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2012 DIGILAW 977 (GAU)

Jyoti Pran Kumar v. State of Assam

2012-08-14

P.K.MUSAHARY

body2012
JUDGMENT P.K. Musahary, J. 1. The prosecution case leading to filing of this petition is that a complaint was filed by Smti Gitanjali Mahanta alleging that her husband, the present petitioner, after their marriage solemnised on 4.2.2003, started demanding dowry subjecting her to mental and physical torture. On 25.6.2007, the petitioner being instigated by his sister (co-accused), confining her inside the room, assaulted causing injury on her head and other parts of her body. The police registered the Jalukbari P.S. Case No. 304/07 under Sections 498A/ 323/ 307 IPC and after completion of investigation submitted charge-sheet under Section 498A/ 323/ 34 IPC and the learned trial court framed charge under the aforesaid sections of law against the petitioner and his sister Smti Purnima Kumari. The accused persons denied the charge and faced the trial. The prosecution examined 8 witnesses including the I.O. and the M.O. The defence examined no witness and the learned trial court on the basis of evidence on record held that the prosecution has failed to prove the charge under Section 498A IPC against the accused persons and acquitted them of the charge under Section 498A IPC. However, the learned trial court on the basis of evidence, particularly the evidence of the medical officer found the present petitioner (husband of the complainant) guilty under Section 323 IPC and sentenced him to suffer simple imprisonment for three months. The learned trial court came to conclusion that there is no evidence establishing the act of incitement by the accused Smti Purnima Kumari in committing the offence by the petitioner under Section 498A IPC and held that she cannot be fastened with offence with the aid of Section 34 IPC. The co-accused Smti Purnima Kumari was acquitted of all the charges. The order of conviction and sentence against the petitioner was handed down by the learned Judicial Magistrate, 1st Class, Karnrup, Guwahati vide judgment dated 18.10.2010 rendered in G.R. Case No. 4087/07. 2. The petitioner on being dis-satisfied and aggrieved by the order of conviction and sentence filed an appeal before the learned court of Sessions Kamrup, Guwahati which was registered as criminal appeal No. 86 of 2010. 2. The petitioner on being dis-satisfied and aggrieved by the order of conviction and sentence filed an appeal before the learned court of Sessions Kamrup, Guwahati which was registered as criminal appeal No. 86 of 2010. The appellate court below upon hearing the learned counsel for the parties and on consideration of evidence on record delivered the impugned judgment dated 25.2.2011 affirming the conviction of the petitioner under Section 323 IPC with modification in the sentence of imprisonment to undergo simple imprisonment for three months to pay only a fine of Rs. 1000/-, in default, simple imprisonment for two months. 3. The petitioner, being further dissatisfied with and aggrieved by the appellate Court's judgment preferred the present petition for quashing and setting aside the judgment of the trial court as well as the appellate court so far as they relate to conviction and sentence imposed on him under Section 323 IPC. 4. I have heard Mr. BK Mahajan, learned counsel for the petitioner and Mr. D Das, learned Addl. Public prosecutor, Assam for the respondent Mr. Mahajan, learned counsel submits that so far as allegation of assault on the complainant is concerned there is no eye witness inasmuch as the alleged assault was committed inside the room and the learned trial court committed error in law in coming to a conclusion that the petitioner committed the assault on his wife, solely on the basis of opinion of the medical officer who, after medically examining her found tenderness on the front of her neck and mild swelling over the occipital parietal region of the scalp. The learned Courts below did not take into consideration the doctor's opinion that the injury sustained by the Injured is simple in nature and caused by blunt weapon. The learned courts below also did not take into consideration that the medical officer P.W. 7 did not record in her report the age of the injuries found on the persons of the complainant and also the opinion that such injury could be caused due to fall or dashing against a hard substance. The doctor's evidence as argued by the learned counsel for the petitioner, having not been corroborated by evidence of an independent witness, cannot be a basis for convicting the petitioner under Section 323 IPC and as such the impugned judgment of the courts below are liable to be quashed and set aside acquitting the petitioner. The doctor's evidence as argued by the learned counsel for the petitioner, having not been corroborated by evidence of an independent witness, cannot be a basis for convicting the petitioner under Section 323 IPC and as such the impugned judgment of the courts below are liable to be quashed and set aside acquitting the petitioner. 5. The learned counsel for the petitioner also submitted that if an order of acquittal cannot be passed by this court the petitioner may be released on probation under Section 4 of the Probation of Offenders Act, 1958 which would meet the ends of justice in the facts and circumstance of the case. 6. Mr. Das, learned Addl. Public Prosecutor, Assam firmly asserted that the order of conviction under Section 323 IPC has been awarded by the learned trial court and the appellate court on having found the charge well founded and established on the basis of evidence of the medical officer. The absence of evidence of eye witness to corroborate the evidence of the medical officer cannot be a ground of interference with the findings and conclusion of the learned courts below. The defence cannot ask for corroborating evidence of eye witness inasmuch as the physical assault took place inside the room. The quarrel and physical assault, according to him, normally take place inside the room/house and it may not be seen by the third party. No evidence has; been led by the defence that the complainant received injury on her person due to fall on title ground or against a hard substance or she received the said injury due to some other reasons and under such circumstances the opinion of the medical officer cannot be discarded. The conviction, as argued by the learned Addl. P.P., was rightly recorded by the appellate court and approved by the appellant court. The appellate court modified the sentence of imprisonment to payment of fine only which is most reasonable and meets the ends of justice. 7. I have anxiously considered the submissions of the learned counsel for the parties. The order of acquittal of the petitioner under Section 498A IPC is found to be well reasoned and I do not find any reason for interference with the same. This court is called upon to consider whether the conviction of the petitioner under Section 323 IPC is sustainable. The order of acquittal of the petitioner under Section 498A IPC is found to be well reasoned and I do not find any reason for interference with the same. This court is called upon to consider whether the conviction of the petitioner under Section 323 IPC is sustainable. The evidence on record has established that the incident of alleged assault took place inside the room and there was no eye witness to the said incident. The prosecution could not adduce any eye witness and it has to rely on the circumstantial evidence. There is only one circumstantial evidence that is the mark of injuries on the person of the complainant, which according to the medical evidence are simple in nature. The informant in her evidence categorically deposed that her husband/petitioner inflicted the injury by assaulting her inside the room and unless it is proved that the complainant received the injuries due to some other reason by adducing sufficient and cogent evidence, it cannot be disbelieved and discarded. Omission of the medical officer in recording the age of the injury cannot be used as an evidence to prove that the injury in question was not inflicted by the petitioner. It is to be noted that the alleged incident of assault took place on 25.6.07 and the FIR was on 28.6.07. On the same day the medical officer examined the complainant at N.F. Railway Hospital, Maligaon Two days delay in filing the FIR is easily understandable because an Indian woman has to think over the matter seriously before filing a complaint against her husband as it may bring more serious discord and misunderstanding. There is no denial that the petitioner was not present at home on the date of occurrence. The aforesaid substantial evidence supported by the medical evidence on injury of the complainant sufficiently proves the charge under section 323 IPC against the present petitioner. The conviction as awarded by the learned courts below is not liable to be interfered with and the same stands upheld. 8. As regards the differing sentences awarded by the learned courts below I find that the sentence imposed by the learned Sessions Judge is more reasonable and acceptable. But in my considered view the sentence awarded by the learned appellate court could further be modified in the facts and circumstances of the case. 9. 8. As regards the differing sentences awarded by the learned courts below I find that the sentence imposed by the learned Sessions Judge is more reasonable and acceptable. But in my considered view the sentence awarded by the learned appellate court could further be modified in the facts and circumstances of the case. 9. The learned Sessions Judge, in his appellate judgment prominently made an observation that: the accused had suffered a lot coming and going to the court since 2007 and the reunion of the spouse cannot be ruled out. The chance of reunion of the spouse cannot be ignored by the court of law and it must be given prime importance to settle the misunderstanding/differences between the husband and the wife. It would cause more harm and injustice to both the parties if the court of law stands on the way of amicable settlement between the husband and wife. On sending the husband to jail or by making him pay fine, in my considered view, no useful purpose would be served. Both the courts below found no criminal record against the present petitioner and he comes under the category of first offender and as such he could be released on probation under provision of Section 4 of the Probation of Offenders Act, 1958. The modern criminal jurisprudence recognises that no man is born criminal and that a good many crimes are product of socio economic milieu. It is the trend of the modern law in the field of penology that efforts should be made to bring out correction and reformation of individual offender without resorting to retributive justice. In Mohd Manir Atom Vs. State of Bihar, reported in (2010) 12 SCC 26 the accused was convicted under Section 304 Pt-II and 323 IPC. During pendency of the criminal proceeding the accused in the said case secured doctorate and employed as Senior Professor in a University although he was convicted under more serious offence than the one in the present case, the Apex Court directed release of the convicted person under Section 4 of the Probation of Offenders Act, 1958 on terms to be settled by the court because the Apex Court found the conduct and attainments after his involvement in the criminal case, justified to release him on probation. In another case namely Rajbir Vs. In another case namely Rajbir Vs. State of Haryana, reported in AIR 1958 SC 1278 the convict was directed to be released on probation under section 4 of the Probation of Offenders Act, 1958 taking into consideration that parties to assault are close relatives and the convict was a Govt. servant with direction to the effect that the conviction would not affect accused's service. 10. It is stated at the bar that the accused petitioner in the present case is also an employee of N.F. Railway without any criminal antecedent. It is also stated at the bar that chances of reunion with his wife would be brighter if the petitioner is released on probation under the existing law. Having considered the entire facts and circumstances of the case, particularly the established fact that the petitioner is a first offender and he has committed no serious offence, I am inclined to provide him the benefit of release on probation under Section 4 of the Probation of Offenders Act, 1958 and under the terms and conditions to be settled by the learned CJM, Kamrup, Guwahati as trial court. It is provided that the conviction shall not affect the petitioner's service. The conviction under Section 323 IPC against the petitioner stands maintained directing him to appear before the learned trial court, CJM, Kamrup, Guwahati within two weeks from today and he shall be released on probation on terms and condition as may be deemed fit and proper. The petition stands partly allowed with modification in the sentence as indicated above. Bail bond stands discharged. Send down the LCRs.