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2008 DIGILAW 687 (GAU)

Ojing Tasing v. State of Arunachal Pradesh

2008-09-11

P.K.MUSAHARY

body2008
JUDGMENT P.K. Musahary, J. 1. Heard Mr. N. Choudhury, Learned Counsel for the appellant and also heard Mr. N. Lowang, learned PP for the State of Arunachal Pradesh. 2. This appeal is directed against the judgment and order dated 31.8.2007, passed by the learned Addl. District and Sessions Judge, FTC, Basar, Arunachal Pradesh, in BSR/SESS-311/2003, convicting the accused-appellant under Section 333 of Indian Penal Code and sentencing him to undergo rigorous imprisonment for 2(two) months and to pay a fine of Rs. 25,000 (Rupees twenty-five thousand) only in default for rigorous imprisonment for 1 (one) month more. The prosecution story may be taken from the First Information Report (FIR) lodged by the informant Sri T.B. Singh, Principal of Government Hr. Section School, Boleng, dated 5.6.2001, with the Officer-in-Charge of Boleng Police Station in which it is stated that on 5.6.2001, at about 11:30 am, Sri Ojing Tasing, S/o Sri Tasong Tasing of Gandhi Village, Boleng, came to his office chamber for admission of one Sri Tamong Jerang in his school in Class-X from Geku Secondary School and when the informant refused to admit the said Jerang as student, the accused appellant Sri Ojing Tasing wanted to verify the admission register and came closer to the informant and attacked him. As stated in the FIR, the accused appellant attacked the informant on his face and dealt blows causing injuries on his forehead and face in presence of witnesses, namely Sri Tapor Mibang, ADEO, Boleng and other Teachers of the School, namely, Sri S.R. Chowdhury, subject-Teacher (Mathematics), Sri Tarak Mije, Junior Teacher and Mr. S. Arty Mibang, Assistant Teacher. On the basis of the said FIR, a case being Boleng P.S. Case No. 15/2001 under Section 448/353/333/506/34 of IPC was registered and the investigation was taken-up by the Officer in-Charge himself. After completion of the investigation, the Police laid charge sheet against the accused appellant under Section333/458/353/506/34 of IPC. The accused appellant pleaded not guilty and claimed to stand the trial. 3. The prosecution examined as many as 7 witnesses including the Investigating Officer and the Medical Officer. The informant himself was examined as PW1. According to him, PW2 to PW5 were present when the alleged incident took-place. The accused appellant pleaded not guilty and claimed to stand the trial. 3. The prosecution examined as many as 7 witnesses including the Investigating Officer and the Medical Officer. The informant himself was examined as PW1. According to him, PW2 to PW5 were present when the alleged incident took-place. The informant maintained the statements made in the FIR and stated that the accused-appellant suddenly gave a punch on his forehead and another blow at the lower jaw for which 2(two) of his teeth fell-out. One of the teeth was artificial and the other was already a loose one due to his old-age. Among the 4 eye witnesses cited by the informant, one of them namely PW2 Sri Tapor Mibang, ADEO, categorically stated, as follows: ...During that time, the accused came with a boy whom I know as Jerang for seeking admission of this Jerang boy. The Principal refused to give admission to this Jerang boy telling already refused him earlier also. The accused then argued with the Principal telling that he should show the records of the school admission; That time also the Principal refused to show the records and in the process, there arose some argument between the accused and the Principal. In the process of argument, the Principal picked up a wooden roller lying on table to beat the accused and the accused then pushed the Principal in the process of defending himself and the Principal who was sitting in the official revolving chair fell down on the floor. Since the Principal was lying on the floor and the accused was facing the Principal during which I saw from behind that the accused was raising his hand once towards the Principal. But I did not exactly see the accused bang blowing at the Principal as the things happened in the floor while I was at the behind. Sometimes, later I heard about breaking of teeth of the Principal. When I saw the accused being standing near the Principal, I dragged the accused outside the chamber of the Principal. Thereafter, the teachers and students gathered and the accused also left the school campus and myself also went to my office.... Interestingly, this witness who deposed against the prosecution was not declared as a hostile witness nor did the prosecution make a prayer to declare him as a hostile witness. Thereafter, the teachers and students gathered and the accused also left the school campus and myself also went to my office.... Interestingly, this witness who deposed against the prosecution was not declared as a hostile witness nor did the prosecution make a prayer to declare him as a hostile witness. PW3, another eye-witness, stated that he could not see the actual incident about how the accused appellant assaulted the Principal. He simply heard the Principal stroking at the wall and he saw the Principal falling down and then he saw blood flowing out from the mouth of the informant for which this witness came to help him in getting up from the floor. The aforesaid witness was declared hostile on the prayer of the prosecution but no attempt was made to demolish his evidence by cross-examining him. The cited eye-witnesses namely Mr. S. Arty Mibang (Ering) who was examined as PW4 categorically stated that she did not see the incident with her own eyes. Another eye-witness Sri Tarak Mize (PW5), stated that he did not even notice any injury on the person of the informant. Dr. I. Modi, who was examined as PW7, was on duty as Medical Officer in-charge of the Boleng CHC. She had stated that the informant was brought before her and on examination of the informant, she found that 2(two) of his teeth of the lower jaw got avulsion of teeth due to external force from outside and such injury is categorized under 'grievous injury'. She also stated that the injury could have been caused due to contact of a blunt object. In her cross-examination, she stated that there was another Doctor in the said CHC namely, Dr. T. Tamuli, who was the Dental Surgeon. She had stated that she examined the informant in the chair of the Dental Surgeon in presence of the said Dental Surgeon. According to her, by avulsion, she meant forceful separation from socket. The teeth which were avulsed, according to her, were original teeth and one of them, was brought out by the informant himself at the medical examination room and another was collected later on from the school and handed over to the Doctors. According to her, by avulsion, she meant forceful separation from socket. The teeth which were avulsed, according to her, were original teeth and one of them, was brought out by the informant himself at the medical examination room and another was collected later on from the school and handed over to the Doctors. She further stated that she did not see any visible external injuries on the lips, gums, of the victim informant Of course an injury was visible on the forehead of the victim informant but she stated that she did not either find any blood or laceration on the injury on the person of the informant. PW6, Sri Ajit Ch. Deka, is the Investigating Officer of this case. From his evidence, it is found that he visited the place of occurrence but he did not examine any witness at the place of occurrence but he arrested one accused Sri Tamong Jerang, who accompanied the accused appellant Sri Ojing Tasing. 4. The accused appellant produced one witness in his defence. This DW1 namely Sri Tagung Jamoh stated on oath that he was by profession a Lawyer and on that very day, he happened to be present it the school for admission of his cousin. In the examination-in-chief, he deposed amongst others, as follows: ...When I was at the campus of the Principal Office, I saw many people attracted towards Principal's Office of their attentions for which I also looked from a little distance. All things happened in the presence could be seen from the outside for all the windows and screen were opened as it was very hot at that time. At the time, when I saw towards Principal's Office, I saw that the Principal in the pose of hitting the accused with a lathi. The lathi which was being used by the Principal was in black colour which was seen on the table of the Principal at the time when I earlier entered in the Principal's Office. I did not see the accused giving any punch on the person of the Principal. I did not either see any person or Principal being injured or broken of his teeth. After I saw which I have said I left the school. I have that much to say. 5. I have perused the case records produced before this Court and appreciated the evidence on record. I did not either see any person or Principal being injured or broken of his teeth. After I saw which I have said I left the school. I have that much to say. 5. I have perused the case records produced before this Court and appreciated the evidence on record. The FIR, exhibited as P-1, has not mentioned anything about the avulsion of his teeth or receiving injury on his teeth or coming out of teeth from the lower jaw. The Doctor's evidence also is not clear that any of the original teeth of the informant was fallen due to some external force. It is only the artificial teeth which were found fallen and, therefore, story of his being hit by somebody on his face is not believable. The Doctor's remarks is also notable because the artificial teeth, as could be understood even by a layman, could not be re-implanted in such an ordinary process. 6. The most important witness is PW2 Sri Tapor Mibang, ADEO, whose relevant portion of the evidence has already been quoted earlier. It is proved from the evidence of this witness that it was the informant himself who first picked-up a Wooden Roller lying on his table to assault the accused and the accused in his self-defence had to push back the informant who was sitting on his official revolving chair and fell down on the floor. Had there been no attempt to assault by the informant on the accused appellant, he would not have pushed the informant. The theory of first attack from the informant is not projected by the defence witness, accused appellant himself but it is the witness of the prosecution itself and the said evidence has not been demolished by the prosecution by way of declaring him as a hostile witness and by cross-examining him. The evidence of this witness i.e., PW2, remains unshattered and it has been proved and established that the informant himself attacked the accused. None of the witnesses has supported the prosecution case that the appellant attacked and assaulted the informant and, therefore, the prosecution's case could not be proved against the accused beyond any doubt not to speak of beyond any reasonable doubt which is required in the criminal trial. 7. There are cogent evidence on record that the informant first attacked the accused appellant and the accused had to act for his self-defence. 7. There are cogent evidence on record that the informant first attacked the accused appellant and the accused had to act for his self-defence. The law is settled in several cases that if there are materials to indicate that the incident could not have happened in the manner spoken to by the eye-witness and in all probability, the accused appellant had used the force exercising the right to self-defence, then the accused appellant are entitled to the benefit thereof. We can cite the case of Shyam Sunder v. Puran and Anr. (1990) 4 SCC 731 , as an appropriate case which covers the present case. 8. The learned trial court has given much emphasis on the evidence of the informant only which have no corroboration in the evidence of other prosecution witnesses and failed to appreciate the evidence of FW2 and also the DW1 who had deposed categorically about the first attack perpetrated by the informant himself upon the accused who in his self-defence had to act upon. On the basis of the evidence on record, in my opinion, no conviction can be recorded against the appellant under Section 333 of IPC inasmuch as the informant was not supposed to attack a guardian of the student concerned in discharging his official duties as a Principal and this is not a part of his official duties. 9. In view of above discussions, I find that the prosecution miserably failed to establish its case and the learned trial court came to a wrong conclusion that the accused committed an offence under Section 333 of IPC. The impugned judgment and order dated 31.8.2007 recording the conviction and sentence is not sustainable under the law and accordingly, the same is set-aside. The accused is liable to be acquitted and set at free. It is accordingly ordered. The bail bond shall also stand discharged. 10. The Appeal stands allowed to the extent indicated above. 11. Send down the LCR to the concerned court below. Appeal allowed.