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2014 DIGILAW 247 (GAU)

SUSHEN BAIDYA v. STATE OF ASSAM

2014-02-28

P.K.SAIKIA

body2014
JUDGMENT AND ORDER(ORAL) 1. This revision is directed against the judgment dated 29.09.2003, passed by the Sub Divisional Judicial Magistrate, Jonai, Dhemaji, in G.R. Case No. 12/2003, convicting (i) Sri Sushen Baidya, (ii) Sri Nakul Baidya and (iii) Sri Titul Baidya of offence u/s 448/324/34 IPC and sentencing each of them to undergo R.I for 3 months for offence under section 448 of IPC and sentencing each of them to undergo R.I for imprisonment 6 months and also to pay a fine of Rs. 1,000/- each in default RI for another 3 months for offence under section 324/34 of IPC as well as the judgment dated 03.03.2004, passed by the Sessions Judge, Dhemaji in Criminal Appeal No. 25(4)/2003, affirming the judgment of the trial court in the case aforementioned. 2. Being aggrieved by and dissatisfied with the aforesaid judgment, the petitioners, namely, (i) Sri Sushen Baidya, (ii) Sri Nakul Baidya and (iii) Sri Titul Baidya, hereinafter referred to as accused persons approached this court challenging the judgment of the trial court as well as Appellate court on the grounds mentioned in the revision petition. I have heard learned counsel for the petitioners/accused persons as well as the counsel for State respondent. 3. The facts which are necessary for disposal of the present revision, in brief, are that on 13.01.2003, at about 10.30 a.m one Jibon Krishna Das along with his wife was sitting near the fireplace in the courtyard of their house. Around such time, accused/petitioners came to the place where they were enjoying the warmth of fire on that wintry January night, armed with different weapons and started assaulting them. Being so assaulted said Jibon Krishna Das ran to his house to take shelter therein. 4. However, accused persons followed Shri. Das well inside his house and assaulted him with weapons which they were yielding at that point of time. Even his wife did not escape the assault unleashed by accused persons. When they raised hue and cry, accused persons left the place of occurrence. In that connection, an FIR was lodged with O.C Jonai PS on 14.10.2003 by Shri. Jibon Krishna Das. 5. On receipt of the FIR, the O.C Jonai PS registered a case and ordered for investigation. Even his wife did not escape the assault unleashed by accused persons. When they raised hue and cry, accused persons left the place of occurrence. In that connection, an FIR was lodged with O.C Jonai PS on 14.10.2003 by Shri. Jibon Krishna Das. 5. On receipt of the FIR, the O.C Jonai PS registered a case and ordered for investigation. In due course, I.O has visited the place of occurrence, seized the weapon of offence and did other needful and on completion of the investigation, the I.O has submitted the charge sheet under section 448/323/324/34 of IPC against accused persons and forwarded them to the court to stand the trial. 6. When the accused entered appearance before the court, learned Magistrate framed charges under section 448/323/324/34 of IPC against accused persons and charges so framed on being read over and explained to accused petitioners, they pleaded not guilty and claimed to be tried. During trial, the prosecution has examined as many as 6 witnesses including the Medical Officer and the I.O. 7. The statements of accused petitioners were recorded under section 313 Cr.P. They pleaded that they were innocent. On completion of the trial and after hearing the arguments, advanced by the learned counsel for the parties, learned Magistrate convicted accused petitioners of offences u/s 448/324/34 IPC and sentenced them to punishment as aforesaid. 8. Being aggrieved, they preferred an appeal before the learned Sessions Judge, Dhemaji who on hearing the arguments, advanced by the learned counsel for the parties dismissed the appeal on affirming the judgment of the trial court. It is those judgments which are challenged in the present revision proceeding. 9. Opening up the arguments on behalf of the petitioners, Mr. J.Payeng, contends that the judgments of the courts below are unsustainable in law since they were rendered, not on the basis of evidences on record but on surmise and conjecture. In that connection, it has been pointed out that the evidence of PW-1 and PW-2, the star campaigners from the side of the prosecution, are riddled with infirmities of enormous nature and as such, learned courts below should not have believed their evidence. 10. PW 1 and PW 2, they being husband and wife, tried to project a story which does not receive any support from the testimonies, rendered by PW-3, the other witness, who reportedly present when incident in question occurred. 10. PW 1 and PW 2, they being husband and wife, tried to project a story which does not receive any support from the testimonies, rendered by PW-3, the other witness, who reportedly present when incident in question occurred. Such a inconsistent stories do not augur well to advance the claim of prosecution in the case under consideration. 11. It has also been stated that the instrument which the victims, more particularly Sri Jibon Krishna Das, was assaulted with was not produced before the court during the trial. In the facts and circumstances of the present case, the production of such a weapon would have gone a long way in establishing the prosecution case. Since it was not done and that too without assigning any reasons, whatsoever, the prosecution case ought to have been rejected on this count too. 12. According to accused petitioners, they are some material contradictions in the evidence of PWs, more particularly, in the evidence of the principle prosecution witnesses and such contradictions make the prosecution case more and more doubtful. However, all those infirmities were overlooked by courts below. Therefore, learned counsel for accused /petitioners submits this court to acquit the accused/petitioners on setting aside the judgments of the courts below. 13. The learned Additional Public Prosecutor appearing for the State respondent, however, submits that the judgment of the Trial Court is rendered on the basis of the evidence on record and the same was rendered having been regard to the laws which hold the field in question. 14. According to learned Additional Public Prosecutor, the evidence of PW-1 and PW-2 are trust worthy since there is nothing on record to show that they had falsely implicated accused persons with the crime in question. 15. He further submits that the evidence of PW-3, another important witness, supports the claim of PW-1 and PW-2 on fundamental points and therefore learned Trial Court was justified in holding that prosecution has proved the charges against the accused persons beyond all reasonable doubt and as such, there is no wrong on the part of the learned Appellate court in upholding the judgment and dismissed the appeal. 16. I have considered the rival submissions having regard to the evidence on record as well as the judgments under challenge. 16. I have considered the rival submissions having regard to the evidence on record as well as the judgments under challenge. On considering the evidence on record, in proper perspective, I have found that such evidence clearly shows that on the fateful night, Shri. Jibon Krishna Das sustained wounds on his person being caused by the sharp/blunt object. While, he sustained cut wound on his hand, he sustained wound on his head caused by blunt object. 17. Such evidence further reveals that the wife of the PW-1 too sustained wound of simple nature on her person on the night in question. More importantly, the evidence of PW- 1 and PW-2 further shows that accused/petitioners, armed with various weapons, entered into the courtyard of the PW-1, assaulted PW-1 at such place. They even followed him to his house where he was again assaulted by accused persons inflicting wounds on him. 18. More importantly, the evidence of PW-3 runs in tandem to great extent with the evidence tendered by PW-1 and PW-2 and evidence of PW-3, therefore, lends more and more support to the claim of PW-1 and PW-2 that on the night in question, accused persons came to the house of PW-1, assaulted PW-1 and his wife inflicting wounds on them. Therefore, the evidence of PW-1, PW-2 and PW-3 makes out the allegations brought against accused/petitioners. 19. We may note here that PW-4 (Dr. Deuri) and PW-5 (Dr. G.K. Lagachu) are the Medical officer who attended PW-2 and PW-1 in their respective hospital on 15.01.2003 and 14.01.2003 respectively. Those Medical officers found wound of simple nature on the persons of PW-1 and PW-2. There is nothing on record to suspect the evidence rendered by PW-4 and PW-5 which together with the evidence of PW-1, PW-2 and PW-3, put the prosecution case on more and higher pedestal. 20. In this connection, it may be stated that unlike appeal, the scope of revision is very limited and it needs to be invoked sparingly. There is nothing on record to suspect the evidence rendered by PW-4 and PW-5 which together with the evidence of PW-1, PW-2 and PW-3, put the prosecution case on more and higher pedestal. 20. In this connection, it may be stated that unlike appeal, the scope of revision is very limited and it needs to be invoked sparingly. The High Court/ Sessions Court will exercise the revisional power (i) when the decision in question is grossly erroneous, (ii) when the decision is rendered in non-compliance of provisions of law, (iii) when the finding of the fact affected the decision is not based on evidence on record, (iv) when a materials evidence is not considered in basing the decision and (v) when the judicial discretion is exercised arbitrarily of perversely. 21. Now let us see whether such a case is made out in out instant case. To get an answer to the above quarry, I have considered the evidence on record in the light of story recorded in the FIR. Story, so recorded in the FIR, which was lodged on the very next day on which incident in question occurred, is found to be totally in the tune of the stories told and retold by the witnesses before the court during trial. Such story, recorded in FIR, therefore, gives more weight to the prosecution case which stood unfurled during trial. 22. On reading the evidence on record in its entirety, I have found that on the fateful night, accused persons, armed with various weapons, entered the courtyard of the house of PW-1 assaulted PW-1 and his wife, even entered their house, again assaulted them inflicting wounds on them by dangerous weapons and as such, I am of the opinion that accused persons had committed the offences in prosecution of their common intention. 23. Being so, in my opinion, the prosecution has successfully proved the charge u/s 448 IPC as well the offence under section 324 read with section 34 IPC. Situation being such, there is no infirmity, whatsoever, in the judgments rendered by the Trial Court in convicting accused petitioners of offences under section 448 IPC as well as the offence u/ 324 read with 34 of IPC. Therefore, learned Appellate court too committed no wrong in affirming the conviction rendered by trial court. 24. Situation being such, there is no infirmity, whatsoever, in the judgments rendered by the Trial Court in convicting accused petitioners of offences under section 448 IPC as well as the offence u/ 324 read with 34 of IPC. Therefore, learned Appellate court too committed no wrong in affirming the conviction rendered by trial court. 24. One may note here that when the incident in question occurred, the age of accused Shri. Titul Baidya was about 17 years. Around the same time at time, the age accused Shir. Nakal Baidya was 24 years whereas age of accused Shri. Sushen Baidya was about 30 years. It is found that the incident in question occurred in 2003 and accused persons have been facing trial in different courts over a period more than 10 years. 25. Considering all those aspects as well as the facts that no previous connection is alleged against any of accused persons, I am of the opinion that accused petitioners need to be punished little leniently. 26. Accordingly, each of accused petitioners is sentenced to pay a fine of Rs. 2,000/- in default S.I for 1 month for offence u/s 448 IPC and each of the accused is sentenced to pay a fine of Rs. 3000/- in default S.I for 3 months for offence under section 324/34 of IPC. 27. In the event of the realisation fines, an amount of 10,000/- be paid to the Sri Jibon Krishna Das at the ratio of 3:2. 28. In view of above, this proceeding is partly allowed and judgments of the courts below stand modified accordingly.