High Court
Case Details
Crl.A. 242/2005 BEFORE HON’BLE DR. (MRS.) JUSTICE INDIRA SHAH
Legal Reasoning
As none has appeared on behalf of the appellant, Mr. R Dev, learned coun The Judgment and order dated 23.09.2013 passed by the learned Addl. Sessions Jud ge (Ad-hoc) Hojai at Sankardev Nagar in Sessions Case No. 246(N)/2005 convicting the accused-appellants under Section 307 read with Section 34 IPC and sentencin g them thereby to undergo R/I for 3 years with a fine of Rs. 500/- in default, t o undergo further SI for 30 days have impugned in this appeal. 2. sel has been appointed as amicus curiae, who has assisted this Court. 3. The prosecution case in brief is that, on 03.07.2003 while the victim Ba rindra Malakar after visiting the house of Kishor Malakar was returning home at around 9.00 a.m he was attacked by the accused Lakhi Kanta Malakar and Kajal Mal akar that the accused persons had assaulted him by means of dao and lathi causin g grievous injuries to him. It is alleged in the FIR that when the accused Kajal Malakar attempted to inflict dao blow on the neck of Barindra, Barindra raised his hand as a result, the dao fell on his hand and chest. The incident was witne ssed by Bishunu Malakar, who accompanied the victim from the house of Kishore Ma lakar and he immediately shifted the victim to HAMM Hospital, where he (victim) underwent treatment for 22 days. Smti. Niyoti Malakar, wife of the victim lodged the FIR on 05.07.2003. On the basis of the FIR so lodged Lanka P.S Case No. 80/ 2003 was registered and on completion of investigation police submitted charge-s heet under Section 341/326/307/34 IPC against the accused persons, Durgabrata Ch akraborty, Lakhi Kanta Malakar and Kajol Malakar. The accused Kajol Malakar was found declared absconder and the case was filed against him. Durgabrata and Lakh i kanta Malakar faced the trial and while accused-appellant Lakhi Malakar was co nvicted the accused Durgabrata was acquitted. During their trial, the trial cour t found prima facie material under Section 307/34 IPC and accordingly framed the charge against both the accused persons. The charges being read over and explai ned to them, both the accused pleaded not guilty and claimed to be tried. Altogether 7 witnesses were examined by the prosecution in support of it 4. s case. The accused in their statement recorded under Section 313 Cr.PC denied t he allegation levelled against them and pleaded that they were innocent, no defe nce evidence however was adduced. PW 1, Niyoti is the wife of the victim, who lodged the FIR. However, it 5. appears from her evidence that she did not see the incident. She is a reported w itness. 6. PW 2 Barindra Malakar is the victim. He deposed that on the date of occu rrence he visited the house of Kishore Master who is his brother-in-law. In the house of Kishore Master he met Birendra Malakar and Sachindra Malakar. At around 9.00 p.m. he came out of the house along with Bishnu and when he reached near t he house of Durgabrata Chakraborty the accused Lakhikanta Malakar and Kajol Mala kar attacked him. Kajol attempted to inflict dao blow on his neck but he saved h is neck by raising his hands. The blow fell on his chest and left hand. He alleg ed that Lakhi asked Kajal to assault him. He identified the accused persons in t he light of torch and when he raised alarm Bishunu came in his rescue and pushed Kajol, as a result Kajol fell down on the ground. The accused Kajol leaning th e dao on the spot and left the place. He further alleged that Kajol called anoth er accused calling thakurda (Durgabrata Chakraborty). PW 2 picked up the dao lef t by Kajol and handed it over to Birendra. Barindra on the way to the house of K ishore and became unconscious. He regained his sense after 10-12 days at hospita l and underwent treatment for 23 days. In cross-examination he admitted that Bishunu had lodged a criminal case against the accused Lakhi Malakar Sajal Malakar and Lakhi had lodged a case und er Section 107 Cr.PC against him, his wife and other witnesses of this case. His wife had lodged a civil case against Lakhi. 7. PW 3 Bishunu Malakar, lending support to the evidence of PW 2 stated tha t he along with the victim come out from the house of Kishore. While he was proc eeding ahead of the victim, he heard sound raised by Barindra and then in the fl ash of torch light, he saw Lakhi and Kajol at the place of occurrence. He depose d that the accused Lakhi asked Kajol to assault Barindra and accordingly Kajal a ssaulted him. Thereafter, PW 3 is order to Barindra pushed Kajal on the ground. And then Lakhi assaulted PW 3 by means of lathi. While falling on the ground Kaj ol called ››another accused Durgabrata Chakraborty. PW 3 raised hue and cry and hearing his cry Birendra Malakar arrived along with torch and thereafter many pe ople came. He stated that Barindra picked up the dao by which he was assaulted. The victim, was, then removed to the house of Kishore Master but on the way he b ecame unconscious. He was then shifted to Lanka P.S Case and there from to the H AMM hospital at Hojai. Police seized the dao and his torch during the investigat ion. He also admitted in his cross-examination both the parties have lodged the criminal and civil case against each other. 8. PW 4 Birendra Malakar came to the place of occurrence and saw the victim with injury on his body. 9. PW 5 Kishore Master deposed that the accused Kajol inflicted dao blow on the victim and the accused Lakhi assaulted him by means of the lathi. However, when he arrived at the place of occurrence he saw the victim with injuries and a ccompanied the victim along with other witness to the hospital. He admitted in t he cross-examination that he did not see the accused inflicting dao blows or lat hi blows on the victim. 10. PW 6, Subhash Chandra Biashya was working as ASI at Lanka P.S at the rel evant time. According to him Niyoti lodged the verbal information on 03.07.2003 itself that her husband was assaulted by Kajal, Lakhi and Thakur da. On the basi s of oral information, GD entry No. 75 dated 03.07.2003 was made. On receipt of the information, PW 6 visited the place of occurrence and sent the victim to Lan ka hospital wherefrom he was referred to HAMM hospital at Hojai. He seized the d ao which was used in commission of offence and a torch light produced by Bishun u. On Completion of preliminary investigation he submitted the case diary. 11. tal at Hojai and he found as follows:- PW 7 Doctor Ajanta Deori examined the victim on 04.07.2003 at HAMM hospi (cid:28) Chopped wound of left arm (medial aspect) about 10 (cid:28)X5 cm. Superficial muscle of arm broaden distally and tapering towards xilla continuous with lef t middle chest wall exposing the flora. Nobody injuries. ASC of the injury was f resh. Weapon used- sharp. Nature of injury was dangerous. Patient was in state of shock at time of attending the casualty with active bleeding from the wound patient was put for emergency surgery. (cid:28) In the opinion of doctor the injury was caused by sharp weapon and the n ature of injury was dangerous. In his cross-examination he stated that the victi m was admitted in the hospital on 04.07.2003. The fact that on the date and time of occurrence, the victim sustained g rievous injury caused to him by means of sharp weapon are not in dispute. The ev idence of victim which is fully corroborated by the evidence of PWs 3, 4 and 5. Although the victim and other witnesses have specifically alleged that it was th e accused Kajol, who inflicted dao blows on the victim, there is evidence that t he witness Bishunu came in rescue of the victim and pushed Kajol to save the vic tim and then accused Lakhi assaulted him. 12. I, therefore, find that the learned trial court rightly held that the ac cused Lakhi Malakar guilty of the offence under Section 307 read with section 34 IPC. Therefore, the judgment of conviction and the sentence passed by the learn ed trial court against the appellant Lakhi Kanta Malakar is upheld. The appeal f ails and the same is dismissed. Send down the LCR along with a copy of this judgment. 13. 14. The State Govt. is directed to pay of Rs. 5,000/- to the learned Amicus Curiae for his valuable assistance rendered to this Court.