High Court · 2012

HON’BLE MR. JUSTICE P K MUSAHARY JUDGMENT & ORDER(Oral) o Mr. K Munir, learned Addl. Public Prosecutor, Assam for the Respondent-State. Heard Mr. B K Bhagawati, learned counsel for the appellant and als

2. This appeal has been preferred against the judgment dated 28.2.0 5 passed by the learned Addl. Sessions Judge, Kamrup, Guwahati in Sessions Case No.174(k)/04 convicting under Section 323 IPC and sentencing to undergo one ye ar rigorous imprisonment and also convicting under Section 341 IPC and sentenci ng to undergo one month simple imprisonment which shall run concurrently.

3. The story projected by the prosecution is that on 30.10.98 at ab out 5 pm when informant’s husband Sri Khagen Deka was going towards Salmara chaw k for marketing and when he arrived at the gate of the appellant, the later, who was hiding nearby with a dagger in hand from before, out of grudge wrongfully r estrained and hit him on various parts of his body with the said dagger in an at tempt to cause death by causing grievous injury to his person. The injured was admitted in a local State health dispensary for his treatment. A cash amount of Rs.1000/- was found missing from the possession of the victim after the said in cident. Receiving the written FIR a crime being Baihata PS.Case No.171 of 1998 w as registered under Sections 341/326/307/379 IPC. On completion of the investiga tion the charge-sheet was submitted against the appellant under the aforesaid Se ctions of law. On committal, the learned trial court framed charges under the sa id sections of law. The appellant pleaded not guilty and claimed to be tried. He was examined under Section 313 Cr.P.C. but declined to adduce any evidence. To prove the charge the prosecution examined six witnesses and on the basis of the evidence and materials on record, the learned trial court convicted and sentence d the appellant as stated earlier.

4. First of all, it is to be noted that there is no eye witness to the alleged occurrence. The informant, PW-1 is the wife of the victim. She has no personal knowledge. She filed the Ejahar on the basis of the information rec eived from her injured husband who was examined as PW-2. His evidence is that h e was restrained by the appellant at a place little bit away from Salmara main chawk while he was returning home. He met the appellant who was coming in a bic ycle. Seeing him he stopped and got down from the bicycle and straight way caug ht hold of his chest demanding money for having the drinks. When the victim re fused to pay the money the appellant hit him by a dagger/knife at his abdomen. T hen the victim jumped into a nearby pond to save himself. He came out from the pond and made hue and cry attracting some people. Hearing his cry some people c ame to the place of occurrence. The victim, in the meantime, lost his sense an d was shifted to a local hospital.

5. Although as per evidence of PW-2 the appellant came in a bicycle and hit the victim by a dagger, the I.O. did not seize the bicycle from the ap pellant. The IO, who was examined as PW-6, in his evidence did not mention anyth ing about the bicycle. He even did not mention as to whether during investigatio n he enquired about the said bicycle from the appellant.

6. P.W.3 is a person who is owning a shop nearby the place of occur rence. He was in the shop with a customer but he did not see the alleged occurre nce. The I O did not examine any other witness during investigation from the sa id locality.

7. The I O examined another independent local witness, P.W.5 Sri Sa shidhar Deka but he stated that he knew nothing about the incident. PW-4 is th e medical officer who treated PW-2. He found the following injuries:- (cid:28)I) Penetrating injury at right lower chest through all layers. Size: 2 (cid:29) x full thickness. II) Penetrating injury at right side chest-lower end of eternal size: 2 (cid:29) x full thickness. III) Penetrating injury at left chest with prolapse of omentum. IV) Cut injury on right forearm. Size 2 (cid:29) x 2 (cid:29) bone deep. (cid:29)

8. The medical officer deposed that the patient underwent emergency surgery on the night of 30.10.98 for life saving procedure. In his opinion the nature of injury was grievous. Further he opined that the type of weapon used w as sharp and the age of injury was less than 12 hours. However, in cross examina tion he stated that the injury described may also be sustained by fall on sharp substance and all the injuries may not be caused by the same weapon. The inju red was discharged on 11.11.98. From the aforesaid medical report, Ext.2, it is found that PW-2 9. received four penetrating injuries. The victim, in his evidence, did not state t hat he received four injuries or the appellant gave four blows by a sharp weapon , either dagger or knife. If the evidence of the victim is taken as correct the appellant dealt only one blow by dagger or knife. If it is so, how the victim re ceived four injuries on his person has remained a mystery. According to his own evidence the victim jumped into the pond as soon as he was caught hold by the accused/appellant. It is not improbable that he received all the injuries menti oned in the injury report after he jumped into the pond. It cannot be conclusive ly said that the victim received the said injury due to blow/blows dealt by the appellant by a sharp weapon. The evidence of PW-2 (victim) is not supported/corroborated by 10. evidence of any witness. There is nothing in the evidence of PW-2 as to who and how he fell down or jumped into the pond and came out again from the pond. What is important to note is that no witness has testified that the appellant was see n at or around the place of occurrence on that particular date and time when the alleged incident took place. It is difficult to accept the uncorroborated evide nce of the victim regarding presence of the appellant and his alleged act of dea ling blow by a sharp weapon on his person. In my considered view, merely on the basis of evidence of the vi 11. ctim without being backed by corroborated evidence, no conviction could be imp osed upon the accused person . Moreover, it is noted that the alleged incident t ook place on 30.10.98 and the FIR was lodged on 3.11.98 i.e. after three days fr om the date of occurrence. The said delay has not been explained neither in the FIR nor in the evidence of the informant and the victim (PW-2). The unexplained delay may be excused in some cases where satisfactory explanation has been offe red. Here is a case where the aforesaid admitted delay has been kept unexplained leaving the scope for making false allegations by way of afterthought. The un explained delay is fatal to the prosecution and the prosecution case is to be t reated as unbelievable. In any case, on the basis of evidence and materials avai lable on record, it cannot be said that the prosecution has been able to prove t he charge beyond all reasonable doubt. The prosecution has failed to prove the c harge beyond reasonable doubt and as such the appellant is entitled to acquittal on benefit of doubt. In view of the above, the impugned judgment convicting and sentencing the appellant is liable to be quashed and set aside. It is ordered a ccordingly. Consequently, the appellant is acquitted on benefit of doubt. It is stated at the bar that the accused appellant is on bail. The bail bond, therefor e, stands discharged. Appeal stands allowed. Send down the LCRs.