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2015 DIGILAW 1001 (GAU)

Moina Gogoi @ Bipul Gogoi v. State of Assam

2015-08-11

INDIRA SHAH

body2015
JUDGMENT AND ORDER : Indira Shah, J. This judgment and order dated 27.11.2013 passed by learned Sessions Judge in Sessions Case No. 207/2012 convicting the appellant under Section 307/324/448 IPC and sentencing him thereby to undergo rigorous imprisonment for 10 years with fine of Rs.5000/- in default of payment of find further rigorous imprisonment for 1 years for his conviction under Section 307 IPC, and to suffer rigorous imprisonment for 2 years and find of Rs.1000/- in default of rigorous imprisonment for 3 months for the offence under Section 324 IPC and further rigorous imprisonment for 3 months with fine of Rs.500/- in default of payment of fine, rigorous imprisonment for 1 month for conviction under Section 448 IPC, is under challenge. 2. In the evening of 05.09.2012, Manager Arun Sarmah, Assistant Manager and Pronob Chutia of Hatigarh Matikhola Tea Estate were enjoying T.V. programme in the house of Saidur Rahman, compounder of the Tea Estate. At around 8.15 P.M. the appellant along with Loknath Gogoi, Phanidar Gogoi and Babu Gogoi armed with sharp weapons entered iinto the house compound of Saidur Rahman started uttering abusive words. The appellant Maina Gogoi @ Bipul went inside the house called Saidur's son Ashiquor Rahman, when Arju Rahman, wife of Sahidur Came out of kitchen, the accused gave dao blow on her neck which however landed on her shoulder. The accused thereafter inflicted cut injury on the back of her daughter Sajmin Rahman with the same chopper. The garden Manager somehow managed to drove accused out from the house. Arjun Rahman and Sajmin were shifted to Civil Hospital at Golaghat. Md. Saidur Rahman lodged the FIR on 06.09.2012 and on the basis of FIR Ghilahari P.S. Case No. 53/2012 under Section 448/326/307/506/34 IPC was registered. During the investigation police seized the blood stained cloth of Arjun and Sajmin. The chopper was seized from the house of the accused Loknath Gogoi. On the completion of investigation Charge-sheet against the accused Maina Gogoi @ Bipul, Loknath Gogoi, Phanidhar Gogoi and Babu Gogoi under Section 448/324/307/506/34 IPC laid. 3. The offence Under Section 307 IPC being exclusively triable by the court of Sessions, it was committed for trial to the Court of Sessions. 4. Charge under Section 448/324/307/506/34 IPC were framed against all four accused persons to which they pleaded not guilty and claimed to be tried. 5. Altogether 10 witnesses were examined by the prosecution. 3. The offence Under Section 307 IPC being exclusively triable by the court of Sessions, it was committed for trial to the Court of Sessions. 4. Charge under Section 448/324/307/506/34 IPC were framed against all four accused persons to which they pleaded not guilty and claimed to be tried. 5. Altogether 10 witnesses were examined by the prosecution. Thereafter, statement of accused persons under Section 313 Cr. P. C was recorded wherein they denied all the allegations levelled against them. They however, declined to adduce any defence evidence. 6. Learned trial Court on conclusion of trial, while acquitted the accused Loknath Gogoi, Phanidhar Gogoi and Babu Gogoi held the accused Maina Gogoi guilty and convicted him under Section 307/324 and 448 IPC. He was then sentenced as stated earlier. 7. Mr. P.J. Saikia, learned counsel appearing on behalf of the appellant has submitted that the victims in this case sustained simple injury and that too one on her shoulder and another on back. There was no material before the Court to convict the accused under Section 307 IPC or under any panel law. 8. The trial Court ought not to have believed the witnesses whose evidence was contradictory on material points. 9. It is further urged by the learned counsel that the weapon of assault i.e. chopper was seized from the house of Loknath Gogoi, who has been acquitted. There is nothing to show that the seized chopper was the weapon of assault. Neither the seized chopper nor the blood stained clothes were sent to FSL for serological examination. 10. Learned counsel has further urged that the prosecution could not establish where actually the occurrence took place, whether it was inside the house or the house compound of Sohidur. The sketch map drawn by the Investigating Officer shows that the place of occurrence was house compound which is contradictory to the evidence of other witnesses. 11. Moreover, the provision of Section 360 Cr. P. C or the provision of Probation of Offenders Act was not considered by the trial Court while imposing sentence. 12. PW-1, Arun Sarmah, garden Manager, PW-9 Pranab Chutia, Assistant Garden Manager claimed to enjoying T.V along with PW-4 Saidur Rahman at the time of occurrence. There is denial of the fact, that PW-6 Arjun Rahman and her daughter PW-7, Sajmin Rahman sustained injuries caused to them by the accused Maina Gogoi. 13. 12. PW-1, Arun Sarmah, garden Manager, PW-9 Pranab Chutia, Assistant Garden Manager claimed to enjoying T.V along with PW-4 Saidur Rahman at the time of occurrence. There is denial of the fact, that PW-6 Arjun Rahman and her daughter PW-7, Sajmin Rahman sustained injuries caused to them by the accused Maina Gogoi. 13. PW-1, 4, 6, 7 and 9 all have stated that the accused along with others came to the house compound of Saidur Rahman. It was he (Moina Gogoi) who only entered into the house leaving others in the house compound. 14. PW-6, Arju Rahman and PW-7, Sajmin Rahman categorically stated that the accused Maina assaulted them by means of a chopper, he was holding. PW-6 stated that the accused aimed to inflict the injury on her neck but as she raised her hand, it landed on her shoulder. The evidence of PW-6 and 7 remained unshaken. 15. The Investigating Officer in the sketch map drawn by him has shown the place of occurrence the house compound of Saidur. The episode started from the house compound and it continued inside the house. When there is specific unshaken evidence of eye witnesses, only because of non-mentioning of the place of occurrence inside the house also is not a material contradiction. 16. PW-2, Dr. Manjit Singh examined the victims on 05.09.2012 at around 9.10 PM. He found Arjun Rahman sustained cut injury over interior aspect of left shoulder of 7cm x 2 cm x 2 cm size. The injury was recent and simple and caused by sharp weapon. Sajmin Rahman sustained cut injury over the back of the chest wall right side of 3 cm x 2 cm size. The injury was simple fresh and caused by sharp weapon. 17. The findings of the doctor and the injuries sustained by the victims were not disputed during the cross-examination of doctor. 18. The presence of accused Maina inside the house has been established by PW-1, 4, 5, 6 and 7. Interestingly enough his presence at the place of occurrence was not denied during by cross-examination of witnesses. 19. The chopper was seized from the house of accused Loknath Gogoi. The chopper was not sent to Forensic Science Laboratory. Since it was not seized from the possession of the accused/appellant, prosecution has not established that the seized chopper was the weapon of assault. 19. The chopper was seized from the house of accused Loknath Gogoi. The chopper was not sent to Forensic Science Laboratory. Since it was not seized from the possession of the accused/appellant, prosecution has not established that the seized chopper was the weapon of assault. But the fact remains that the victim sustained injuries on the date and time of occurrence caused to them by means of a sharp weapon. On careful analysis of evidence of witnesses, more particularly, injured witnesses no discrepancy of any vital nature is found which will affect the credibility of the witnesses. There are minor discrepancies that do not any way dilute the otherwise cogent evidence of injured witnesses about the role played by the accused/appellant. 20. It has been urged that to the prosecution could not establish that there was any intention to commit murder and in any event the medical evidence says that the victims sustained only simple injury and that too on shoulder and back, it cannot be assumed that the accused attempted to commit murder. 21. PW-6 clearly and in no uncertain terms stated that accused aimed the blow on her neck, she raised hand and the chopper landed on her shoulder. 22. The presence of intent can be gathered with some overt act of the accused. To justify conviction under Section 307 IPC it is not essential that bodily injury capable of causing death should have been inflicted. 23. In the case of Sarju Prasad v. State of Bihar AIR 1965 SC 843 it was observed that the mere fact that the injury actually inflicted by the accused did not cut any vital organ of the victim is not sufficient to take the act out of purview of Section 307 IPC. 24. The same principle was reiterated in case of State of Maharashtra v. Balram Patil, (1983) 2 SCC 28 , Girija Shankar v. State of U.P., (2004) 3 SCC 793 , Vasant Vithu Jadhav v. State of Maharashtra, (2004) 9 SCC 31 and Lachman Singh v. State of Haryana, (2006) 10 SCC 524 . 25. It is also urged that the accused/appellant may be allowed benefit of Section 4 of Probation of offenders Act and this Court may not uphold the sentence of 10 years of imprisonment imposed by the trial Court. 26. 25. It is also urged that the accused/appellant may be allowed benefit of Section 4 of Probation of offenders Act and this Court may not uphold the sentence of 10 years of imprisonment imposed by the trial Court. 26. The manner in which the offence was committed does not persuade to any view other than the view taken by the trial Court. The accused in presence of garden officials entered into the house and to inflict injury on helpless unarmed women. It is not a fit case to allow him the benefit of Section of Probation of Offenders Act or Section 360 Cr.P.C. 27. For the reasons recorded, this appeal is dismissed. Send back LCR along with a copy of this judgment.