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2006 DIGILAW 810 (GAU)

Barman Taye v. State of Assam

2006-08-30

I.A.ANSARI

body2006
JUDGMENT I.A. Ansari, J. 1. The petitioner assails, in the present revision, the legality, propriety and correctness of the judgment and order, dated 22.12.2004, passed by the learned Additional Sessions Judge (ad hoc), North Lakhimpur, in Criminal Appeal No. 2(1)/2002, dismissing the appeal and upholding thereby the judgment and order, dated 4.2.2002, passed by the learned Sub-Divisional Judicial Magistrate, Lakhimpur in GR Case No. 97/2000, convicting the accused-petitioner under Sections 448 and 326IPC and sentencing him to undergo rigorous imprisonment for one year and pay fine of Rs.1,000 and, in default of payment of fine, suffer simple imprisonment for a period of three months. 2. The case against the accused-petitioner, as unfolded at the trial, may, in brief, be described, thus, on 1.1.2000, at about 8 P.M., accused Barman Taye, armed with a dao (machete), entered into the room of Bhabani Pawe by pushing open the door thereof and caught hold of the hand of Bhabani Pawe. On hearing Bhabani's screams, her sister-in-law, Aizo Pawe, who was also sleeping in the same room, woke up and, on lighting of a lamp by Aizo Pawe, both Bhabani as well as her sister-in-law, Aizo, saw the accused inside their room. The accused took out a khukri, which he had kept tied to his waist, and gave with the same a blow on Bhabani and when Bhabani tried to save herself by raising her hand, her left thumb got severely cut and when her sister-in-law Aizo Pawe, moved forward to save Bhabani, Aizo too was given a blow, the blow so given, having caused cut injury on the left palm of Aizo. Hearing hue and cry raised in the room, neighbours came running and the accused fled away. Both the injured were taken to nearby Primary Health Centre and from there, they were shifted to Civil Hospital, North Lakhimpur, where they remained under treatment for about three weeks. While the injured were still receiving treatment at the said hospital, Aizo's father-in-law, Tombu Ram Pawe, lodged a written Ejahar (Ext.1). Based on this Ejahar and treating the same as FIR, Lakhimpur Police station Case No. 79/2000 under Section 448/326 IPC was registered and, on completion of investigation, police laid charge-sheet against the accused under Section 448/326 IPC. 3. To the charges framed under Sections 448 and 326 IPC against them, at the trial, the accused pleaded not guilty. 4. Based on this Ejahar and treating the same as FIR, Lakhimpur Police station Case No. 79/2000 under Section 448/326 IPC was registered and, on completion of investigation, police laid charge-sheet against the accused under Section 448/326 IPC. 3. To the charges framed under Sections 448 and 326 IPC against them, at the trial, the accused pleaded not guilty. 4. In support of their case, prosecution examined as many as five witnesses. The accused was, then, examined under Section 313 Cr.P.C and in his examination aforementioned, the accused denied that he had committed the offences alleged to have been committed by him, the case of the defence being that of denial. No evidence was, however, adduced by the defence. 5. Having found the accused guilty of the offences charged with, the learned trial court convicted him accordingly and passed sentence against him as mentioned hereinabove. As the appeal preferred by the accused failed to yield any favourable result, the accused has challenged his conviction and the sentence passed against him in the present revision. 6. I have heard Mr. P.K. Goswami, learned Counsel for the petitioner, and Mr. B.S. Sinha, learned Addl. Public Prosecutor, Assam. 7. Let me, first, deal with the evidence of PW1 (Bhabani Pawe) and PW2 (Aizo Pawe). Broadly in tune with each other, PW1 and PW2 have deposed that while they were sleeping in a room with its door shut, someone caught hold of the hand of PW1 and, on hearing her screams, PW2, who too woke up, lit a lamp and both of them saw the accused inside the room with a khukri tied to his waist, the accused gave a blow with the khukri on PW1 and as PW1 raised her hand to save herself, the blow fell on her thumb and severely cut the same and when, on witnessing the assault on PW1, her sister-in-law (PW2) moved forward to save PW1, PW2 too was given a blow, which fell on the palm of PW2 and caused severe cut injury. It is in the evidence of PW1 and PW2 that on hearing their cries, neighbours came running and the accused fled away. It is in the evidence of PW1 and PW2 that on hearing their cries, neighbours came running and the accused fled away. It is also in the evidence of PW1 and PW2 that both of them were, first, taken to the local Primary Health Centre and they were, then, shifted there from to the Civil Hospital, North Lakhimpur, where PW1 remained under treatment for more than 20 days. It is also in the evidence of PW1 that as a result of the injury caused to her thumb, her thumb became shorter. Though both PW1 and PW2 were put to cross-examination, nothing, in particular, could be elicited from their cross-examination by the defence to show that what they had deposed was untrue or false. This apart, their evidence received credible corroboration from the deposition of the doctor (PW6), who had examined them on 1.1.2000 at about 11 P.M. at the local Primary Health Centre. It is also in the evidence of PW6 that he referred both the injured to the Civil Hospital. 8. Coupled with the above, the evidence of PW3, who is informant and also father-in-law of PW2, is that on 1.1.2000, at about 8 P.M., on hearing screams, when he came to his daughter-in-law's house, he, in the focus of his torchlight, found the accused coming out with a blood stained khukri in his hand and, on noticing the torch-light focused on him, the accused gave a blow on the torch-light with his khukri and broke the same. It is also in the evidence of PW3 that the accused picked up the broken torch and started giving blow with the same on the person of PW3. 9. Close on the heels of the evidence of PW3, PW5 a neighbour of PW1 and PW2, has deposed that on 1.1.2000, at about 8 P.M., on hearing hue and cry raised from the house of PW2, when he came to the house of PW2, he found the accused outside the house with a khukri in his hand and, on going inside the house, he found PW1 and PW2 with their hands severely injured. 10. 10. Apart from the fact that the defence could elicit nothing from the cross-examination of PW3 and PW4 to show that their evidence was false, it was suggested to PW3 that the bloodstained khukri, which PW3 had seen in the hands of the accused, was actually the blood of pig. This suggestion clearly shows that the fact that PW3 had found the accused coming out of the house of PW2 with a khukri in his hand stood admitted by the defence. Whether the said khukri bore human blood-stains or blood-stains of pig is immaterial. At any rate, in the face of the unshaken evidence of PW3 and PW4, coupled with the said suggestion, which the defence offered to PW3, there remains no escape from the conclusion that following the screams of PW1 and PW2, when PW3 came to the house of PW2, he saw the accused coming out of the house with a blood-stained khukri in his hand. That apart, the accused was also seen outside the said house, when PW4 arrived there and, on entering into the house, PW4 found PW1 and PW2 severely injured as described hereinabove. 11. Thus, the evidence of PW3 and PW4 lends substantial support to the evidence of PW1 and PW2, whose evidence have, otherwise also, remained, as already pointed out above, wholly unshaken. 12. Unable to point out any serious lacuna in the evidence of PW1 and PW2, Mr. P.K. Goswami, learned Counsel, for the accused-petitioner, has pointed out that PW1 and PW2 were not examined by police during investigation and, hence, their evidence cannot be safely relied upon. While considering this aspect of the matter, it is worth noticing that PW1 and PW2 are the two injured and, hence, they are, undoubtedly, material witnesses. In such a situation, even if, for a moment, it is assumed that PW1 and PW2 were not examined by police during investigation, the fact remains that their evidence was imperative for fair and just decision of the case. The evidence of PW1 and PW2 cannot, therefore, be thrown away, particularly, when PW1 and PW2 were cross-examined, at length, by the defence without raising any objection to their being examined by the prosecution. Yet another ground on which the conviction of the accused-petitioner is challenged by Mr. P.K. Goswami is that according to PW3, when he entered into the house, he did not find anyone inside the house. Yet another ground on which the conviction of the accused-petitioner is challenged by Mr. P.K. Goswami is that according to PW3, when he entered into the house, he did not find anyone inside the house. While considering this aspect of the case, it needs to be noted that the evidence of PW3 is that, on being assaulted by the accused, PW1 and PW2 were taken to Primary Health Centre for treatment and this assertion of PW3 went unchallenged by the defence. Situated, thus, the evidence of PW3 cannot be discarded. 13. Lastly, it is submitted, on behalf of the accused-petitioner, that the FIR, in the present case, was lodged on 18.1.2000, i.e., almost after 18 days of the occurrence. While considering this aspect of the matter, it needs to be noted that the informant (PW3) has clearly stated, in the FIR itself, that as the family members of the informant have remained occupied in connection with the treatment of the two injured, there was delay in lodging of the FIR. Apart from the fact that none of the prosecution witnesses including PW3 was cross-examined on the question of delayed lodging of the FIR, there is really nothing in the evidence on record to discard the evidence of PW1 and PW2 merely because of the fact that there was delay in lodging of the FIR. Delay in lodging of the FIR requires that a court should closely scrutinize the evidence on record before placing reliance thereon. If the evidence on record inspires confidence of the court, delay in lodging of the FIR cannot be made a ground to discard or throw away the evidence of the prosecution witnesses, whose evidence inspire confidence. 14. In the case at hand, there was absolutely no cross-examination of the informant or of any other witnesses on the delayed lodging of the FIR. Coupled with the above, and as already indicated above, the evidence of PW1 and PW2 that they had been assaulted and injured by the accused remained unshaken. This apart, the evidence of PW3 and PW4 clearly shows the presence of the accused at the house of PW2 with a khukri. Considered thus, there can be no escape from the conclusion that the accused did assault and injured PW1 and PW2 as indicated hereinabove. 15. This apart, the evidence of PW3 and PW4 clearly shows the presence of the accused at the house of PW2 with a khukri. Considered thus, there can be no escape from the conclusion that the accused did assault and injured PW1 and PW2 as indicated hereinabove. 15. Because of what have been discussed and pointed out above, I find no infirmity, legal or factual, in the conviction of the accused nor do find any reason to interfere with the sentence passed against him. 16. In the result and for the reasons discussed above, this revision fails and the same shall accordingly stand dismissed. Petition dismissed.