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Gauhati High Court · body

2012 DIGILAW 44 (GAU)

Nabdishwar Roy and Ors. v. State of Assam

2012-01-10

I.A.ANSARI

body2012
1. This is an appeal against the judgment and order, dated 19.5.2004, passed, in Sessions Case No.39/2002, by the learned Assistant Sessions Judge-1, Cachar, Silchar, convicting the accused-appellants under sections 148 and 326, IPC and sentenced them for their conviction under section 148, IPC, to pay fine of Rs.2,000 and, in default of payment of fine, suffer rigorous imprisonment for four months and also to suffer, for their conviction under section 326, IPC, rigorous imprisonment for ten years each with fine of Rs. 3,000 and, in default of payment of fine, rigorous imprisonment for a further period of six months. The learned appellate court has also directed the accused-appellants to pay to the injured, i.e., PW1, a sum of Rs.10,000 as compensation. Aggrieved by their conviction, the sentences passed against them and the direction given to them to pay compensation, as indicated hereinbefore, the accused-appellants have preferred this appeal. 2. The case of the prosecution, as unfolded at the trial, may, in brief, be described, thus : On 17.1.1999, at about 9 am, while Md. Chayer Ali Choudhury (PW1) along with his cousin, Namar Ali (PW3), were collecting firewood on the tilla (i.e., a small hillock) of Moni Lal Roy, accused Ajit Roy, Samar Roy, Sankar Roy, Sishu Roy, Nabadish Roy, all sons of Gopendra Roy, came in a body along with Gopendra Roy, armed with deadly weapons and assaulted PW1, severed his right hand from near the wrist joint by giving a blow with dao. On being so assaulted, PW1 cried out and on hearing his cries, Namar Ali (PW3) came running to the place of occurrence and found PW1 in injured condition with his right hand severed from near his wrist joint, whereupon Md. Razak Ali Choudhury, brother of Chayer Ali, lodged a First Information Report at Algapur Police Station. Based on this FIR, Algapur Police Station Case No. 05/1999 under section 147/148/149/341/307, IPC was registered and, on completion of investigation, police laid charge-sheet against the accused-appellants and the said Gopendra Roy (since acquitted) under section 147/148,149/326/307, IPC. 3. During trial, charges, under section 147/148/149/326/307, IPC, were framed against all the accused named in the charge-sheet and all the accused-appellants and the said Gopendra Roy pleaded not guilty thereto. 4. In support of their case, prosecution examined as many as six witnesses. 3. During trial, charges, under section 147/148/149/326/307, IPC, were framed against all the accused named in the charge-sheet and all the accused-appellants and the said Gopendra Roy pleaded not guilty thereto. 4. In support of their case, prosecution examined as many as six witnesses. The accused were, then, examined under section 313, Cr.PC and in their examination aforementioned, they denied to have committed the offences, which were alleged to have been committed by them, the case of defence being that of total denial. No evidence was, however, adduced by the defence. On completion of the trial, the learned trial court, having held Gopendra Roy not guilty of the offences charge with, acquitted him accordingly, but found the present appellants guilty of the offences under sections 148 and 326 of the IPC and passed, besides directing the appellants to pay the said sum of Rs.10,000 as compensation to the injured, sentences against them as mentioned above. Aggrieved by their conviction and the sentences passed against them and also the direction to pay compensation to the injured, the convicted persons have preferred this appeal. 5. I have heard Ms B. Sharma, learned counsel, appearing on behalf of the appellants, and Mr. Z. Kamar, learned Public Prosecutor, Assam. 6. While considering the present appeal, it needs to be noted that PW1, who is the injured, and PW3, who was present near PW1 at the time of the alleged occurrence, are the two vital witnesses. According to the evidence of PW1, while he was collecting firewood on the tilla (a small hillock) of Mohanpur Jungle, 4-5 persons came, suddenly, from the back side, caught hold of him and asked him why he was stealing firewood and, then, they also asked PW1 to keep his hand on the stump of a tree and when PW1 kept his right hand on the stump, one of the persons, who had so arrived there, dealt a blow with a dao, the blow fell on his right hand and his right hand got severed from just below the wrist joint. It is in the evidence of PW1 that on cries being raised by him, his cousin, Namar Ali (PW3), who had accompanied him to the jungle, came and found him in an injured condition. The learned trial court has, indeed, taken note of the fact that PW1 is a person with his hand severed from the wrist joint. 7. It is in the evidence of PW1 that on cries being raised by him, his cousin, Namar Ali (PW3), who had accompanied him to the jungle, came and found him in an injured condition. The learned trial court has, indeed, taken note of the fact that PW1 is a person with his hand severed from the wrist joint. 7. Close on the heels of the evidence of PW1, PW3 has deposed that both of them, (i.e., PW1 and PW3) had gone to the jungle to collect firewood. PW3 has further deposed that he does not know how the occurrence took place inasmuch as he had not seen the occurrence of assault on PW1. 8. Both these witnesses, namely, PW1 and PW3, are declared hostile by the prosecuting. They were cross-examined by the prosecuting, the previous statements alleged to have been made by PW1 and PW3 were put to them and both these witnesses denied to have made the statements, which were put to them and attributed to them as their statements made to the police. On the basis of the evidence of the Investigating Officer (PW5) that such statements, as indicated hereinbefore, were made by these witnesses, the learned trial court treated the previous statements made by these witnesses to the police as substantive evidence and, accordingly, found the present appellants guilty of the offences charged with. 9. I may pause here to point out that the previous statements, made to a police officer, is never a substantive piece of evidence and no conviction can be based on the basis of such evidence unless the truth of such a statement, independent of the statement, is found to be true or proved to be true. 10. In the case at hand, even if the evidence of PW5 is assumed to be, true that the two witnesses, PW1 and PW3, had made the statements, which were attributed to have been made by them, the fact of the matter remains that there was no guarantee or assurance that what they had stated before the police were true, particularly, when neither PW1 nor PW3 stood by their previous statements made by them to the police and when they, while giving their evidence in the court, did not name any of the accused-appellants as the assailant or associate of the assailant. In such circumstances, no reliance, on the previous statements of these two witnesses, could have been placed by the learned trial court, particularly, when there is not even an iota of evidence given by PW1 and PW3 implicating the present accused-appellants. 11. As far as the remaining witnesses are concerned, they are not relevant for the purpose of the present appeal inasmuch as their evidence, taken as a whole, does not prove the involvement of the present accused-appellants as the assailants of PW1. I may hasten to point out that the fact that the right hand of PW1 was severed, as described above, has not been in dispute. What has been in dispute is the involvement of the accused-appellants, in the said occurrence, as the ones responsible for causing the said injury at the hand of PW1. 12. Because of what have been discussed and pointed out above, it becomes abundantly clear that conviction of the accused-appellants under sections 148 and 326, IPC are not sustainable in the facts and attending circumstances of the present case and the law relevant thereto. 13. In the result and for the reasons discussed above, this appeal succeeds. The conviction of the accused-appellants, coupled with the direction for payment of compensation and the sentences passed against them, are hereby set aside. The accused-appellants are held not guilty of the offences under sections 148 and 326, IPC and they are accordingly acquitted of the same. Their bail bond stands cancelled and their sureties shall stand discharged. 14. Let the LCR be sent back. _____________