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2003 DIGILAW 576 (GAU)

Atiqur Rahman Mazumdar v. State of Assam

2003-12-11

P.G.AGARWAL

body2003
ORDER P.G. Agarwal, J. 1. Heard Ms. B. Dutta, the learned counsel for the petitioner and Mr. F. H. Laskar, learned P.P. 2. In GR Case No. 671 of 1989 of the Court of Chief Judicial Magistrate, Hailakandi, the petitioner before us was tried for the offence under Sections 148/149/326, IPC. 3. The prosecution allegation is that on 16-6-89 at about 9.30 a.m. while the victim Nurul Huda Choudhury was proceeding to attend his duties in school and reached near the house of Kutimia accused-Atiqur Rahman Mazumdar came there wearing a chadar and assaulted Nurul (PW-1) with a dao as a result of which he sustained serious Injuries on his person. The other accused persons also arrived at the place of occurrence and it is alleged that they instigated the petitioner. On hearing alarm the other witnesses came whereupon the accused fled away. 4. On FIR being lodged, the injured was removed to Lala PHC and thereafter to Silchar Medical College and Hospital for further treatment. During trial, the prosecution examined as many as 9 witnesses and on conclusion of the trial, the learned trial Magistrate vide impugned order convicted the accused Atiqur Rahman and acquitted the other accused persons. The accused was sentenced to imprisonment for five years and to pay a fine of Rs. 10,000/- in default, further Imprisonment for six months. 5. Feeling aggrieved, the petitioner preferred Criminal Appeal No. 9 of 1999 before the Sessions Judge, Hailakandi but no relief was granted to the petitioner and hence, the present revision. 6. We have perused the evidence on record. The injured has categorically stated that it was accused-Atiqur Rahman Mazumdar who dealt dao blow on the person of the injured. PW-5 is Dr. D. Singha who examined the injured and found the following Injuries on the person of the injured :-- "1. Right forearm : Sharp cut through middle of right forearm cutting through all muscles bones (Radius and ulna), vessels and nerves, only a skin bridge 2" long anteriorly supporting the distal part. Distal part of the limb not viable. 2. Right elbow : 2" x 1" x 1" sharp cut over extenier aspect, bone deep. X-ray No. 2772. 3. Left wrist : sharp cut degloving with proximal flap 1" x 2" x 3" with active bleeding. 4. Left arm : small laceration 1" x 1/2" superficial. 5. Scalp. Distal part of the limb not viable. 2. Right elbow : 2" x 1" x 1" sharp cut over extenier aspect, bone deep. X-ray No. 2772. 3. Left wrist : sharp cut degloving with proximal flap 1" x 2" x 3" with active bleeding. 4. Left arm : small laceration 1" x 1/2" superficial. 5. Scalp. Sharp tangential cut 1" x 1" with active bleeding. 6. Multiple linear abrasions and scratches over back of chest and abdomen with mud stains. Patient was referred to the department of Orthopaedics after initial treatment. Type of weapon used sharp and heavy. Nature of injury grievous. Ext. 4 is the in-Jury submitted by me whereupon Ext. 4(1) is my signature." 7. In this case, we find that the medical evidence has not been challenged, that is, there was no cross-examined at all. The medical evidence fully supports the oral testimony of PW-1. 8. PW-2 Noor Khatoon, PW-3 Afsar Uddin Chowdhury and PW-4 Faizul Haque are the other witnesses who witnessed the incident, Although PW-4 has been declared hostile by the prosecution, this witness did state about the incident of assault wherein PW-1 was found lying at the P.O. with his right hand almost severed. PW-4 and PW-6 have stated that it was accused-Atiqur Rahman who assaulted the injured. The trial Court as well as the appellate Court have relied on the prosecution evidence to bring home the charge. On perusal of the evidence on record, we find no material to disbelieve the prosecution case. Ms. B. Dutta, the learned counsel for the petitioner has submitted that there are certain contradictions in the statement of PW-1 and other witnesses. In a criminal trial when the witnesses depose long afterwards, there may be some minor contradictions or omissions here and there or there may be some variations but it does not mean that the case is doubtful or the offence alleged strike out the root of the case. In the case of State of H.P. v. Lekh Raj, reported in the Apex Court observed in para-8 thus:-- "There are bound to be some discrepancies between the narrations of different witness when they speak on details, and unless the contradictions are of a material dimension, the same should not be used to jettison the evidence in its entirety. Incidentally, corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Incidentally, corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishment, there may be, but variations by reason therefore should not render the evidence of eye-witnesses unbelievable. Trivial discrepancies ought not to obliterate an otherwise acceptable evidence. The Court shall have to bear in mind that different witnesses react differently under different situations : whereas some become speechless, some start wailing while some others run away from the scene and yet there are some who may come forward with courage, conviction and belief that the wrong should be remedied. As a matter of fact it depends upon individuals and individuals. There cannot be any set pattern or uniform rule of human reaction not falling within a set pattern is unproductive and a pedantic exercise." The Apex Court further held in para 10 thus : "The criminal trial cannot be equated with a mock scene from a stunt film. The legal trial is conducted to ascertain the guilt or innocence of the accused arraigned. In arriving at a conclusion about the truth, the Courts are required to adopt a rational approach had judge the evidence by its intrinsic worth and the animus of the witnesses. The hyper technicalities or figment of imagination should not be allowed to divest the Court of its responsibility of sifting and weighing the evidence to arrive at the conclusion regarding the existence or otherwise of a particular circumstance keeping in view the peculiar facts of each case, the social position of the victim and the accused, the larger interests of the society particularly the law and order problem and degrading values of life inherent in the prevalent system. The realities of life have to be kept in mind while appreciating the evidence for arriving at the truth. The Courts are not obliged to make efforts either to give latitude to the prosecution or loosely construe the law in favour of the accused. The traditional dogmatic hypertechnical approach has to be replaced by a rational, realistic and genuine approach for administering justice in a criminal trial. Criminal jurisprudence cannot be considered to be a Utopian thought but have to be considered as part and parcel of the human civilization and the realities of life. The Courts cannot ignore the erosion in values of life which are a common feature of the present system. Criminal jurisprudence cannot be considered to be a Utopian thought but have to be considered as part and parcel of the human civilization and the realities of life. The Courts cannot ignore the erosion in values of life which are a common feature of the present system. Such erosions cannot be given a bonus in favour of those who are guilty of polluting society and mankind." 9. In the present case, we find that the accused-petitioner was named in the FIR and the injured has lost his forearm and he implicated the accused as the sole assailant. In view of the tell-tale materials no interference is called for so far the conviction of the accused-petitioner under Section 326, IPC is concerned. 10. The learned counsel for the petitioner submits that the incident took place in the year 1989 and long 14 years have elapsed and as such the petitioner may be treated leniently and he may be set off with fine only. In the present case, the victim was a School Teacher and he has lost his forearm and his right hand was amputated. The incident also took place in broad daylight and hence this is not a case where the accused can be released on payment of fine only. However, considering the long period of 14 years and as the accused-petitioner has suffered a lot, the sentence is modified to the extent that the accused-petitioner shall undergo imprisonment for three years and to pay a fine of Rs. 10,000/-, in default further imprisonment for six months. The line, if realised, shall be paid to the victim as compensation. The petitioner is directed to surrender forthwith before the Chief Judicial Magistrate, Hailakandi to serve out the sentence. 11. With the above modification in sentence, the revision petition stands disposed of. Send down the records for necessary action.