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2015 DIGILAW 1022 (GAU)

Azmal Haque v. State of Assam

2015-08-13

PARAN KUMAR PHUKAN

body2015
JUDGMENT : Paran Kumar Phukan, J. This revision is directed against the judgment and order dated 28.02.2005 passed by the learned Additional Sessions Judge (Ad-hoc), Hojai, Sankardev Nagar in Criminal Appeal No. 2/2005 affirming the judgment dated 07.12.2004 passed by the learned Judicial Magistrate, First Class, at Hojai in G.R. Case No. 488/2000 convicting the petitioners under Sections 326/34 IPC and sentencing them to Rigorous Imprisonment for 2 (two) years and to pay fine of Rs. 1000/- each, in default, to Simple Imprisonment for 6 (six) months. 2. The factual backgrounds of the case in brief are that on the evening of 13.07.2000, when the injured Abdul Noor on his arrival at Ambari Chariali from Doboka in his Ambesadar car was taking tea with Kutub Ali in a tea stall owned by Asman Ali, the accused petitioners along with their brothers armed with dao, Khukri, spear suddenly attacked him causing grievious injuries to him. The neighbours including Sukur Ali and Hussain Ahmed rescued him and took him to HAMM Hospital. The written FIR was filed by his brother Yakub Ali on the basis of which a case was registered and after completion of investigation Charge-Sheet was submitted against 4 of the accused persons including the accused petitioner. 3. During trial the prosecution examined 6 witnesses including the formal witnesses. Defence took the plea of total denial. The learned Trial Court on the basis of the evidence convicted all the four accused persons under Section 326/34 IPC. In appeal, two of the accused were acquitted by the learned Additional Sessions Judge. However, the judgment of the Trial Court so far the present petitioners were concerned was affirmed. Hence, this revision. 4. The learned advocate appearing on behalf of the petitioners submitted that the learned Trial Court should not have convicted the petitioners solely on the basis of the evidence of the injured, the other witnesses being declared hostile by the prosecution. It is further submitted that it was not possible at the time of occurrence for the injured to identify the persons who assaulted and caused injuries to him as it was dark at that time due to disruption of electricity. 5. It is further submitted that it was not possible at the time of occurrence for the injured to identify the persons who assaulted and caused injuries to him as it was dark at that time due to disruption of electricity. 5. Learned Additional Public Prosecutor, Assam on the other hand maintained that there is no legal bar in convicting the petitioners on the basis of the evidence of the injured and the Court was justified in relying on the testimony of the hostile witnesses. The injured knew the petitioners from before and there was no difficulty for him to recognise them as there was initially light in the area. 6. In the backdrop of the aforesaid contention, I have carefully perused the entire evidence, there has been concurrent finding of fact arrived at by the Courts and the revisional Court cannot interfere unless it is shown that there was miscarriage of justice due to misreading of evidence or if the evidence on record was not considered by the Courts. 7. In the instant case, there is nothing to show that the evidence on record was not considered by the Court or it was misread. PW1 is the injured and he has described the manner in which the occurrence took place. His evidence reveals that while he was taking tea in the tea stall of Asman Ali with Kutub Ali, the petitioner Ajmal Hoque assaulted him with a dao. He was followed by the other three persons and when to save himself he ran inside the tea stall, the accused Nazrul and Fakrul assaulted him with a rod and Jathi. He was rescued by PW4 Kutub Ali, PW2 Asman Ali, PW3 Nima Ali, Sukur and other persons. As a result of the injuries he fell down. He was immediately taken to the police station and thereafter, to HAMM Hospital. He remained unconscious for about 2 days in the hospital and after regaining sense, he came to know from his brother Yakub Ali that he has lodged FIR against the accused. His evidence shows that at the initial stage of assault, there was electricity and there was disruption and power was cut off after the occurrence and he could identify the accused persons as he knew them from before. There is no doubt regarding their identity. The evidence of PW1 is corroborated by PW2, PW3 and PW4 to some extent. His evidence shows that at the initial stage of assault, there was electricity and there was disruption and power was cut off after the occurrence and he could identify the accused persons as he knew them from before. There is no doubt regarding their identity. The evidence of PW1 is corroborated by PW2, PW3 and PW4 to some extent. They have been declared hostile by the prosecution but their evidence shows that PW1 sustained injuries in an assault and presence of the accused petitioners at the spot has also been established. 8. In the instant case, prosecution is mainly relying on the testimony of PW1, the injured of the case. His positive evidence is that the accused petitioners assaulted him causing grievious injuries to him. Although, the other witnesses PW2, PW3 and PW4 have been declared hostile but their evidence also confirmed that PW1 was assaulted and he received severe injuries. There is no legal impediment in accepting the evidence of hostile witnesses. 9. In Jharna Devnath v. State of Tripura (2000) 1 GLR 421, our High Court has observed that mere fact that a witness has been declared hostile does not necessarily meant that the statement of the witness is to be totally discarded. Court may act upon such statement or part thereof which is found to be reliable. 10. The evidence of PW1 is corroborated by PW5 Dr. Abani Kalita who found the following injuries :- "(1) Lt. hand Muscle and bone deep cut injury over left palm extending from palmour cranc to back of left thumb. Median nerme injury present with slips of middle ring and index finger cut. Multiple tender injury. Superficial and Deep artial injury fracture 2nd metacapel bone. (2) Right hand bone deep cut injury of right wrist with fracture carpul bone and radial staylaid process. Extension tender cut injury of wrist joint. (3) Right knee muscle deep cut injury of Rt. Knee joint." 11. The doctor opined that the injury No. 1 and 2 are grievous caused by sharp weapon and injury No. 3 was simple. The evidence of doctor coupled with the evidence of PW1 and the injury report amply prove that the accused petitioners caused grievious injuries to him with sharp weapon. 12. Knee joint." 11. The doctor opined that the injury No. 1 and 2 are grievous caused by sharp weapon and injury No. 3 was simple. The evidence of doctor coupled with the evidence of PW1 and the injury report amply prove that the accused petitioners caused grievious injuries to him with sharp weapon. 12. The FIR was lodged soon after the occurrence by the brother of the injured and in the FIR, the date, time and manner of commission of the crime has been clearly spelt out including the name of the accused persons and there is nothing to suspect embellishment or after thought. The first informant died during the pendency of the case. However, his signature has been proved. 13. On careful scrutiny of the judgment of the learned Court below, I have found that both the Courts meticulously perused and scrutinised the evidence and came to the finding. However, the learned Appellate Court found only the accused petitioners guilty under Section 326 read with Section 34 IPC. On perusal of the judgment, I do not find any infirmity which calls for revisional interference. Accordingly, the judgment is affirmed. The accused petitioners are directed to appear before the learned Trial Court within 1 (one) month to serve out the sentence. 14. Send down the records along with the copy of the judgment for information and necessary action.