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2011 DIGILAW 211 (GAU)

Punaisaikia v. State of Assam

2011-03-14

P.K.MUSAHARY

body2011
1. Heard Mr. P.J. Saikia, learned counsel appearing for the petitioner and Mr. B.B. Gogoi, learned Additional Public Prosecutor, Assam. 2. The accused/petitioner was convicted under section 341/326 of IPC and sentenced to rigorous imprisonment for one month under section 341 and also to suffer rigorous imprisonment for 3 years and to pay Rs. 500 under section 326 IPC and in default to suffer simple imprisonment for one month vide judgment and order dated 11.2.2004 passed by the learned Addl. Chief Judicial Magistrate, North Lakhimpur in G.R. Case No 993/99. 3. Aggrieved by the aforesaid order of conviction and sentence, the petitioner preferred an appeal before the learned Ad hoc Additional Session Judge, Lakhimpur which was registered as Criminal Appeal No. 7(1)/04 and the said appeal was dismissed upholding the conviction and sentence vide judgment and order dated 11.2.2004. The accused/petitioner, being further aggrieved and dissatisfied with the aforesaid judgment and order dated 11.2.2004 has filed the present criminal revision petition. 4. The prosecution story in brief is that, on 3.8.1999 in the evening at around 7.00 P.M. the accused/appellant intercepted one Sri Nagen Saikia and slashed him with a 'Khukuri' inflecting injuries on his both hands while the said Nagen Saikia was on way to the shop of one Akanmani at Ramanichuck. The elder brother of injured lodged a written ejahar with the North Lakhimpur Police Station, whereupon a case being G.R. Case No.993/2009 was registered under sections 341/326 IPC. After investigation, the Investigating Officer submitted the charge sheet against the present accused/petitioner under the aforesaid sections of IPC. The injured was taken to Civil Hospital, North Lakhimpur, where he was examined and treated for 23 days. The learned trial court framed the charges under section 341/326 IPC and on the charges being read over and explained, the accused/petitioner pleaded not guilty and demanded trial. 5. Although the prosecution examined as many as 8(eight) witnesses including the Medical Officer and the Investigating Officer, there was no eye witness to the aforesaid witness. The Investigating Officer did not seize the crime weapon, i.e., 'Khukuri' or any other article bearing the blood of any human being. On the basis of the evidence and materials on record, and after hearing the learned counsel for the parties, the learned trial court awarded the aforesaid conviction and sentence which was also upheld by the learned appellate court below. 6. Mr. On the basis of the evidence and materials on record, and after hearing the learned counsel for the parties, the learned trial court awarded the aforesaid conviction and sentence which was also upheld by the learned appellate court below. 6. Mr. P. J. Saikia, learned counsel appearing for the accused/petitioner submits that there is an evidence on record that the informant after having came to know about the incident, came to the place of occurrence and removed the injured to the Police Station and lodged an FIR on 3.8.1999, and thereafter shifted the injured to the Civil Hospital by the police. According to the learned counsel, the FIR (Ext.1) is a second FIR which was filed on the next day of the occurrence, i.e., on 4.8.1999. The first FIR which was filed on 3.8.1999 has not been brought on record and the police initiated investigation on the basis of the FIR which was filed on 4.8.1999 (Ext.1). The police should have taken and treated the FIR filed on 3.8.1999 as the first FIR and should have been registered for initiating the investigation. In this regard, the learned counsel has referred to the evidence of PW1, PW2, and PW8 respectively. Even assuming but not admitting, according to the learned counsel, no FIR was filed on 3.8.1999 and if it is accepted that the informant filed only Ext.1 FIR dated 4.8.1999, it is not acceptable, inasmuch as, the same was filed after 22 hrs from the time of occurrence and there being no explanation for such delay, the prosecution story must be disbelieved and no conviction could be awarded against the accused/petitioner. 7. The prosecution has not explained as to why the 'Khukuri' which was used for inflicting alleged injury upon the informant's father was not seized. It has also not been explained as to why any incriminating article was not recovered or the blood which must have been found on the spot, was not collected from the cite of place of occurrence and sent for FSL examination to ascertain whether it was human blood and it belonged to the injured person. 8. From the records made available before this court, it has become an admitted position that there is no eye witness to the aforesaid alleged incident. 8. From the records made available before this court, it has become an admitted position that there is no eye witness to the aforesaid alleged incident. PW5 and PW6 are the independent witnesses, who hail from the place of occurrence, but their evidence could not lend any support to the prosecution as they are not eye witnesses. They are only hearsay witnesses, who came to know about the incident only on the next day of occurrence. 9. Under such circumstances, the court has to examine whether on the basis of the evidence of the injured person only the conviction and sentence could be recorded. The prosecution did not examine the Officer in-charge of the North Lakhimpur Police Station to testify as to whether any FIR was lodged on the very day of the alleged occurrence i.e., 3.8.1999. He was the best person to testify the same because he is to receive the written ejahar and register the case in accordance with law. By not producing and examining the Officer in-charge during trial, the defence has been deprived of the opportunity of cross-examination of the Officer in-charge, inasmuch as, PW2 deposed in cross-examination that he brought the injured person to the Police Station and lodged an FIR on 3.8.1999. The prosecution having kept aside the FIR dated 3.8.1999 and having not examined a scope for legal presumption has been provided to the effect that the prosecution has withheld vital documentary evidence, which if placed before the court would have gone against it. Such presumption can be drawn based on the evidence of PW1 as there is an old grudge due to filing of criminal case against the victim. 10. In my considered view, the prosecution committed serious illegality in not bringing on record the FIR dated 3.8.1999 which was lodged by the informant on the very day of occurrence and in proceeding with the second FIR i.e., Ext.l and also not examining the Officer in-charge concerned. More over, the prosecution also committed serious irregularity in conducting the investigation without seizing the crime weapon and convicting and sentencing the accused/petitioner only on the basis of evidence of the injured person, PW2. In my considered opinion, the aforesaid irregularity and illegality committed by the prosecution in conducting the investigation and the trial vitiated the entire proceeding. More over, the prosecution also committed serious irregularity in conducting the investigation without seizing the crime weapon and convicting and sentencing the accused/petitioner only on the basis of evidence of the injured person, PW2. In my considered opinion, the aforesaid irregularity and illegality committed by the prosecution in conducting the investigation and the trial vitiated the entire proceeding. The prosecution miserably failed to prove the charges against the accused/petitioner and, as such, the impugned judgment and order of convicting and sentencing the accused/petitioner is set aside, needs interference by this court. 11. Accordingly, the revision petition stands allowed. The accused/petitioner, namely, Sri Punai Saikia is entitled to acquittal. It is ordered accordingly. The accused/petitioner shall be set at liberty forthwith, if his further detention is not required in connection with any other case. The bail bond stands discharged. 12. Send down the LCE forthwith.