Research › Search › Judgment

Gauhati High Court · body

2009 DIGILAW 529 (GAU)

Kirandeka v. State of Assam

2009-08-06

P.K.MUSAHARY

body2009
JUDGMENT P.K. Musahary, J. 1. Heard Mr. A. Choudhury, learned Counsel for the Appellant and also heard Mr. B.B. Gogoi, learned Addl. P.P., Assam. 2. This appeal has been preferred against the judgment and order dated 16.11.2002 passed by learned Adhoc Addl. Sessions Judge No. 1, Kamrup (Assam) in Sessions Case No. 230 (K)/2001, convicting the accused-Appellant under Section 307 IPC and sentencing him to undergo to simple imprisonment for 3 years and to pay fine of Rs. 500/- and in default of payment of fine to undergo simple imprisonment for another one month. 3. Briefly stated, the prosecution story is that on 22.06.2001 at about 4.30 PM at Salmara under Baihata Chariali P.S. the informant, Shri Khogen Deka, S/o Shri Saganmal Deka of the said village went to their seedling orchard to see the growth of seedling which was situated near the residence of accused, Shri Kiran Deka. After entering into the said orchard he found that a goat was roped inside the seedling bed and the goat was feeding on the seedlings and damaging it. He found that somebody purposefully roped the goat in the seedling bed. Then he tried to pull out the knot of the rope from the seedling bed and at that moment the accused, Kiran Deka arrived there and inflicted a blow with a dao on the back side of his head with an attempt to kill him and caused grievous injury to him. The accused then fled away immediately. The informant, Shri Khogen Deka was immediately rushed to the nearby clinic and then he was shifted to Guwahati Medical College Hospital with the help of some other persons. On a written FIR lodged by the informant, a case being Baihata Chariali P.S. Case No. 48 of 2001 under Sections 326/307/506 IPC was registered. The police investigated the matter and after completion of the investigation, submitted the charge sheet against the accused-Appellant under Sections 307/326/506 IPC. The learned S.D.J.M., Rangia committed the case to the Court of Sessions, Kamrup, Guwahati. On receipt of the case records, the learned trial Court framed the charges under Sections 307/326 IPC against the accused-Appellant. The charges were read over and explained to the accused-Appellant, he pleaded not guilty and claimed to stand the trial. 4. The prosecution examined as many as 7 witnesses including the I.O. and the M.O. to establish the charge against the accused-Appellant. The charges were read over and explained to the accused-Appellant, he pleaded not guilty and claimed to stand the trial. 4. The prosecution examined as many as 7 witnesses including the I.O. and the M.O. to establish the charge against the accused-Appellant. The defence examined only one witness. The informant and victim, Shri Khogen Deka was examined as PW 1. Maintaining the allegations made in the FIR against the accused-Appellant, the PW 1, deposed that he visited the place of seedling orchard on 22.06.2001 at about 3 PM and he found a goat was roped for feeding the seedlings by some body purposefully. He removed the knot of the rope and called out the people of the accused's house as the said goat belonged to them. Then, the wife and elder son of the accused came out and then he asked why they had roped the goat over the seedling bed. On his enquiry, they replied that the goat entered into the seedlings bed by getting the rope disconnected from the original roping place. Not being satisfied with the answer, the informant told them that he would take the goat to the village headman. Then the wife of the accused asked him not to take the goat to the village headman and assured him not to repeat such thing again. During such conversation, the accused Kiran Deka came from the back side with a dao in his hand and inflicted a blow, causing serious injury on the backside of his head, just above the neck. He pressed the injury with a hand and cried out for help. He called out Giridhar Deka (P W 4) and at that moment, the accused fled away with dao. Shri Giridhar Deka (PW 4), Mintu Sarma (PW 5) lifted him up and brought him in an auto-rickshaw to a private clinic of Dr. Bolin Deka at Baihata Chariali where he was given preliminary treatment and thereafter referred to Guwahati Medical College Hospital. 5. The informant was hospitalized in the said medical college hospital, where he had to stay for one night and was allowed to come on the next day. As per the doctor's advice, he took rest for one month and it took one month for completely healing up the injury. During the said period he could not work and till the date of deposition, he was feeling pain. As per the doctor's advice, he took rest for one month and it took one month for completely healing up the injury. During the said period he could not work and till the date of deposition, he was feeling pain. In cross-examination, PW 1 denied the suggestion of the defence that he pulled up the accused-wife by her hair and assaulted her. PW 2, Shri Khanindra Sarma, PW 3, Shri Pabitra Deka, PW 4, Shri Giridhar Deka and PW 5, Shri Mintu Sarma are the witnesses, who came to the spot after the occurrence. They showed the victim, PW 1 with the injury and blood was oozing out therefrom. Amongst the persons gathered at the place of occurrence, P Ws 4 & 5, including Khanindra Sarma and Rajen Deka, shifted PW 1 in an auto-rickshaw to the clinic of Dr. Bolin Deka for preliminary treatment. The Officer-in-charge, i.e., the I.O. of the case, Sri Rohini Buragohain, was examined, as PW 7. There is no discussion in the impugned judgment about his evidence. He deposed that the FIR (Exh-1) was received by him on 23.06.2001 and it was sent by the informant through someone. After registering the case, he visited the place of occurrence and examined some local witnesses. He visited the house of the accused-Appellant but he was not found at home. He could not seize the crime weapon i.e. dao allegedly used by the accused-person. The accused-person surrendered before the Police Station on 10.08.2001. He also stated that he examined the wife of the accused-Appellant. According to him, he received a copy of the order from the Executive Magistrate. Rangia, regarding the land dispute between the accused and the informant, which he had exhibited. 6. The prosecution examined the Dr. Pulin Ch. Kumar, Assistant Professor of Guwahati Medical College as PW 6. He deposed that he examined Khogen Deka in connection with the Baihata Chariali P.S. Case No. 48/ 2001, on being produced and identified by one Shri Narapathi Deka and found a deep cut injury over the back of head scalp towards left half of size about 10 cm X 2 inch X 1 inch (deep). He also found the injury was stitched before examination and there was no active bleeding at the time he conducted examination. The age of the injury, according to him, was about 'six hours' and the type of weapon is 'sharp cutting weapon'. He also found the injury was stitched before examination and there was no active bleeding at the time he conducted examination. The age of the injury, according to him, was about 'six hours' and the type of weapon is 'sharp cutting weapon'. In his opinion, the injury was grievous in nature. He proved the medical report, which was marked as Exhibit-2 and his signature thereon as Exhibit-2(1) and the signature of Causality Officer, Guwahati Medical College as Exhibit-2(2). 7. The defence examined Smti. Godhuli Deka as DW-1. According to her, she was pulled up by her hair by the informant, Shri Khogen Deka and was grounded. She had mentioned in her deposition about the land dispute between the uncle of the Kamini Deka, the informant and her husband, which is pending in the Rangia Court. In cross-examination by the prosecution counsel, she stated that she had no knowledge about the assault. She came to know later on about the fact that Khogen Deka, informant, was under medical treatment. 8. Mr. Choudhury, learned Counsel for the accused-Appellant, on the basis of the aforesaid evidence on record, submits that there are some contradictions in regard to filing of the FIR inasmuch as it was stated by PW 1 that it was filed on 22.06.2001 i.e. on the date of occurrence, but the Officer-in-Charge and the I.O. of the case, who was examined as PW 7, clearly stated that he received the same on the next date i.e. 23.06.2001. There was no explanation whatsoever from the prosecution about the said contradiction. The I.O. admittedly, according to Mr. Choudhury, failed to seize the dao by which the injury was allegedly caused and the failure on the part of the prosecution to seize the said dao has made the story of the prosecution as unbelievable. It is also submitted by him that the Dr. Bolin Deka of Baihata Chariali Clinic, who rendered the preliminary treatment to PW1 was not examined by the prosecution to testify the fact that the victim was initially treated in his clinic. The timing of the occurrence had been given as at about 4.30 PM in the FIR but some witnesses, who visited the place of occurrence after the incident mentioned it as at 3 PM. It is also pointed out by Mr. Choudhury that PW 1 himself mentioned the time of occurrence as at about 3.00 PM. The timing of the occurrence had been given as at about 4.30 PM in the FIR but some witnesses, who visited the place of occurrence after the incident mentioned it as at 3 PM. It is also pointed out by Mr. Choudhury that PW 1 himself mentioned the time of occurrence as at about 3.00 PM. In the FIR two accused-persons, namely, Kiran Deka, the present Appellant and one Anil Deka were named, but charge sheet had been filed by the police against Kiran Deka only. All these contradictions and discrepancies have destroyed the veracity of the allegations and credibility of the evidence of the prosecution witnesses. 9. Moreover, it is submitted by Mr. Choudhury that, even assuming but not admitting, that the injury was caused by the accused-Appellant, but it was not the intention to kill him because only one assault was made on the person of the victim. It was an action on the part of the Appellant on a sudden provocation when he saw his wife was pulled down by holding her hair by the informant and as such, considering the above facts and circumstances, the accused-Appellant may be convicted under Section 335 IPC. The punishment prescribed for which is 4 years maximum and with a fine to the extent of Rs. 2,000/-or both. 10. I have carefully gone through the FIR and considered the evidences on record. Regarding the lodging of FIR, it is to be noted that the informant-victim immediately after the alleged incident was taken to nearby clinic at Baihata Chariali by some persons and thereafter he was shifted to Guwahati Medical College Hospital. It was not unlikely that the FIR was prepared on 22.06.2001 and the said FIR could be filed through some of his persons on the next date i.e. 23.06.2001 as because he had to remain indoor in the Medical College Hospital. Although no explanation has been offered by the prosecution, such trivial contradictory cannot be taken seriously to say that the prosecution story is not believable. Regarding the timing and date of the occurrence, there may be some contradiction but one is to see the date and time put in the FIR i.e. the first information report to the police. Although no explanation has been offered by the prosecution, such trivial contradictory cannot be taken seriously to say that the prosecution story is not believable. Regarding the timing and date of the occurrence, there may be some contradiction but one is to see the date and time put in the FIR i.e. the first information report to the police. It is not unnatural that the witness from the rural area may forget about the exact date and time of the occurrence at the time of deposition before the Court and in my considered view such misquotation by the witnesses would not materially affect the credibility of the witnesses. 11. It is admitted that the victim was found in an injured condition at the place of occurrence and he was removed therefrom by some witnesses at Baihata Chariali Clinic for treatment. At least two witnesses namely PW 4 and PW 5 testified the same. It is not necessary that all the witnesses are required to be examined by the prosecution. These two PW 4 and PW 5 have categorically stated that they, after hearing the 'hallah', came to the place of occurrence and found the victim in an injured condition and they arranged for his shifting to the Clinic. The evidence of these witnesses could not be destroyed by the defence in cross-examination. Therefore, it is proved that P W1 received injury and he was removed from the said place of occurrence to the clinic at Baihata Chariali. 12. From the evidence, it is found that there is no eyewitness to the actual occurrence but PW 1 categorically stated that it was none but the accused-Appellant, Shri Kiran Deka, who struck the blow by a dao on him at the backside of his head over neck and he could identify him. Although the defence thoroughly cross-examined the PW 1, his evidence to the effect that he saw the accused-Appellant striking dao blow on him and that he could identify, could not be shattered. On the other hand, the defence made suggestion to this witness that he pulled up the wife of the accused-Appellant by hair and grounded her, but it was denied by PW 1. On the other hand, the defence made suggestion to this witness that he pulled up the wife of the accused-Appellant by hair and grounded her, but it was denied by PW 1. From the nature of cross-examination it can be ascertained that the defence took the plea that the accused-Appellant had to or rather compelled to strike the dao blow on PW 1 as he found his wife was being pulled up and grounded by PW 1. Even if the defence plea is taken as correct, it is not expected that the accused-Appellant should suddenly strike a dao blow on him without asking as to why he was doing so. Moreover, from the evidence it could be seen that there was no altercation with the accused-Appellant before he resorted to assault by a dao. In such circumstances, it cannot be said that the accused-Appellant was provoked suddenly and he had to assault PW 1 at the heat of the moment. Non production of crime weapon/dao by the prosecution, in my considered view, is not material inasmuch as the injury, as per PW 6, was caused by a sharp cutting weapon. The injury has been described as 10 cm X 2 inch x 1 inch (deep). Therefore, the nature of injury fits in the type of weapon, i.e. the sharp cutting weapon used by the accused. 13. The defence tried to prove through DW-1, wife of the accused-Appellant that there was an enmity between the informant and the Appellant over the plot of land and a Court case is pending for the same. But at the same time in cross-examination, she has deposed that she does not know anything about the alleged occurrence. If would imply that the plea taken by the defence that the accused-Appellant struck the dao blow on PW 1 out of sudden provocation is an afterthought. Taking into consideration of the facts and circumstances of the case and also the evidence on record as discussed and appreciated above. I do not find any valid ground for interference with the impugned judgment and order passed by the learned trial Court convicting him as described earlier. The conviction recorded by the learned trial Court is not warranted and the same stands upheld. 14. It is stated at the Bar by Mr. I do not find any valid ground for interference with the impugned judgment and order passed by the learned trial Court convicting him as described earlier. The conviction recorded by the learned trial Court is not warranted and the same stands upheld. 14. It is stated at the Bar by Mr. Choudhury, learned Counsel for the Appellant, that the Appellant is more than 50 years of age and he is maintaining his life and family working as a cycle mechanic at Baihata Chariali and his family members would suffer if the sentence is not reduced to one year. Under the aforesaid facts and circumstances, the sentence is reduced to simple imprisonment of one year with a fine of Rs. 3,000/- and in default of payment of fine, another 3 months simple imprisonment It is directed that the amount of Rs. 3,000/-, if deposited with the learned trial Court, the same be paid to the victim (PW1). 15. The accused-Appellant, Shri Kiran Deka shall surrender before the learned trial Court within one week from today to serve the sentence of one year simple imprisonment and also pay the fine amount, as directed, within the period of sentence. If he fails to surrender, as directed, the learned trial Court shall take necessary step in accordance with law. The period of detention, during trial, shall be set off. 16. The present appeal stands partly allowed with the aforesaid modification in the sentence. 17. Send down the LCR to the Court below forthwith.