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2009 DIGILAW 912 (GAU)

Dhanewsari Medhi v. State of Assam

2009-12-17

P.K.MUSAHARY

body2009
JUDGMENT P.K. Musahary, J. 1. Heard Mr. S.C. Biswas Learned Counsel for the accused/appellant. Heard also Mr. B.B. Gogoi learned Addl. P.P., Assam. 2. This appeal has been represented against the judgment and order dated 30.9.2003 passed by Ad hoc Additional Sessions Judge No. 1 Kamrup, Guwahati, in sessions Case No. 80(K) of 1999 under Section 325, IPC convicting the accused/appellants and sentencing him to under go simple imprisonment for 3 (three) years and to pay fine of Rs. 3000 and in default to undergo for SI for another 6 (six) months for his conviction under Section 325, IPC. 3. The story projected by the prosecution is that an FIR was lodged at Kukurmara Patrol post on 10.3.1998, by one Sri Bhupen Kalita informing the police that on 9.3.1998 at about 2 p.m. at village Jiakur, the accused/appellant, Sri Dhaneswar Medhi, after entering in to the campus of Sri Dharma Medhi, assaulted the latter's wife Smt. Harumala Medhi and caused grievous hurt to her. On receipt of the FIR a crime, being Chhaygaon P.S. Case No. 50 of 1998 was registered under Section 447/325/307, IPC. After completion of the investigation the police laid charge sheet against the accused/appellant under Section 447/323/307, IPC and subsequently, charge was framed under Section 307, IPC against the accused/appellant, who pleaded not guilty and claimed to be tried. 4. The prosecution, in order to bring home the charge against the accused/appellant, examined 8 (eight) witnesses including the Investigating Officer and the Medical Officer. After trial and on hearing the Learned Counsel for the parties, the learned trial court convicted and sentenced the accused/appellant as mentioned earlier. 5. The victim woman was examined as PW5. Maintaining the allegation made in the FIR, she deposed before the learned trial court that on 9.3.1998, while she was taking lunch inside the house, the accused/appellant came to the campus and called her out to the courtyard and dealt blow on her face with shoes. She sustained injury on her teeth and 5 (five) of her teeth became shaky from where active blood was oozing out. She was also fainted and was shifted to Chhaygaon CHC and thereafter she was referred to Regional Dental College, Guwahati, for further treatment. Where she took treatment for 17 days and five of her teeth were extracted for which she could not take meal properly. 6. She was also fainted and was shifted to Chhaygaon CHC and thereafter she was referred to Regional Dental College, Guwahati, for further treatment. Where she took treatment for 17 days and five of her teeth were extracted for which she could not take meal properly. 6. There is no eye-witnesses to the alleged incidence that took place inside the house. However, the Medical Officer Dr. Paresh Sarma was examined as PW8. He stated that he examined the victim woman, PW7 and prepared a report. The said medical report was proved by him and marked as Ext. 4. The said medical report Ext. 4 is reproduced below: Date Time and Place of examination: 9.3.1998, 4 p.m., Chhaygaon CHC. She was hit by some person over her lips OLE (1) active bleeding from root of: (a) 1st 2nd incisor of lower jaw or both side (b) 1st 2nd incisor of Rt. side and 1st incisor as Lt. Side of upper jaw (2) Laceration over gum of all incisor of upper and lower jaw. (3) Swelling (Bruse) of both upper and lower lips (involving all portras of upper and lower lips). She was advised to proceed to Regional Dental Collage, Guwahati as there is adduce bleeding from gums and to rule out possible dislocation of the teeth. IMP: Comments on injuries over the gums and teeth could not be made. But the injury over the lips are simple and appeared to have caused by blunt object. 7. In his oral evidence the Medical Officer has stated due to non-availability of the X-ray report he could not ascertain the nature of the injury of the gum and the teeth, He also stated that, the injuries might be caused by dashing against a standing hard object like wall, post, etc., at running state. In his deposition, PW8 also stated that he failed to give comment on the nature of injury over the teeth and gum but injuries over the lips are simple which were caused by blunt weapons. 8. If the evidence of the victim woman is read with the evidence of the Medical Officer PW8, it is found that the victim woman received injury which was simple in nature and it is also found that she received the said injury on her teeth and there was active bleeding from the said teeth due to such injury. 8. If the evidence of the victim woman is read with the evidence of the Medical Officer PW8, it is found that the victim woman received injury which was simple in nature and it is also found that she received the said injury on her teeth and there was active bleeding from the said teeth due to such injury. If the opinion of the Medical Officer is accepted that the injury might have been caused by blunt object it could not be ruled out that the injury was caused by fist blow. And if it is so, there could not be a single opinion that the victim woman received the injury by fall or by dashing against hard/blunt object. The incident took place during daytime inside the house. There was hardly any possibility of the accused woman falling on the ground against any blunt object or dashed against the hard object or wall. 9. The admitted position is that a quarrel took place between the accused/appellant and the victim woman. The accused/person is a young man and out of anger, during the quarrel or exchange of words, at the heat of the moment, he might have given the fist blow. But there is no evidence to that fact inasmuch as no eye-witnesses was available. However, the Medical Report on the injury is somewhat tale tell as has been mentioned and reproduced earlier. 10. Mr. Biswas, Learned Counsel for the accused/appellant, submits that the prosecution could not prove its case under Section 307, IPC, in the accepted principle of beyond all reasonable doubt. The learned trial court for want of sufficient proof, convicted the accused/appellant under Section 325 IPC. According to him, in the above facts and circumstances and on the basis of above evidence, the accused/appellant in not liable to be convicted under Section 325, IPC inasmuch as there is no material or evidence on record supporting a case of causing grievous hurt voluntarily on the person of the victim woman. It was due to the exchange of words and at the heat of the moment, the accused/ appellant happened to deal fist blow, which would not attract offence under Section 325, IPC. Such act, at best may attract offence under Section 334, IPC and the accused/ appellant may be convicted and sentenced under Section 325, IPC, which entails lesser punishment. 11. Such act, at best may attract offence under Section 334, IPC and the accused/ appellant may be convicted and sentenced under Section 325, IPC, which entails lesser punishment. 11. I have considered the submission made by the Learned Counsel for the accused/ appellant. I find the said submission fair, reasonable and sound it has already been observed that the accused/appellant is a young man and he was engaged in exchange of words with her sister-in-law and there is nothing to show from the evidence on record that he voluntarily caused grievous injury on her. It can be inferred that the accused/ appellant, out of anger, during the exchange of words, at the heat of the moment, dealt a blow on the person of the victim woman without any previous intention. 12. The nature of injury being simple in nature, in my considered view, under the facts and circumstances of this Case and the materials and evidence on record, the accused/ appellant may be convicted under Section 334, IPC and sentenced to pay fine of Rs. 500. 13. The appeal, thus, stands partly allowed with the aforesaid modification in the conviction and sentence. The fine amount of Rs. 500 shall be deposited with the court of CJM, Kamrup, Guwahati and the said amount be paid to the victim woman on proper verification and identification. 14. LCR be returned.