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2008 DIGILAW 561 (GAU)

Rubul Ali v. State of Assam

2008-08-04

I.A.ANSARI

body2008
JUDGMENT I.A. Ansari, J. 1. By judgment and order, dated 27.7.2007, passed, in GR Case No. 35/99, by the learned Sub-Divisional Judicial Magistrate, Rangia, the accused-petitioners along with two others, namely, Fakaruddin Ahmed and Bapan Ali, stood convicted under Sections 326 and 447 read with Section 34, IPC and each of them stood sentenced to undergo, for the conviction under Section 326 read with Section 34, IPC, rigorous imprisonment for a period of six months and pay fine of Rs. 2,000 and, in default of payment of fine, suffer rigorous imprisonment for a further period of one month and each of them also sentenced, for their conviction under Section 447 read with Section 34, IPC, to pay fine of Rs. 300 and, in default of payment of fine, suffer simple imprisonment for a period of 15 days. 2. Aggrieved by their conviction and the sentences passed against them the accused-petitioner and the said Fakaruddin Ahmed and Bapan Ali preferred an appeal, which gave rise to Criminal Appeal No. 52/2007. By judgment and order, dated 11.7.2008, passed in Criminal Appeal No. 52/2007, aforementioned, the learned Additional Sessions Judge (FTC), Kamrup, held the appellants, Fakaruddin Ahmed and Bapan Ali, not guilty of the offence under Section 326 read with Section 34, IPC, and acquitted them accordingly, but the present petitioner Rubul Ali's conviction under Section326, IPC, was maintained and the sentence, passed against him, in consequence of his conviction, under Section 326, IPC, was too left unaltered. The learned appellate court, however, maintained the conviction of not only the present petitioner, but also of Fakaruddin and Bapan Ali under Section 447, IPC, and declined to interfere with the sentences passed against them in consequence of their conviction under Section 447 IPC. While Fakaruddin and Bapan Ali have not taken any action against the appellate judgment and order, dated 11.7.2008, aforementioned, the accused-petitioner has impugned the same in this revision. 3. The case of the prosecution, as unfolded at the trial, may, in brief, be described, thus: On 18.1.1999, when the informant, Jamiruddin, was discussing some religious matters with Md. Chanaur Ali and Md. Tajnur Ali in his house, accused Fakaruddin, Giyas Ali, Rubul Ali, Bapan Ali and some other unknown persons entered into their compound, accused Rubul Ali assaulted the informant's waif, Taslima Begum, with a dao causing grievous injury. Chanaur Ali and Md. Tajnur Ali in his house, accused Fakaruddin, Giyas Ali, Rubul Ali, Bapan Ali and some other unknown persons entered into their compound, accused Rubul Ali assaulted the informant's waif, Taslima Begum, with a dao causing grievous injury. The accused persons damaged the bulbs of the informant's house and also damaged the informant's T.V., etc., lying at his house. As hue and cry were raised from the house of the informant, some neighbourers came and the informant, with the help of his neighbourers, carried his injured wife to Changsari Police Outpost, whereupon the injured was shifted to Guwahati Medical College Hospital on 18.1.1998 itself. An Ejahar was also lodged at the said outpost, which gave rise to Kamalpur PS Case No. 10/99. On completion of investigation, police laid charge sheet against six persons including the present petitioner under Sections 147/447/427/326, IPC. 4. During trial, charges under Sections 147, 447, 427 and 326, IPC were framed against all the said accused persons, but they all pleaded not guilty to the charges so framed. In support of their case, prosecution examined six witnesses. The accused persons were, then, examined under Section 313, Cr.P.C. and in their examination aforementioned, they denied that they had uncommitted the offences alleged to have been committed by them, the case of the defence being that of total denial. The defence also adduced evidence by examining one witness Having, however, found accused Rubul Ali, Fakaruddin (since acquitted) and Bapan Ali (since acquitted) guilty as mentioned above, the learned trial court convicted them accordingly and also passed sentences against them as already indicated above. As the appeal, preferred by the said three convicted persons, has not yielded any favourable result so far as the present petitioner is concerned, he is, now, before this Court with the help of this revision petition. 5. I have heard Mr. M.H. Choudhury, learned Counsel, for the petitioner, and Mr. V.S. Singh, learned Additional Public Prosecutor, Assam. 6. As the appeal, preferred by the said three convicted persons, has not yielded any favourable result so far as the present petitioner is concerned, he is, now, before this Court with the help of this revision petition. 5. I have heard Mr. M.H. Choudhury, learned Counsel, for the petitioner, and Mr. V.S. Singh, learned Additional Public Prosecutor, Assam. 6. According to the evidence of PW1 (Jamiruddin), who is also the informant of the case, on 18.1.1999, at about 6.45 p.m., accused Fakaruddin, Giyas Ali, Bapan Ali, Rubul Ali and some unknown persons came to the house of the informant, accused Rubul Ali dealt dao blows on the head and hand of Taslima Begum (PW2) and seriously injured her and, upon hue and cry being raised, some people from the neighbourhood came and the accused fled away. It is in the evidence of PW1 that police was, immediately, informed and his wife was admitted to Medical College, where she remained there for about one month. 7. Close on the heels of the evidence of PW1, the evidence of his wife (PW2) is that on the day of the occurrence, accused Fakaruddin, Giayas Ali, Bapan Ali, Rubul Ali and some others came to their verandah, accused Rubul Ali gave dao blows on her head and hand and, in consequence of such assault, she became unconscious and fell down, she was taken to the hospital and remained there for about a month. 8. From the cross-examination of PW1 and PW2, nothing could be elicited by the defence to show that their descriptions of the occurrence and/or the acts attributed to the present accused-petitioner were false. Though the informant (PW1) denied existence of any dispute over the land between the parties and/or any strained relationship existing between the accused persons, on the one hand, and the informant and his family, on the other, his wife (PW2) has admitted that the accused had cultivable land near her house and that prior to the occurrence, the parties were not on cordial terms. This part of the evidence given by the injured clearly shows that the relation between the accused-petitioner, on the one hand, and the informant, on the other, was not very cordial; rather, they had strained relation with each other and were, in fact, inimical to each other to each other. 9. Existence of enmity, we must bear in mind, is a double edged weapon. 9. Existence of enmity, we must bear in mind, is a double edged weapon. While it may be a cause for a person to have been falsely implicated, it may become a cause for a person to assault his adversary. Thus, when existence of enmity between two parties is brought to the notice of a criminal court, the court has to be alert and scan the evidence with great care and caution. If the evidence inspires confidence, there is no legal impediment in founding conviction of an accused on such evidence. If, however, the evidence is shaky or does not inspire confidence, the factum of strained relationship will be an additional factor for the court to treat such evidence as unsafe to rely upon and/or base conviction thereon. Under no circumstances, however, the evidence of an injured can be discarded outright merely on the ground that there was an existing enmity between the injured and the person, who is alleged to have caused the injury. In the present case too, when the evidence of PW2 shows existence of strained relationship between the parties concerned, the evidence of PW1 and PW2 need be scanned carefully; but if, on dispassionate scrutiny of their evidence, their evidence inspires confidence, it will be illegal to reject their evidence, particularly, when it has already been pointed out by me that existence of enmity may be a case for assault on a person. 10. Bearing in mind what has been indicated above, when one concentrate on the evidence of PW1 and PW2, nothing is noticed, which can be taken to have shaken their evidence. In fact, to a pointed query made by this Court, nothing could be pointed out, on behalf of the accused-petitioner, to show as to why the evidence of the informant and/or the injured shall not be relied upon. In fact, the evidence of the injured is simple, coherent, consistent and does not reveal any streaks of falsehood or untruth. Situated thus, one has no option, but to treat the evidence of the injured as wholly reliable. This apart, there is no reason for the injured to implicate a person, who may be innocent, and thereby let the real culprit escape. 11. Situated thus, one has no option, but to treat the evidence of the injured as wholly reliable. This apart, there is no reason for the injured to implicate a person, who may be innocent, and thereby let the real culprit escape. 11. Bearing in mind what has been pointed out above, when I turn to the evidence of PW5, who is the doctor and who had examined the injured on the date of the occurrence itself, I notice that according to the doctor, he had found following injuries on the person of PW2: 1. Cut injury over temporal and parietal region and length in size in 4 cm and as per CT scan report, there was (i) Hemorrhage, contusion in the left temporo parietal region with mass effect and perilesional oedema and pneumatecele and small epidural haematoma. 1. Diffused cerebral oedema. 2. Fracture of outer cartex of right frontal bone linear fracture left temporal bone and depressed communited left parietal bone. 3. Soft tissue hematomma in right lenporo parietal region. 12. According to the opinion of the doctor, injuries were caused by share weapon. ^ 13. From the evidence of the doctor, it becomes clear that the injuries sustained by PW2 might have been caused by a sharp cutting weapon, such as, dao, which the present accused petitioner had allegedly used for the purpose of assaulting PW2. 14. In order to get the findings of the learned trial court reversed, the entire case of the present accused-petitioner is that the only independent witness examined, in the present case, is Tajnur Ali (PW3), but Tajnur Ali (PW3) has not supported the evidence of PW1 and PW2, though he was, according to the evidence of PW1 and PW2, present at the house of the informant, when the alleged occurrence had taken place. 15. It is, no doubt, true that PW3 was the only independent witness examined in the present case. His evidence is, however, that he has no knowledge about the alleged occurrence. There is no explanation discernible from the evidence on record as to why this witness's name appears in the FIR if he (PW3) knew nothing about the occurrence. 15. It is, no doubt, true that PW3 was the only independent witness examined in the present case. His evidence is, however, that he has no knowledge about the alleged occurrence. There is no explanation discernible from the evidence on record as to why this witness's name appears in the FIR if he (PW3) knew nothing about the occurrence. The learned appellate court has pointed out that according to the evidence on record, PW3 knew both the parties, who were involved in the occurrence and from the medical evidence on record, it also transpires that PW2 had sustained serious injuries including fracture. In such circumstances, the learned appellate court has correctly pointed out that the PW3's plea that he knew nothing about the occurrence was not at all believable. Had PW3 deposed that he had not seen the occurrence and/or that he was not present at the place of occurrence, the matter might have been a little different; but his plea of complete ignorance about the incident, particularly, when a woman of a family, closely known to him, had to remain hospitalized for as long as one month, his plea of complete innocence cannot be readily believed. This apart, and as already indicated above, the evidence of the injured has remained wholly unshaken and there is no reason for her to implicate the present accused-petitioner as assailant and leave thereby the actual culprit. In fact, the learned appellate court has also taken note of the fact that the evidence of PW2 suffers from no exaggeration inasmuch as she has clearly deposed that having received blows from the dao on her head and her hands at the hands of accused Rubul Ali, she had lost her consciousness and it is for this reason that in her evidence, there is no mention about breaking of T.V. and other items of their house. 16. Coupled with the above, it may also be pointed out that the evidence of the police officer (PW4) is that on 18.1.1998, the informant brought his wife to Changsary Police outpost in an injured condition and, on information received by him, GD Entry No. 354/99 was made and the victim was sent to Guwahati Medical College Hospital. 16. Coupled with the above, it may also be pointed out that the evidence of the police officer (PW4) is that on 18.1.1998, the informant brought his wife to Changsary Police outpost in an injured condition and, on information received by him, GD Entry No. 354/99 was made and the victim was sent to Guwahati Medical College Hospital. The evidence given by the doctor and the Police Officer leave no room for doubt, as noted by the learned courts below, that in the evening of 18.1.1998, the victim had sustained grievous injuries hand the injuries were caused by none than the accused-petitioner by a dao. 17. The learned appellate court has, however, noted that apart from the fact that while framing charges against the accused persons, Section 34, IPC had not been added by the learned trial court, there was really nothing on the record to show that it was in furtherance of common intention of all the accused persons that accused Rubul Ali had assaulted PW1. In these circumstances, the learned appellate court has held that Section 34, IPC was not attracted to the facts of the present case. On the basis of this finding, the learned appellate court has acquitted the remaining accused of the charges framed against them under Section 326 read with Section 34, IPC, but has upheld the conviction of the present petitioner under Section 326, IPC on the ground that he has been proved, beyond all reasonable doubt, to have caused grievous part to PW2. Against this finding of acquittal, no appeal has been preferred by the State. I, therefore, do not deal with the merit of the acquittal of the remaining accused persons under Section 326, IPC. However, all the appellants were, according to the learned appellate court, guilty of the offence under Section 447. So far as the conviction of the present accused-petitioner for the offence under Section 447, IPC is concerned, it may be pointed out that the accused-petitioner has been clearly proved to have entered into the house of the informant with intent to cause hurt and in such circumstances, his conviction, under Section 447, IPC too, cannot be said to be without any evidence on record or contrary to law. 18. 18. As far as the sentences passed against the accused-petitioner are concerned, the learned appellate court has pointed out that in the face of the serious nature of injuries, which were caused to PW2, the sentence passed against the accused-petitioner is very lenient. This Court finds no reason to take a view different from what the learned appellate court has taken. 19. Because of what have been discussed and pointed out above, I find no infirmity, legal or factual, in the findings of guilt reached against the accused-petitioner and his conviction under Sections 326and 447, IPC. The sentences passed against the accused-petitioner too are, as already indicated hereinabove, neither harsh nor excessive. In fact, the sentences are too law and inadequate compared to the nature of the offences committed by the accused-petitioner. In the facts and attending circumstances of the present case, wherein the accused petitioner is clearly proved to have assaulted and injured a helpless woman in her own house, it is clear that the accused petitioner could have been given the benefit of the Probation of Offenders Act. Considered in this light, it becomes more than abundantly clear that the conviction of the accused-petitioner and the sentences passed against him call for no interference by this Court in exercise of its revisional jurisdiction. 20. In the result and for the reasons discussed above, this revision fails and the same shall accordingly stand dismissed. 21. Before parting with this revision, it is hereby directed that the accused-petitioner, namely, Rubul Ali, shall, forthwith, surrender in the court of the learned Sub-Divisional Judicial Magistrate, Rangia, in order to serve the sentence of imprisonment passed against him. 22. With the above observations and directions, this revision shall stand disposed of. Petition dismissed.