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2012 DIGILAW 549 (GAU)

Azmal Hussain v. State of Assam

2012-05-03

I.A.ANSARI

body2012
JUDGMENT I.A. Ansari, J. 1. This revision is directed against the judgment and order, dated 31.08.2004, passed by the learned Sessions Judge, Cachar, Silchar, in Crl. Appeal No. 13(1)/2004, upholding the conviction of the accused-petitioner, under Sections 457 and 324 of the IPC, passed, under the judgment and order, dated 19.02.2004, of the learned Additional Chief Judicial Magistrate, Cachar, Silchar, in G.R. Case No. 1549/1999. However, the learned Appellate Court modified the sentence passed against the accused-petitioner, for his conviction under Section 457 IPC, by directing him to undergo rigorous imprisonment for 6 months and pay fine of Rs.5,000/- and, in default, to undergo rigorous imprisonment for 15 days; whereas, the learned trial Court had sentenced the accused-petitioner, for his conviction under Section 457 IPC, to undergo rigorous imprisonment for 2 years and to pay fine of Rs.1,000/- and, in default, to undergo rigorous imprisonment for 3 months. Similarly, the learned Appellate Court reduced the sentence passed by the learned trial Court, against the accused-appellant, for his conviction under Section 324 IPC, inasmuch as the learned Appellate Court sentenced the accused-appellant, for his conviction under Section 324 IPC, to undergo rigorous imprisonment for 3 months; whereas the learned trial Court had sentenced him, for his conviction under Section 324 IPC, to undergo rigorous imprisonment for 6 months. However, both the sentences were directed by the learned appellate Court as well as the learned trial Court to run concurrently making it clear that in the event of realization of fine, the amount, realized as fine, shall be paid to the victim as compensation. With the modification, so made, as described hereinbefore, in the sentences passed against the accused-petitioner, as the appeal has been dismissed, the accused-petitioner is, now, before this Court with this revision. I have heard Mr. A.S. Choudhury, learned counsel for the accused-petitioner, and Mr. D. Das, learned Additional Public Prosecutor, Assam. 2. The case of the prosecution may, in brief, be described thus: On 27.05.1999, at about 3-00 a.m., when PW2 was lying asleep in his room, the accused entered into the house by cutting the rope, with which the door of the house was tied closed, and gave a blow, by means of a dagger, on the abdomen of PW2 just above the navel. On receiving the blow, PW2 cried out in pain and tried to catch hold of the accused, but the accused ran away. On receiving the blow, PW2 cried out in pain and tried to catch hold of the accused, but the accused ran away. However, when the accused was running away, he was recognized by the inmates of the house. An Ejahar was lodged by PW1 (i.e., father of PW2) with regard the occurrence, on 28.05.1999, at Katigorah Police Station. Based on this Ejahar and treating the same as First Information Report (in short, 'FIR'), Katigorah Police Station Case No. 139/1999, under Section 457 read with Section 324 IPC was registered. The injured was medically treated and, on completion of investigation, a charge-sheet was laid against the accused under Section 457 read with Section 324 IPC. 3. During trial, when charges under Section 457 and 324 IPC were framed against the accused-petitioner, the accused-petitioner pleaded not guilty thereto. 4. In support of their case, prosecution examined altogether 6 (six) witnesses. The accused was, then, examined under Section 313 CrPC and, in the examination aforementioned, he denied that he had committed the offences, which were alleged to have been committed by him, the case of the defence being that of total denial. No evidence was, however, adduced by the defence. 5. At the end of the trial, the learned trial Court, having found the accused guilty of the offences charged with, convicted him accordingly and passed sentences against him as mentioned above. Aggrieved by his conviction and the sentences passed against him, the accused preferred an appeal, which has been dismissed by the learned appellate Court by modifying the sentences as mentioned above. 6. While considering the present revision, it needs to be noted that PW2 (Bilal) is the injured and his evidence is that on the night of the occurrence, while he was asleep, the accused entered into his house by cutting the rope, with which the door of the room was tied closed, and gave a blow with a dagger on his abdomen, just above his navel, and he (PW2), on receiving the blow, cried out in pain and, on hearing his cries, the inmates of the house woke up and, at that time, the accused gave another blow on him, but he escaped the blow. In the meanwhile, the inmates of the house rushed to the room, where PW2 was being stabbed, and the accused fled away. 7. In the meanwhile, the inmates of the house rushed to the room, where PW2 was being stabbed, and the accused fled away. 7. In his cross-examination, PW2 has clarified that the night of the occurrence was a moonlit night. Except giving some suggestions to PW2, the defence left him virtually without any cross-examination. The evidence of PW2, therefore, remained completely unshaken. 8. Close on the heels of the evidence of PW2, the evidence of his father (PW1), the informant in this case, is that on the night of the occurrence, at about 3-00/4-00 a.m., on hearing the cries of his son, Bilal (PW2), he (PW1) woke up and, when he was proceeding towards the room of his son, Bilal (PW2), he saw the accused running away and, though there was a scuffle between him and the accused, the accused managed to run away. It is also in the evidence of PW1 that, on hearing her husband's cries, Bilal's wife switched on the light and the accused could be seen. It is also in the evidence of PW1 that he, accompanied by his sons, others than PW2, chased the accused so as to apprehend him, but the accused managed to escape. This apart, according to PW1, even the people, who were fishing nearby, tried to catch hold of the accused, but the accused managed to escape. It is the further evidence of PW1 that there was a dispute between the accused and his son (PW2) with regard to payment of some dues of the accused. PW1 has also deposed that the accused entered into the room of PW2 by cutting the rope, whereby the door of the room was tied closed, and that in the room of his injured son, Bilal, Bilal's wife was also sleeping. 9. Though the defence cross-examined PW1, nothing substantive was elicited from his cross-examination to show that the evidence, given by PW1, as regards the fact, that the accused was seen running away, is untrue or false. Thus, the evidence of PW1 also remained completely intact. No material contradiction between the evidence, given by PW1 and his previous statement could be pointed out by the defence. 10. Thus, the evidence of PW1 also remained completely intact. No material contradiction between the evidence, given by PW1 and his previous statement could be pointed out by the defence. 10. Broadly in tune with the evidence of PW1 and PW2, PW3, who is brother of PW2, has deposed that on the night of the occurrence, at about 3-00 a.m., he woke up on hearing the cries of his brother (PW2) and when he was rushing towards the room of PW2, he (PW3) saw the accused running away through the door of the said room and, though he tried to catch hold of the accused, the accused overpowered him and managed to escape. PW3 has also deposed that on coming back to his brother's (PW2's) room, he saw his brother having sustained injury on his abdomen and his injuries, bleeding and, on being asked, PW2 told him that it was Md. Azmal Hussain (i.e., the accused), who had hurt him. PW3 has further deposed that his father and other inmates of the house took the injured to the police station and, later on, the injured was treated at Silchar Medical College Hospital. Even in respect of PW3 there was no effective cross-examination to show that his evidence was, in any way, unbelievable or unreliable. I, therefore, see no reason to discard or disbelieve the evidence of PW3. 11. As far as PW4 is concerned, he is a neighbour and, admittedly, not an interested witness, his evidence being that on the night of the occurrence, at about 3-00 a.m., he woke up on hearing hue and cry raised from the house of PW1, came to the house of PW1 and found PW2 lying on the verandah of the house and, on being asked, PW2 told him that Azmal Hussain had hurt him. The evidence of PW4, which has also remained unshaken, shows that PW2 was indeed found injured in his house on the night of the occurrence. 12. So far as the doctor (PW5) is concerned, his evidence is that on 28.05.1999, at about 10-00 a.m., PW2 was examined in his hospital and was found to have sustained incised wound on the upper part of the embilical region on the interior abdomen, which was fresh and caused by sharp weapon, the size of the wound being 2cm x 1cm x 1cm. 13. 13. Thus, the medical evidence on record completely corroborates the evidence of the injured and the inmates of his house inasmuch as the medical evidence clearly shows that PW2 had sustained, on his abdomen near his navel, incised wound, which could have been caused by a sharp weapon, such as, dagger. 14. What emerges from the above discussion is that the evidence on record prove, beyond reasonable doubt, that the accused did enter into the room of PW2 by cutting the rope, with which the door of the room was tied closed from inside, and he, on coming inside the room, did give a blow with the dagger on the abdomen of PW2, while the later was asleep in his room, causing incised wound and, on the cries raised by PW2, the accused tried to give further blow on the accused, but did not succeed and though PW2 tried to catch hold of the accused, the accused managed to escape. It is also in the evidence on record that the night of the occurrence was a moonlit night and that on hearing the cries of PW2, his wife switched on the light and when PW2's father entered into the room of PW2, he saw the accused, but the accused managed to escape. 15. In the circumstances, mentioned above, the findings of guilt, reached against the accused, under Sections 457 and 324 IPC, cannot be said to be without any evidence or against the evidence on record or contrary to law. The accused-petitioner was, thus, justifiably and legally convicted of the offences under Sections 457 and 324 IPC and were rightly upheld by the learned appellate Court and the modifications of the sentences, as done by the learned appellate Court, as indicated above, do not, in the firm view of this Court, warrant, in the facts and circumstances of the case at hand, any further reduction or interference. The appeal was, thus, rightly dismissed with the modifications in the sentences passed by the learned trial Court. 16. This Court does not find any infirmity, legal or factual, either in the conviction of the accused-petitioner or in the sentences passed against him by the learned appellate Court. 17. This revision, therefore, fails and the same shall accordingly stand dismissed. Send back the LCR.