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2010 DIGILAW 383 (GAU)

Sukur Ali v. State of Assam

2010-06-01

P.K.MUSAHARY

body2010
JUDGMENT P.K. Musahary, J. 1. None appears on behalf of the Appellant when the matter was called upon for hearing today. I have heard Mr. B.B. Gogoi, learned Additional Public Prosecutor, Assam. 2. This appeal is against the judgment and order dated 24.3.03 passed by the learned Additional Sessions Judge (Ad-hoc), Kokrajhar in Sessions Case No. 64/2000 convicting the Appellant under Section 307/324 IPC and sentencing him to undergo 7 years R.I. and to pay a fine of Rs. 1,000/- i/d to undergo additional 3 months S.I. under Section 301 IPC and to undergo 6 months R.I. under Section 324 IPC. Both the sentences are directed to run concurrently. 3. The prosecution case in brief is that on 4.6.98 at about 3.45 P.M. Danswarang Basumatary, Constable No. 65, who was posted at Bengtal O.P. entered the barrack of 1st A.P.T.E battalion in a drunken condition and had verbal altercation followed by fisticuff with constable No. 46 Md. Sukur Ali. Though the other jowans present at that time removed Danswarang Basumatary therefrom, he reentered the said barrack in order to beat up Sukur Ali. But the Appellant, Sukur Ali shot at Danswarang with the departmental SLR rifle he was carrying. The single shot pierced through chest and went out by back as a result of which he sustained grievous injury in his person. He was provided with immediate preliminary medical treatment at Bengtal P.H.C. after which he was sent to G.M.C.H. As there was none else to file the ejahar for Danswarang, one Sri Mon Mohan Deka, S.I. and i/c Bengtal O.P. filed the ejahar of the case in terms of G.D. Entry No. 50 of Nengtal O.P. On completion of the investigation, Police laid the charge sheet against Md. Sukur Ali under Section326/307 IPC. 4. The case was committed to the Court of the learned Sessions Judge, Kokrajhar, whereupon charge under Section 307/326 IPC was framed against the Appellant which was read over and explained to him. The Appellant pleaded not guilty and demanded trial. The prosecution examined in all five witnesses including the I.O. in support of its case. The defence examined no witness and his statement was recorded under Section 313 Code of Criminal Procedure. The victim Sri Danswarang was examined as PW 1. The Appellant pleaded not guilty and demanded trial. The prosecution examined in all five witnesses including the I.O. in support of its case. The defence examined no witness and his statement was recorded under Section 313 Code of Criminal Procedure. The victim Sri Danswarang was examined as PW 1. He deposed that he was serving as Police constable at Bengtal O.P. on 4.6.98 and the incident took place on the said date at about 3.30 P.M. The Appellant was posted at A.P.T.F. No. 1 battalion and the said battalion situates near Bengtal O.P. He went to the A.P.T.F. barrack to meet one of his friends and bring some vegetables and at that time the accused/Appellant, Sukur Ali was sitting on his bed with one SLR gun. According to him, when he entered the barrack and looked back the accused shot him at the upper portion of his right side of his chest due to which he fell down. He somehow managed to get up and came outside but he fell down again. He also stated that he was taken to Bengtal hospital and then shifted to Gauhati Medical College Hospital where he received medical treatment for about one month. He knows the accused from before who used to reside near the police out post. He cannot say why the accused shot at him. 5. His evidence has been supported and corroborated by two eye witnesses, namely PW 3, Rati Ram Sharma and PW 4, Gajen Basumatary. PW 3 is a police constable. As per his deposition, he was present in the barrack when verbal altercation between Danswarang and the Appellant took place in the A.P.T.F. barrack and he was one of the persons, who removed Danswarang from the barrack. This PW 3 was also present when Danswarang re-entered the barrack and the accused Appellant shot at him with his service SLR rifle. He also testified that the injured was shifted to hospital. He further testified that he seized the SLR rifle with which the accused/Appellant shot at the injured person. 6. PW 4, Gajen Basumatary was on sentry duty. He rushed to the police battalion barrack on hearing the firing sound and could see Danswarang received bullet injury on the right side of his chest who fell down on the ground. He further testified that he seized the SLR rifle with which the accused/Appellant shot at the injured person. 6. PW 4, Gajen Basumatary was on sentry duty. He rushed to the police battalion barrack on hearing the firing sound and could see Danswarang received bullet injury on the right side of his chest who fell down on the ground. At that time PW 5, Sri Mon Mohan Deka, S.I. of the O.P. was also present along with PW 4 at the place of occurrence. PW 4 also deposed that the injured Danswarang was shifted to local hospital and thereafter taken to G.M.C.H., where he stayed about one month in the said hospital for treatment of the injured person. PW 5, Mon Mohan Deka, S.I., was posted as incharge of the Police Out Post. According to him, on the date and time of occurrence Danswarang was drunk and he was disturbing the Appellant while he was reading religious book in his barrack. There was an altercation between them and Danswarang was dissuaded and sent to the Police Out Post, but he again came to battalion barrack and then the incident of firing took place. Danswarang came running to police Out Post in injured condition and requested PW 5 to save him. He immediately came to the battalion barrack and seized 19 live bullets, one fired cartridge and one rifle and also made arrangement for shifting the injured person to a local hospital and then to the G.M.C. hospital. In cross-examination, he stated that there was no other person except the accused Appellant, who was carrying the aforesaid SLR. The aforesaid SLR, 19 live bullets and one fired cartridge were seized vide Ext. 1 and sent for FSL examination. The I.O. collected the medical report but the same was not proved by any medical officer. 7. The learned trial Court on the basis of the evidence of prosecution witnesses, particularly PW 3, PW 4 and PW 5 convicted and sentenced the accused/Appellant as stated earlier. The fact that Danswarang was shot by a gun and he received serious injury has been found admitted. It is also found admitted that he was in the G.M.C. hospital for about a month, inasmuch as, the same has been corroborated by PW 4 who remained in the hospital during the treatment period of the injured person. The fact that Danswarang was shot by a gun and he received serious injury has been found admitted. It is also found admitted that he was in the G.M.C. hospital for about a month, inasmuch as, the same has been corroborated by PW 4 who remained in the hospital during the treatment period of the injured person. PW 5, clearly stated that there was no other person except the accused/Appellant when the incident of firing took place. He also testified that accused/Appellant was carrying the service SLR, from which he shot at PW 1 and the said SLR was seized from his possession along with 19 live bullets and one fired cartridge as mentioned above. The aforesaid materials were seized at the place of occurrence in present of four persons including PW 4, Gajen Basumatary. PW 4, as stated earlier, corroborated the evidence of PW 5. PW 4, was present near the place of occurrence and he immediately came to the place of occurrence after hearing the sound of firing and found the accused/Appellant with the service SLR and also saw Danswarang fell down due to receipt of bullet injury. 8. The accused/Appellant, in his statement under Section 313 Code of Criminal Procedure denied his involvement in the case of firing upon Danswarang by a gun, but he has not denied the fact that he was carrying service SLR at the time of occurrence. However, he stated that he is a poor man and he has committed mistake for the first time and he may be excused. 9. Having appreciated the evidence along with the materials available on record, I am of the considered view that the prosecution has been able to prove its case beyond reasonable doubt and the learned trial Court rightly recorded the conviction and sentence which needs no interference in appeal. The impugned conviction and sentence passed vide judgment and order dated 24.3.2003 stands upheld. Consequently, this appeal fails. 10. The accused/Appellant Md. Sukur Ali shall surrender forthwith to serve the sentence. The bail bond stands cancelled. The learned Court below shall take necessary action, if the accused/Appellant fails to surrender to serve the sentence. 11. Send down the LCR forthwith. Appeal dismissed.