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2012 DIGILAW 36 (GAU)

Dulu Kakati v. State of Assam

2012-01-10

I.A.ANSARI

body2012
JUDGMENT I.A. Ansari, J. 1. This appeal is directed against the judgment and order, dated 12.4.2004, passed by the Additional Sessions Judge (Ad hoc), Barpeta, in Sessions Case No. 51 of 2003, convicting the accused-appellant under Section 324, IPC and sentencing him to undergo rigorous imprisonment for 3 months with fine of Rs. 1,000/- and, in default of payment of fine, undergo rigorous imprisonment for one month. The case of the prosecution may, in brief, be described, thus : On 26.5.2002, at about 5.30 p.m., when PW-2 (Dilip Goswami), was standing in front of his shop, the accused- appellant, Dulu Kakati came there with a scissors and attempted to give a blow, on the chest of PW-2 by the said scissors, but as PW-2 tried to save himself by raising his hands, the blow, given by the accused-appellant with the scissors fell on the right hand of PW-2 and as a result of thereof, PW-2 suffered injury in the middle of his right arm. On being so assaulted, PW-2 fainted and fell down, whereupon, he was carried to Pathsala Hospital and, from there, he was shifted to Baruah Nursing Home, where he remained under treatment for a period of 6 days. On receiving information from the people in the neighbourhood of the shop as regards the occurrence, a First Information Report (in short 'FIR') was lodged, in this regard, by Prasanta Kumar Goswami (PW-1), younger brother of the injured. This FIR came to be registered as Pattacharkuchi PS Case No. 88/02, under Sections 448, 326 and 307, IPC. On completion of investigation, police laid charge-sheet against the appellant under Section 448/326/307, IPC. 2. During trial, charges, under Sections 448, 326 and 307, IPC, were framed against the accused. To the charges, so framed, the accused pleaded not guilty. The accused was, then, examined under Section 313, Cr. PC and, in his examination, the accused denied to have committed the offence, which was alleged to have been committed by him, the case of the defence being that of total denial. No evidence was adduced by the defence. On completion of trial, the learned trial Court did not find the accused guilty of the offences under Sections 448, 326 and 307, IPC, but found him guilty of the offence under Section 324, IPC and convicted him accordingly and passed sentence against him as mentioned above. No evidence was adduced by the defence. On completion of trial, the learned trial Court did not find the accused guilty of the offences under Sections 448, 326 and 307, IPC, but found him guilty of the offence under Section 324, IPC and convicted him accordingly and passed sentence against him as mentioned above. Aggrieved by his conviction and the sentence passed against him, the accused has preferred this appeal. 3. I have heard Mr. K. Agarwal, learned counsel for the appellant, and Mr. D. Das, learned Additional Public Prosecutor, Assam. 4. To bring home the charges, the prosecution examined as many as ten witnesses, PW-1 being the informant, PW-2 being the injured, PW-5 was the doctor and PW-10 being the Investigating Officer, As far as the remaining witnesses are concerned, though they were claimed to be eye-witnesses, all of them turned hostile. What is, however, necessary to bear in mind is that, while these witnesses, namely, PW-3, PW-4, PW-5, PW-6 PW-7 did not name the accused as the assailant, they did concede to the effect that an occurrence of assault on PW-2 had taken place at the shop of PW-2 and PW-2 was injured by the assault. 5. Bearing the above aspects in mind, when we turn to the evidence of the injured (PW-2), his evidence is to the effect that, on the day of the occurrence, at about 5-00/5-30 p.m., when he was present at his shop, the accused came there holding a scissors in his hand and attempted to give a blow with the scissors on his (PW-2's) chest, but, as he (PW-2) raised his hands to save himself from the assault, the blow, given by the accused with the scissors, fell on his (PW-2's) right hand, whereupon PW-2 lost his sense, he was carried to Pathsala Hospital and, later on, he was admitted and treated at Baruah Nursing Home, where he remained for about 6 days. 6. What is, now, of immense importance to note is that in his cross-examination, PW-2 has admitted that he did not know the accused from before the day of the occurrence and that he gathered the name of the accused from the people, who were in the neighbourhood of his shop. What is, however, important to note, in the evidence of PW-2, is that he had clearly deposed that the accused remained at his (PW-2's) shop for about 2/3 minutes. What is, however, important to note, in the evidence of PW-2, is that he had clearly deposed that the accused remained at his (PW-2's) shop for about 2/3 minutes. Thus, the present one is not a case, wherein PW-2 can be claimed to have had a mere fleeting glance of the person, who had given a blow with a scissors on him (PW-2). 7. It needs to be, now, pointed out that it has been contended, on behalf of the accused-appellant, that the identification of the accused having not preceded by a test-identification parade, his (PW2's) evidence, identifying the accused, as the assailant, can be given no credence. In this regard, suffice it to point out here that the test-identification parade is a stage during investigation of a case and, hence, it does not form a part of substantive evidence. Substantive evidence is the identification of an accused at the trial. 8. In the case at hand, PW-2 has clearly identified the accused-appellant as his assailant and this is the substantive piece of evidence against the accused. In the trial, nothing, in particular, could be elicited by the defendant from the cross-examination of PW-2 to show that he made a mistake in recognizing and/or identifying the accused-appellant. 9. What emerges from the above discussion is that it was the accused-appellant who had attempted to give a blow, with a scissors, on the chest of PW-2, but as PW-2 resisted the attempt of the accused-appellant by raising his right hand, the blow, given by the accused-appellant, fell on the right hand of PW-2 and PW-2 sustained stab injury, which according to the doctor (PW-5), was of 1/2" x 1/2" size, the nature of the injury was grievous and the same had been caused by a sharp weapon. In his cross-examination, the doctor (PW-5) has clearly deposed that the injury could have been caused by a scissors. 10. In the light of the above discussions of the evidence on record, this Court does not find any reason to disbelieve the evidence of PW-2 and his evidence is clinching and proves beyond any reasonable doubt that it was the accused-appellant, who has injured PW-2 in the manner as have been pointed out above. 11. 10. In the light of the above discussions of the evidence on record, this Court does not find any reason to disbelieve the evidence of PW-2 and his evidence is clinching and proves beyond any reasonable doubt that it was the accused-appellant, who has injured PW-2 in the manner as have been pointed out above. 11. In the face of the evidence on record, there can be no escape from the conclusion that the accused-appellant had voluntarily caused hurt to PW-2 with a dangerous weapon, such as, scissors, which can be used to stabbing a person and which, when used as a weapon of offence, is likely to cause death. The conviction of the accused-appellant under Section 324, IPC, cannot, therefore, be said to be not sustainable in facts or in law. This Court, thus, does not find any reason to interfere with the conviction of the accused-appellant. 12. Coming to the question of sentence, it may be noted that the present case is about ten years old and the accused-appellant had remained in custody for 27 days during the period of investigation. In such circumstances, this Court is of the view that, while the conviction of the accused-appellant, under Section 324, IPC, is not bad in law, the sentence of 3 months, rigorous imprisonment is excessive, harsh and unreasonable. 13. While, therefore, the conviction of the accused-appellant, under Section 324, IPC, is not interfered with, the sentence is modified to the extent that the accused-appellant is hereby sentenced to suffer imprisonment for a period of 27 days, which he has already undergone, and, therefore, he needs to pay the fine of Rs. 1,000/- and, in default of payment of fine, he shall suffer rigorous imprisonment for a period of 5 (five) days. The fine shall be deposited by the accused-appellant within a period of one month from today. In the event of his failure to make payment of fine, the sentence of imprisonment, as directed hereinbefore, shall follow. 14. With the modification of the sentence, passed against the accused- appellant, as indicated hereinabove, this appeal stands disposed of. Send back the LCR.