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2012 DIGILAW 627 (GAU)

Amir Ali v. State of Assam

2012-05-28

I.A.ANSARI

body2012
1. With the help of this revision, the convicted person has put to challenge the judgment and order, dated 5.5.2004, passed by the learned Sessions Judge, Kokrajhar, in Criminal Appeal No. 11(4)72003, dismissing the appeal and affirming the judgment and order, dated 25.9.2003, passed by the learned Additional Chief Judicial Magistrate, Kokrajhar, in GR Case No. 699 of 2002, whereby the learned trial court convicted the accused-petitioner under section 324, IPC and sentenced him to suffer rigorous imprisonment for one year and also pay a fine of Rs. 300 and, in default; of payment of fine, suffer simple imprisonment for one month. 2. I have heard Mr. A. Sharif, learned counsel for the accused-petitioner, and Mr. D. Das, learned Additional Public Prosecutor, Assam. 3. The case of the prosecution, as unfolded at the trial, may, in brief, be described, thus: On 16.11.2002, when Takka Sheikh (PW2) was standing in front of the vegetable shop of PW3 (Md. Jamal Uddin Shaikh), at Fakiragram market; the accused came there and started giving fist blows on PW2 and when PW2 retaliated by giving fist blows on the accused, the accused, who had a knife with him, gave blows near the eyes of PW2 and also near the neck of PW2. As PW2 cried out of pain and hullah was also raised at the place of occurrence, the accused ran away. A First Information Report ('FIR'), with regard to the occurrence, was lodged by PW1 (Asoruddiri Sheikh), father of the injured (PW2) and, based on the said FIR, a case was registered by the police under section 341/324/326, IPC. On competition of investigation, police laid charge sheet against the accused-petitioner under section 341/324/326, IPC. 4. At the trial, however, the accused-petitioner pleaded not guilty to the charges framed against him under section 341/324/326, IPC. 5. In support of their case, prosecution examined 7 witnesses. On closing of the evidence of the prosecution, the accused was examined under section 313, Cr.PC and, in his examination aforementioned, the accused denied that he had 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, however, adduced by the defence. 6. Having held the accused guilty of the offence under section 324, IPC, the learned trial court convicted him accordingly and passed sentences against him as mentioned above. 7. No evidence was, however, adduced by the defence. 6. Having held the accused guilty of the offence under section 324, IPC, the learned trial court convicted him accordingly and passed sentences against him as mentioned above. 7. Though it has been pointed out by the learned counsel for the accused-petitioner, at the time of hearing of this revision, that the injured and the witnesses are relatives, this, by itself, is not a sufficient ground for rejecting the evidence of the injured and the other witnesses, particularly, when the defence failed to bring out any such material, which could show that the accused-petitioner had been falsely implicated and/or that he was not the one, who had caused injuries on the person of PW2, when PW2 has, in the light of the ocular as well as medical evidence on record, admittedly, sustained injuries. 8. While considering the present revision, it needs to be noted that PW1 is, admittedly, not an eye witness to the alleged occurrence of assault on his son, Takka Sheikh, by the present petitioner, namely, Md. Amir Ali. 9. Necessarily, therefore, the evidence of Takka Sk, who was examined as PW2, is of great relevance and this witness, I find, has deposed that he had an altercation with the accused and after the same, the accused came near him with a knife and stabbed him on his eyes, below the cheek and when he was trying to run away, the accused gave a blow on his shoulder. Though cross-examined at some length by the defence, nothing material could be elicited by the defence by cross-examining PW2 to show that his evidence cannot be believed. The evidence of PW2 has remained unshaken and his evidence clearly demonstrates, as already indicated above, and sufficient to hold that in the evening on the day of the occurrence, while he (PW2) was standing in front of the vegetable shop of one Md. Maharuddin Sheikh (PW5), accused came there with a knife and gave on PW2 blows with the said knife near both the eyes of PW2 resulting into injuries on his right eye and also below his cheek. 10. Maharuddin Sheikh (PW5), accused came there with a knife and gave on PW2 blows with the said knife near both the eyes of PW2 resulting into injuries on his right eye and also below his cheek. 10. Coupled with the fact that the evidence of the PW2 remained unshaken, his evidence received corroboration from the medical evidence on record inasmuch as the doctor (PW8), who examined PW2 on 16.11.2002, at Fakiragram SHC at 6 p.m., found as follows : "(i) An oblique incised wound with clean margin with profuse bleeding over the upper part of the neck of left site extending up to ear lobule of size 60cm x 2cm x lent of fresh blend. (ii) An oblique incised wound over the beck of the left shoulder with profuse bleeding size 8cm x 3cm x 1cm of fresh blend. (iii) An oblique incised wound with clean margin with profuse bleeding over the lower part of the right eye of size 2cm x 5cm x.5cm of fresh blend." 11. It is also in the evidence of the doctor (PW8) that in his opinion, all the injuries were caused by sharp cutting weapon. Despite cross-examining the doctor (PW8), nothing could be brought out by the defence to show, that his evidence cannot be believed or relied upon. 12. Thus, as already mentioned above, the medical evidence on record clearly shows that PW2 had sustained an oblique incised wound with clean margin with profuse bleeding over the upper part of the neck of left side extending up to ear lobe of size 6cm x 2cm x 1cm of fresh blend, another oblique incised wound over the beck of the left shoulder with prof used bleeding size 8cm x 3cm x 1cm of fresh blend and yet another oblique incised wound with clean margin with profuse bleeding over the lower part of the right eye of size 2cm x.5cm x.5cm of fresh blend. 13. Coupled with the above, PW3 has deposed that on the day of the occurrence, while PW2 was engaged in a quarrel with the accused, the accused who had a knife in his hand, started to give blow with his knife on PW2 and PW2, having received injuries on both the eyes and neck, cried out. in pain and, on hearing the hullah raised at the place of occurrence, the accused fled away. 14. in pain and, on hearing the hullah raised at the place of occurrence, the accused fled away. 14. Close on the heels of the evidence of PW3, PW4 has deposed that while he was proceeding towards police station for joining his duty, he saw gathering in front of a shop, he also saw accused Amir Ali running away through the paddy field and, on arriving at the place of occurrence, he saw PW2 in injured condition lying on the road, whereupon he shifted the injured to the hospital with the help of police. PW4 has also clarified that he had found injuries on the eyes and on the beck of PW2. 15. Though PW4 has admitted that it was a dark night, the fact remains that darkness of the night does not rule out, in absence of anything showing to the contrary, the possibility of PW4 having witnessed the accused running away. 16. PW5 is one Md. Moharuddin Sheikh, who is the owner of the vegetable shop, in front of whose shop, the occurrence, admittedly, took place. The evidence of PW5 is, therefore, of great importance and his evidence is that when PW2 was standing in front of his vegetable shop, the accused come there, started giving fist blows on PW2 and when PW2 reacted by giving blows on the face of the accused, the accused, suddenly, gave blows with a knife and as hullah was raised at the place of occurrence, the accused fled away. PW5 has also deposed that PW4 came to the place of occurrence immediately after the accused had fled away and, somehow, he managed to send PW2 to the hospital. PW5 has also corroborated the injuries having been sustained by of PW2 on his person. 17. In tune with the evidence of PW4, PW6 also deposed that he had seen the accused running away with a knife in his hand and, though he chased the accused, the accused ran away. 18. Thus, the prosecution has adduced sufficient evidence on record to show that the accused had given blows with a knife, which is a sharp-cutting weapon, on PW2 and injured PW2, who remained in the hospital for three days. 19. In the circumstances as indicated above, the learned trial court was wholly justified in convicting the accused-petitioner under section 324, IPC. The learned appellate court also, I find, has gone through the evidence on record. 19. In the circumstances as indicated above, the learned trial court was wholly justified in convicting the accused-petitioner under section 324, IPC. The learned appellate court also, I find, has gone through the evidence on record. 20. In the circumstances as indicated above, the learned appellate court was wholly justified in upholding the conviction of the accused and in affirming the same. 21. This court does not find any infirmity in the finding of guilt, reached by the trial courts, against the accused-petitioner and his conviction under section 324, IPC. Consequently, this court, too, does not find any illegality in the dismissal of the appeal as against conviction of the accused-petitioner by the learned appellate court. 22. Turning to the sentence passed against the accused-petitioner, it needs to be noted, as already indicated above, that the accused has been sentenced to suffer rigorous imprisonment for one year and also to pay a fine of Rs. 300 and, in default of payment of fine, suffer simple imprisonment for one month. 23. It has been pointed out, on behalf of the accused-petitioner, that in the facts and circumstances of the present case, the accused-petitioner ought to have been given the benefit of the Probation of Offenders Act, 1958. 24. True it is that neither the learned trial court nor the learned appellate Court has considered the question as to whether the accused can be given the benefit of Probation of Offenders Act, 1958. This court finds that in the facts and attending circumstances of the present case, the accused-petitioner was not, in the light of the weapon, which he has used and the location of the injury, which he has caused, entitled to be given the benefit of Probation of Offenders Act, 1958. 25. In the facts and attending circumstances of the present case, the sentence, passed against the accused-petitioner, does not, in the considered view of this court, calls for any interference. 26. Situated thus, this court does not find any merit in this revision. The revision, therefore, fails and shall accordingly stand dismissed. 27. The accused-petitioner is hereby directed to surrender, forthwith, in the learned trial court so as to serve out the sentence of imprisonment passed against him. 26. The bail bond of the accused-petitioner shall stand cancelled and his sureties shall stand discharged. 27. Send back the LCR. _____________