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2015 DIGILAW 1517 (GAU)

Kamal Hazarika v. State of Assam

2015-12-10

PARAN KUMAR PHUKAN

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JUDGMENT AND ORDER : Paran Kumar Phukan, J. 1. Under assailment in this revision is the judgment and order dated 04.12.2004 passed by the learned Sessions Judge, Tinsukia in Criminal Appeal No. 28(2)/2004 affirming the judgment and sentence dated 20.05.2004 passed by the learned Additional Chief Judicial Magistrate, Tinsukia in G.R. Case No. 133/1998 convicting the accused petitioner under Section 326 IPC and sentencing him to Rigorous Imprisonment for 1 (one) year and to pay fine of Rs. 5,000/-, in default, to Simple Imprisonment for 15 (fifteen) days. 2. The factual aspects of the case in a nutshell is that on the evening of 30.01.1998, while the injured Mrinmoy Choudhry was coming back to his house at about 9.30 pm along with the wife of the accused petitioner, Hemanti Hazarika at her request to escort her to her house and when he was taking betel nut offered to him by Hemanti Hazarika in her house, her husband (accused petitioner) arrived and inflicted dao blows to him on the lower part of his abdomen and pelvic region and other parts of his body causing grievious injuries to him. The injured was brought to his home by one Dusu a neighbour from the place of occurrence and thereafter, he was taken to St. Luke's Hospital at Tinsukia by his brother Mrinmoy Choudhury. 3. In pursuance to FIR lodged by Mrinmoy Choudhury, Bordubi P.S. Case No. 13/1998 was registered and on completion of investigation Charge-Sheet was submitted against the revision petitioner and his wife Hemanti Hazarika. 4. Trial commenced before the learned Additional Chief Judicial Magistrate, Tinsukia. Prosecution examined 4 witnesses including the Medical Officer and the Investigating Officer. The accused Hemanti Hazarika took the plea that the accused petitioner tried to commit rape on her and to protect herself, she inflicted the injuries to him. The plea of the revision petitioner is that at the relevant time, he was in his office and he was not involved and there have no scope to commit the crime. In support of the defence, one witness has been examined by the accused revision petitioner. 5. I have heard the learned counsel appearing for the revision petitioner and the learned Additional Public Prosecutor, Assam and meticulously gone through the entire materials placed before me. 6. In support of the defence, one witness has been examined by the accused revision petitioner. 5. I have heard the learned counsel appearing for the revision petitioner and the learned Additional Public Prosecutor, Assam and meticulously gone through the entire materials placed before me. 6. Learned counsel appearing on behalf of the petitioner submits that at the time of the occurrence, the accused petitioner was not at home and he was performing duty at Oil India Limited, Duliajan and he has been falsely implicated in the case being the husband of Hemanti Hazarika. 7. It is next contended that there are inherent infirmities in the testimony of the informant and the injured which renders the prosecution case unreliable. It was next contended that no grievious injury was sustained by the injured within the ambit of Section 320 of the IPC. There is no dispute regarding the injuries sustained by the injured PW2 in the house of the revision petitioner. The only question which is to be considered is whether PW2 was assaulted by the revision petitioner or his wife. 8. Since the accused petitioner has taken the plea of alibi, it would be pertinent to decide this aspect of the case. It is a settled proposition that the plea of alibi is admissible under Section 11 of the Evidence Act, when on facts, the plea is upheld, the Court is justified in taking the view that the accused had been falsely implicated. The burden lies on the accused to prove the plea of alibi and it must be proved to the hilt. 9. In the instant case to prove the plea, the accused petitioner has examined DW1 Hiren Ch. Bora, Senior Manager, Industrial Relation, Oil India Limited, Duliajan in which the accused petitioner was an employee. His evidence reveals that on that particular day, the accused petitioner was attending to his duty from 1 pm to 9 pm and in this regard, he issued the certificate, Ext. Ka. The attendance register Ext. Kha has also been produced during the trial which shows the presence of the accused in the office from 1 pm to 9 pm. 10. In the instant case, the occurrence took place at about 9.30 pm. There is nothing in the evidence to show that the accused petitioner could not have arrived at home within ½ an hour and commit the crime. 10. In the instant case, the occurrence took place at about 9.30 pm. There is nothing in the evidence to show that the accused petitioner could not have arrived at home within ½ an hour and commit the crime. The accused even after performing duty could have arrived at home within ½; hour and on seeing the accused with his wife in his house, he became annoyed and caused the injuries to the injured. It cannot be said from the evidence of DW1 that he could not have arrived at home by 9.30 in the evening after performing duty in the office upto 9 pm. Leaving office before the schedule time also cannot be ruled out. Obviously, the plea of alibi taken by the accused petitioner fails and is not believable. In Rajesh Kumar vs. Dharam Vir, reported in 1997 (4) SCC 496 , it has been held by the Apex Court that the alibi must be proved with obvious certainty completely excluded the presence of the accused at the time and place where the incident took place. 11. Turning to the evidence of the injured PW2, it is found that he has not uttered a single word regarding involvement of the wife of the accused in the commission of the crime. His evidence is that he became unconscious after taking betel nut and at that moment, the accused petitioner arrived and dealt blows on the lower portion of his abdomen with a dao as a result of which, he became unconscious and he regained sense in the hospital. He denied the defence suggestion that when he tried to commit rape on Hemanti Hazarika, she attacked him with a dao and caused the injuries. The suggestion is not acceptable as no such statement has been made by the accused during her examination under Section 313 of the Cr.P.C. Moreover, the evidence of PW2 is corroborated by his brother PW1 before whom he had stated that the accused petitioner has caused the injuries to him in his house. 12. It is in the evidence of PW1 that while he was in his house his brother came in an injured condition and he saw blood on the thigh portion and on being asked, it was disclosed to him that the accused petitioner caused the injuries with a dao because of some altercation. 12. It is in the evidence of PW1 that while he was in his house his brother came in an injured condition and he saw blood on the thigh portion and on being asked, it was disclosed to him that the accused petitioner caused the injuries with a dao because of some altercation. It was PW1 who had taken his brother to the hospital for treatment and he lodged the written FIR, Ext. 1 on the next morning before police. It is not difficult to presume that the delay in filing the FIR was due to the fact that he was busy in the treatment of his injured brother in the hospital. 13. In the FIR, the date, time and manner of commission of the crime has been clearly spelt out including the name of the accused and there is nothing to suspect embellishment or after thought. The evidence of PW1 and PW2 is further corroborated by PW4, the doctor who examined the injured in the hospital. On examination, he found penetrating injuries over left lower side of abdomen, cut injury over right index finger and also cut injury over left index and middle finger. According to the doctor, the injury was grievious in nature and caused by sharp weapon. The Investigating Officer during investigation seized the blood stained cloths vide seizure Ext. 2 which has been duly proved by him. 14. On careful scrutiny of the evidence of PW1 and PW2 coupled with the evidence of the doctor, there is no doubt that PW2 sustained grievious injury on the lower portion of his abdomen and he had remained in hospital for more than three weeks. The ocular testimony of the victim stands on a high pedestal than any other witness. It is also a settled law that conviction for such offence can also be recorded on the sole testimony of the injured witness. 15. In the present case, the injured has clearly implicated only the accused petitioner and not a single whisper is there in his evidence against his wife. The injured was a young man aged about 22/23 years and record reveals that the wife of the accused petitioner was aged about 40 years and it was not possible on her part to overpower the injured and cause multiple injuries to him with a dao. The injured was a young man aged about 22/23 years and record reveals that the wife of the accused petitioner was aged about 40 years and it was not possible on her part to overpower the injured and cause multiple injuries to him with a dao. No injury was received by the wife which lends assurance to the prosecution evidence regarding complicity of the accused in the commission of the crime. There was no previous enmity between the injured and the accused petitioner and it is most unlikely that the injured would implicate an innocent person by sparing the real culprit. In the cross-examination, nothing could be brought out from the evidence of PW2 to discredit his testimony. 16. In Brahm Swaroop & Another vs. State of U.P. reported in AIR 2011 SC 280 , the Apex Court has held that where an witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in-guarantee of his presence as the scene of the crime and is unlikely to spare his actual assailants in order to falsely implicate someone. Convincing evidence is required to discredit an injured witness. In the instant case, I do not see any material contradiction in his evidence to throw the prosecution case overboard. 17. Having heard the learned counsel appearing for both the sides and having gone through the evidence on record and for all the reasons as aforesaid, I do not find any infirmity in the judgment passed by the learned Sessions Judge, Tinsukia in convicting the accused petitioner under Section 326 of the IPC, as a consequence, the impugned judgment is affirmed. 18. Mr. G.N. Sahewalla, learned counsel for the petitioner submits that the offence was committed in the year 1998 and more than 16 years have elapsed from the date of commission of the crime. It is next submitted that the injured himself while adducing evidence expressed his desire to effect a compromise. On going through the evidence of PW2, I have found that he in fact wanted to compromise the case. 19. From the facts and circumstances of the case, it appears that the accused petitioner was annoyed on seeing his wife with the injured and he caused the injuries in a heat of passion and there was no premeditation. On going through the evidence of PW2, I have found that he in fact wanted to compromise the case. 19. From the facts and circumstances of the case, it appears that the accused petitioner was annoyed on seeing his wife with the injured and he caused the injuries in a heat of passion and there was no premeditation. There was no previous enmity with the accused petitioner. They are neighbours residing in the same village and they wanted to arrive at a compromise but it was not materialised as the offence under Section 326 IPC is not a compoundable offence. 20. Considering the submissions and the compromise arrived at between the parties, the facts and circumstances of the case, the age and antecedent etc. of the accused petitioner, in my considered view, it is a fit case to take a lenient view while passing sentence. Considering all aspects, I sentence the accused to suffer Rigorous Imprisonment for 3 (three) months and to pay fine of Rs. 10,000/-, in default, to imprisonment for another 3 (three) months. Fine, if realised shall be paid to the injured as compensation. The accused petitioner is directed to surrender before the learned Trial Court within 1 (one) month from the date of passing of the order. Send down the LCR along with a copy of this order to the learned Courts below for information and necessary action.