RI with fine of Rs.1,000/- for convic tion under Section 307 IPC. In default of payment of fine, the appellant has bee n directed to undergo further RI for 6(six) months.

#2. erred this appeal. Being aggrieved with the conviction and sentence, the appellant has pref Heard Mr. M Biswas, learned Amicus Curie for the appellant who is assist 3. ed by Mr. PJ Phukan, learned counsel for the appellant. Also heard Mr. K Munir, learned Addl.P.P. for the State. I have also gone through the impugned judgment and evidence on record.

#4. From the evidence on record, it appears that altogether, 9 (nine)witness es were examined by the prosecution. These witnesses include one of the two vict ims, his wife, villagers from the locality, doctors and the I.O. Thereafter, the learned Addl. Sessions Judge also summoned the Assistant Professor of Orthopaedi c Department, AMCH, Dibrugarh as well as the second injured Jadab Rajkonwar and recorded their testimonies as CWs 1 and 2 respectively. These witnesses were als o thoroughly cross examined by the learned defence counsel. The defence case was that due to previous enmity, a false case has been 5. framed. Though the accused stated in his statement under section 313 CrPC that h e will give evidence in defence but no such defence evidence was tendered. After going through the evidence on record, the learned Addl. Sesisons Judge has accep ted the prosecution story and he has convicted the appellant as indicated above.

#6. It is needless to mention here that the injured persons and victims are the best witnesses since they are less likely to implicate an innocent person sh ielding the real culprit. In the case before me, both PW-2 and CW-2 (injured per sons) have categorically stated that they were assaulted by the appellant with a sharp weapon like dao.

#7. PW-1 is the wife of injured Madhab Rajkonwar. She claims herself to be t he eye witness of the incident. However, in the cross-examination, PW-1 has depo sed that at the relevant time, she was in the paddy filed at a distance of ‰ km. Even then, the testimony of PW-1 cannot be thrown overboard. At least she must have returned home within moments and must have been reported about the inciden t by the husband and on that basis, FIR was lodged naming the appellant as the a ssailant.

#8. PW-3 is the co-villager and he is another eye-witness to the incident. T his witness has stated that at about 12.30 pm, he saw the appellant coming on bi cycle from the house of injured Jadab shouting that if they do not withdraw a pe nding case, he will finish the injured Jadab. Hearing this warning from the app ellant, the witness went to the injured’s house and he was told that the accused was insisting to withdraw the earlier case. After reporting so, the injured Jad ab started to go to the police station and, in the meanwhile, the appellant agai n arrived at the scene and assaulted both Madab and Jadab( brothers) . The witne ss has further deposed that he then took up a lathi to chase away the appellant I do not find any penetrating cross-ex and then the appellant fled away. amination to take a view that PW-2 has given a tainted evidence. PWs 4, 6 and 7 have virtually given heresay evidence .

#9. A suggestion was given to all the non-official witnesses that a false c ase was framed on the basis of earlier injuries. This defence plea must have bee n taken on the ground that the injury report of the second injured, namely, Jada b showed that he was admitted at AMCH, Dibrugarh on 29.6.2000 and was discharged on 22.8.2000. Since, it was the prosecution case that incident took place on 28 .7.2000 and since injury report of the hospital mentioned that the second injure d was admitted in the hospital in the month of June, 2000, the aforesaid plea of filing a false case must have been taken. However, CW-1 subsequently, clarified that inadvertently, the date 29.6.2000 was mentioned in the injury report inst ead of 29.7.2000. I am also of the view that the plea of false case on the basis of previous injury must have been raised because the prosecution witnesses had admitted about an earlier case filed by the second injured Jadab. Strangely, the accused did not make any request to the Court to call for the records of earlie r case to prove that Jadab was not assaulted on 28.7.2000 and that the allegatio ns of assault upon him was based on the previous incident.

#10. In view of corroborative evidence from the independent witnesses as well as from the doctor, I find no difficulty to hold that the appellant had committ ed the offence of inflicting grievous injury upon Madab and Jadab, trespassing i n their house compound. Hence, the conviction recorded by the Additional Session s Judge under Section 448/326 IPC are hereby maintained.

#11. With regard to the conviction of the appellant under Section 307 IPC, th e learned counsel for the appellant submitted that to bring the offence within t he mischief of 307 IPC, the prosecution must establish that the assailant had th e intention to commit murder of the person or that he had the requisite knowledg e that due to the injuries, the victim may die.

#12. According to the learned counsel for the appellant, PW-2 was not referre d to medical college hospital though he had sustained injury on the forehead. B esides this, PW-2 has admitted that he was released from the hospital within fou r days and this has also been stated by the doctor. The other injured sustained cut wound on the wrist joint and he was not assaulted on a vital organ. Under th ese circumstances, conviction of the appellant under section 307 is hereby set a side.

#13. In the result, the appeal stands partly allowed.

#14. The conviction of the appellant under Section 307 IPC is hereby set asid e. The conviction of the appellant under Section 448/326 IPC along with the sent ence recorded by the learned Addl. Sessions Judge are hereby maintained.

#15. The appellant is directed to surrender before the second Additional Sess ions Judge, Sivasagar immediately to serve out the remaining period of sentence.

#16. The Registry is directed to return the L:CR with a copy of this judgment.

#17. The learned Amicus Cure shall be entitled to one day’s fees.