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Gauhati High Court · body

2005 DIGILAW 62 (GAU)

Ratneswar Karmakar v. State of Assam

2005-01-27

H.N.SARMA

body2005
JUDGMENT H.N. Sarma, J. 1. This Revision application is filed against the judgment and order dated 16.10.97 in Crl. Appeal No. 20 of 1997 dismissing the appeal preferred by the present Petitioners challenging the judgment and order passed by the learned Magistrate, 1st class (Jorhat) in GR case No. 793 of 1995 dated 17.6.97. By the said judgment dated 17.06.97 the learned trie1 Court convicted both the Petitioners under Section 341/326 read with Section 34 of the IPC and sentenced them to undergo simple imprisonment for 15 days under Section 341 IPC and simple imprisonment for 6 months under Section 326 IPC with a fine of Rupees one thousand, in default, further simple imprisonment for Anr. 15 days, with further direction that if the fine is realized from the accused persons, it would be awarded to the injured person as compensation. 2. I have heard Mr. P.C. Gayan, learned Counsel appearing for the Petitioners and Mr. Laskar, learned Additional Public Prosecutor. Learned Counsel Mr. Gayan, in support of the accused Petitioners, has submitted that the conviction and sentence of the accused Petitioners on the basis of the occular evidence of P.Ws. 1 and 2 is not safe. It is further submitted that there is no materials against the accused Petitioner Dilip Karmakar to uphold the conviction against him. Further submission of the learned Counsel is that both the Courts below misappreciated and misunderstood the evidence and materials on record and illegally passed the impugned order. Mr. Laskar, on the other hand submitted that this Court being a revision Court will not reappreciate the evidence on record and the impugned judgment and order has been rightly passed by the Courts below and accordingly the Revision petition has no merit and is liable to be dismissed. 3. I have considered the rival submissions of the parties. Mr. Gayan, the learned Counsel for the Petitioners in support of his case took me through the impugned judgment passed by the learned appellate Court and also took me through the judgment passed by the learned trial Court in order to properly appreciate the submissions made by him. Necessary portion of the evidence of P.W. 1, 2 and 3 were also read over by Mr. Gayan in support of his contention. Learned Counsel has submitted that, the time of occurrence being 7 P.M., it is not possible for P.Ws. Necessary portion of the evidence of P.W. 1, 2 and 3 were also read over by Mr. Gayan in support of his contention. Learned Counsel has submitted that, the time of occurrence being 7 P.M., it is not possible for P.Ws. 1 and 2 to recognize the accused Petitioners and accordingly the entire evidence of P.Ws. 1 and 2 against the Petitioners are shaky in nature and on the basis of such evidence the impugned conviction cannot be sustained in law. 4. The prosecution case, as unfolded during trial is that on 17.7.95 in the evening when P.W. No. 1 and 3 went in search of their missing goat. When both P.Ws. 1 and 2, were returning with the goat and reached the place of occurrence at about 7 P.M. the accused No. 2 stopped the injured (P.W. 1) by intervening him and accused No. 1 gave him a blow on his face by a sharp cutting weapon. Thereafter P.W. 3, Sri Sobin Hati Baruah the elder brother of the injured, lodged an FIR on 18.07.95 in the Ladoigarh out post narrating the aforesaid facts on the basis of which GR Case No. 793/95 was registered under Section 341/326/34 IPC against both the accused Petitioners. On completion of the investigation police submitted charge sheet and the learned Trial Court framed the charge under Section 341/326/34 against the Petitioners. They denied the changes and claimed to be tried. During the course of trial the learned Trial Court examined as many as 5 P.Ws. including the injured (P.W. 1), the informant (P.W. 3), Doctor (P.W. 4), and the IO (P.W. 5) and on closure the evidence, statement of the accused persons under Section 313 were recorded. Defence examined no witness. On completion of the trial, the learned trial Court upon consideration and appreciation of the evidence and materials on record, convicted both the Petitioners under Section 341/326/34 IPC and sentenced them in the manner aforesaid vide order and judgment dated 17.06.97 passed in GR Case No. 793/95. Against the aforesaid judgment, the present Petitioners preferred a criminal appeal being criminal appeal No. 20/97 in the Court of learned Sessions Judge, Jorhat. Against the aforesaid judgment, the present Petitioners preferred a criminal appeal being criminal appeal No. 20/97 in the Court of learned Sessions Judge, Jorhat. The learned Sessions Judge also considered the evidence and materials on records independently and upon such considerations did not find any reason to alter the conviction of sentenced imposed by the learned Magistrate and dismissed the appeal upholding the judgment against vide judgment and order dated 16.10.97, passed in Crl. Appeal No. 20/97. The present Revision Petition is filed against the said order. During the course of hearing of this revision, it has been strenuously urged by Mr. Gayan, that the occurrence having been taken place at about 7 p.m. night on 17.07.95, it was not possible for the witnesses to recognize the Petitioners. On going through the evidence of P.W. 1, it is seen that he stated in his examination-in-chief, he inter-alia stated that at that time it was about 7 p.m. evening that the witness was not cross examined at all regarding the identity of the accused persons. Similarly the P.W. 2 in her evidence inter-alia stated that "at that time it was not so much darkness, accused are known to us, hence we could recognize them very well". This witness was also not cross examined at all, regarding identity of the accused Petitioners. 5. Further both the Courts below on proper appreciation of evidence and materials on record came to the finding, that the accused persons committed the offences as alleged. The said finding being concurrent finding of fact regarding the identity of the accused persons, I do not like to disturb the same by reappreciating the evidence again, hi fact the facts stated above clearly shows, that there is no doubt about the identity of the accused persons in their participation in commission of the offence. 6. Regarding the other submissions made by Mr. Gayan, to the effect that the learned Courts below misappreciated and misconstrued the evidence on record and illegally convicted the Petitioners more particularly the accused Petitioner No. 2 as there is no materials on record to support the conviction against him, I perused the connected evidence of the witnesses. 7. P.W. 1 in his evidence inter-alia stated, on the day of occurrence, when he went in search of his goat from his house, his wife (P.W. 2) was also with him. 7. P.W. 1 in his evidence inter-alia stated, on the day of occurrence, when he went in search of his goat from his house, his wife (P.W. 2) was also with him. When they reached infront of the house of Nabin Karmakar, the accused No. 2 intercepted him by holding in his bicycle and the accused No. 1 gave him blow with a dao in his chick and left eye. He also stated that his wife raised hue and cry and at which both the accused ran away. P.W. 2 in her evidence also corroborated the aforesaid evidence of P.W. 1, she inter-alia stated that, when she and her husband reached infront the house of Nabin Karmakar the accused No. 2 intercepted by holding his bicycle and accused No. 1 gave him the dao blow and caused grievous injury. P.W. 3 Sri Shobin Hati Baruah is the elder brother of P.W. 1, the injured, who lodged the FIR, in his cross examination, he stated that he does not know what was written in the ejahar and who wrote it. He stated in-chief that he signed in the FIR. The FIR was proved as Ext. 1. On going through the evidence and materials on record, in order to appreciate the contention of Mr. Gayan, particularly regarding the legality and validity of the conviction of Petitioner No. 2, it is seen that only statement made by the P.W. 1, 2 and 3 is that, the Petitioner No. 2 only intercepted the bicycle of the injured. No overt act or other part played by Petitioner No. 2 has been attributed by the witnesses. The specific case of the prosecution prove by the aforesaid witnesses is that, it is the accused No. 1, who gave the fatal blow. P.W. 5, the IO in his cross-examination also admitted that P.W. 2 has not stated before him that he (Petitioner No. 2) committed in such overt act. The Doctor was examined as the P.W. 4 and examined the victim P.W. 1 on 17.07.95 at 10 p.m. The Doctor found the cut injury on the face of the injured P.W. 1 and in his opinion the injury is caused by sharp cutting weapon and are grievous in nature. The Doctor was examined as the P.W. 4 and examined the victim P.W. 1 on 17.07.95 at 10 p.m. The Doctor found the cut injury on the face of the injured P.W. 1 and in his opinion the injury is caused by sharp cutting weapon and are grievous in nature. Doctor also stated the wound was incised looking wound obliquely placed on the right side below the right check to the right upper lip margin and it was also found that right upper lip of the mucous membrane was cut and that the right incisor, canine and first premolar were broken and there was active bleeding from the gums. 8. On the backdrop of the evidence of prosecution witness, the accused No. 2 has also been convicted under Section 341 and 326 IPC with the aid of Section 34. On going through the prosecution evidence the ingredients of common intention as mentioned in Section 34 of the IPC has not at all mentioned by any of the prosecution witnesses. None of the P.Ws. have stated that the accused Petitioner No. 2 gave any blow to the injured. On perusal of the materials and evidence on record, I find the submission of Mr. Gayan regarding the accused No. 2 is well founded. In fact there is no evidence on record to rope to the Petitioner No. 2 for convicting him under Section 341/326with the aid of Section 34 IPC. Although there are ample materials on record against the accused Petitioner No. 1. The prosecution witnesses have been able to prove the case against the accused No. 1, and there is no illegality or perversity in convicting the accused No. 1 by the Courts below. Mr. Laskar the learned Additional Public Prosecutor also accepted this factual position. 9. Upon the discussions made hereinabove, and upon perusal of the materials and evidence on record, I do not find any illegality or impropriety against the convicting the accused No. 1 Sri Ratneswar Karmakar. But the conviction and sentence passed upon the Petitioner No. 2 is not legal and proper and is not sustainable in law. In the result, this revision petition is allowed, so far the accused/Petitioner No. 2 Sri Dilip Karmakar concerned, whereas it is dismissed as regard the other accused/Petitioner No. 1 Sri Ratneswar Karmakar, who shall serve out the sentence imposed on him. 10. No order as to cost. 11. In the result, this revision petition is allowed, so far the accused/Petitioner No. 2 Sri Dilip Karmakar concerned, whereas it is dismissed as regard the other accused/Petitioner No. 1 Sri Ratneswar Karmakar, who shall serve out the sentence imposed on him. 10. No order as to cost. 11. Send down the record to the Court below. Petition allowed.