Research › Search › Judgment

Gauhati High Court · body

2015 DIGILAW 1551 (GAU)

Heramba Handique v. State of Assam

2015-12-22

RUMI KUMARI PHUKAN

body2015
JUDGMENT : Heard Mr. N. Baruah, learned counsel for the petitioner and Mr. H. Sarma, learned Addl. PP, Assam. 2. This Criminal Revision has been preferred under Section 401 read with Section 397 of the Code of Criminal Procedure, 1973 against the judgment and order dated 3.5.2006 passed by the learned Sessions Judge, Dhemaji in Criminal Appeal No.17(4)/05 thereby dismissing the appeal preferred by the accused/petitioner and upholding the judgment and order dated 7.12.2005 passed by the learned Chief Judicial Magistrate, Dhemaji in G.R. Case No.251/2003 (SLP). 3. The case of the prosecution is that one Romen Gogoi lodged an FIR to the effect that on 28.5.2003 his father – Nobin Gogoi was found lying on the Railway Track with multiple injuries all over his body. Police after investigation, charge-sheeted the accused Heramba Handique and Robi Handique under Section326 I.P.C. After trial, the learned Additional Chief Judicial Magistrate, Dhemaji convicted the accused-Haramba Handique under Section 325 I.P.C. and sentenced him to undergo simple imprisonment for a period of three years and to pay a fine of Rs.10,000. The other accused Robi Handique was forwarded to the Judicial Court at Jorhat for trial. 4. On appeal being preferred by the petitioner before the court of learned Sessions Judge at Dhemaji, the judgment and order of the learned Additional Chief Judicial Magistrate, Dhemaji was upheld and thereby the appeal was dismissed. 5. Being dissatisfied with the aforesaid orders of the learned Courts below, the present revision has been preferred by the accused petitioner raising contentions that the judgments of the Courts below suffers from various infirmities and irregularities as the Courts below have failed to appreciate the evidence in its proper perspective of law. It has been contended that there being no eye witness to the occurrence, the evidence of the victim cannot be relied upon in absence of corroboration from the side of the prosecution witnesses itself. According to the petitioner, the evidence of the victim as well as the son cannot be relied on, firstly, because of the fact that the injured itself did not disclose the name of the assailants to those witnesses i.e. P.W.1, P.W. 2 and P.W.3, and C.W.1 and C.W.2 and the P.W.4 and P.W. 6 being the son and daughter-in-law of the victim person has falsely implicated the accused persons as the assailants. There evidence cannot also be relied upon because of the fact that they are very much interested witnesses. Thus, the very contention of the learned counsel for the petitioner is that the conviction so awarded by the Courts below cannot be sustained solely on the basis of the evidence of the victim/injured persons though his son and daughter-in-law have supported the version of the informant, but they are interested related persons. Further point of contention of the learned counsel for the petitioner is that the victim was not in a position to speak as and when the witnesses appeared, then how he can disclose the name of the accused persons before the other witnesses, raise a serious doubt upon the case of the prosecution. 6. Mr. H. Sarma, learned Additional Public Prosecutor, appearing for the State raised vehement objection against the piece of arguments put forward by the learned counsel for the petitioner. It has been contended that there is no rule of law that the evidence of the victim cannot be acted upon nor the evidence of P.Ws. 4 and 6 cannot be relied merely because they are relatives of the injured victim person. Considering the nature and extent of the injuries so sustained by the injured persons, it is contended that the learned Courts below have rightly convicted the accused petitioner and there is no reason to discard the evidence so adduced by the prosecution. Further, it is contended that non-disclosure of the names of the accused persons to each and every witnesses so appeared before the victim cannot be a ground to discard the evidence of the injured person while he was found in a serious injured condition with injuries on his head and other parts of the body. 7. I have considered the rival contentions of both the parties. As I found from the materials on record that P.W. 1-Shri Sadhulal Deori, P.W.2-Shri Liley Biswakarma and P.W.3-Pepelai Deori, all of them are from the same locality and on the day of occurrence at around 6.30 A.M. while proceeding towards the paddy field, they came to learn that one person was lying on the rail line in injured condition and all of them went to the place of occurrence and found that one person namely, Shri Nabin Gogoi was lying on the rail line facing to the ground with severe cut injuries on his person. The saw cut injuries on his right hand and other parts of the body with profuse bleedings. But they did not enquire as to who caused the injuries and neither they asked him. P.W. 1 informed the matter to the police and thereafter he went to his duty and later on they came to know that the accused persons have assaulted him. The police arrived at the place of occurrence and took the injured to the hospital. 8. Shri Nabin Gogoi, who is the injured person in the instant case as P.W. 5 has stated that about one year nine months ago, in the afternoon, he went to leave the mother-in-law of his son (who came to their house) to her house as it was evening time and at the time of returning from their house at about 10/11 P.M. the accused petitioner Heramba and his son Robi Handique suddenly attacked him and assaulted him with sharp weapons from the backside and then he fell down. The accused Heramba first dealt a cut blow on his right hand which was extended upto his body and, thereafter, the accused Robi dealt a cut blow on his head with Khukri. Though he could not assume as to what weapon of assault was taken by Heramba, but he saw the Khukri in the hand of Robi. At the time of assault, there was nobody at the place of occurrence and none arrived after hearing the hue and cries of the injured. He was lying with such injuries on his person on the rail line and he did not know as to who took him to the hospital. His right hand was amputated and he also sustained injuries on his left leg. Due to such injuries, he has now become almost invalid as he could not capable of performing any work. He also denied any sort of enmity with the accused person. 9. Supporting the contention of the injured person/P.W.5, his son-P.W. 4 (Romen Gogoi) and his daughter-in-law P.W. 6-(Smti Niru Gogoi) have stated that on the day of occurrence P.W.5 went to the house of the mother-in-law of P.W. 4 (mother of P.W.6) to escort them towards their house who came to visit them. As it was late evening, their father (P.W.5) agreed to escort them towards their house and, accordingly, he went along with them. As it was late evening, their father (P.W.5) agreed to escort them towards their house and, accordingly, he went along with them. But, on that day, he did not return. On the next morning, they were informed by the local people that their father is lying in a injured condition near the rail line. They immediately proceeded there and found the P.W. 5 lying in a severe injured condition. On their arrival, they were informed by their father (P.W.5) that he was severely assaulted by the accused persons and has been thrown on the rail line. They also found severe injuries on the right hand and left leg and on the head of their father and the right hand was almost cut down. As informed by their father, the FIR was lodged before the police, but they did not know as to why the accused persons assaulted and caused injuries to their father as they have no any sort of enmity with them. No any material omission, contradiction etc. of the witnesses were proved by any of the witnesses. The evidence of P.W.6 further reveals that the accused Heramba is her uncle and accused Rabi is the son of Heramba and she also stated that there is no short of enmity between them for causing such injuries to their father. She has denied the suggestion that P.W.5 did not escorted her mother and sister, as has been stated by them. 10. The evidence that, the victim P.W.5 sustained severe injuries is corroborated by the evidence of the Medical Officer Dr.J. Upadhaya (P.W.7) who has stated that on 29.5.2003, on examination of Nabin Gogoi in connection with this case, he found the following injuries : (1) Amputed Rt. shoulder joint, at the level of about 2” of the heonerous bone where muscle and vessels were crashed (the amputed part of the limb also crushed, humerous, ulner and radicus were fractured). (2) left patellur was fractured. (3 Lacerated injury of about 3” x 2” x 1/2” in size over left knee joint (4) Lacerated injury of about 1” x 1/6” x 1/8” in size on left left on front side. (5) Lacerated injury of about 1/2” x 1/6” x 1/6” in size over Rt. Knee joint on front side. (2) left patellur was fractured. (3 Lacerated injury of about 3” x 2” x 1/2” in size over left knee joint (4) Lacerated injury of about 1” x 1/6” x 1/8” in size on left left on front side. (5) Lacerated injury of about 1/2” x 1/6” x 1/6” in size over Rt. Knee joint on front side. (6) Lacerated injury of about 1 1/2” x 1/2” x 1/2” in size over occipital scalp.” The doctor opined that all the injuries were caused by blunt weapon and injuries No.1 and 2 were grievous in nature. He further replied in his cross-examination that the injuries were so caused within 24 hours and there was active bleeding. 11. P.W.8 (Shri Hiranya Saikia) and P.W. 9 (Shri Anil Mazumdar) are the police personnel. The I.O. Shri Anil Mazumdar, as P.W. 9, has stated in his evidence that on being informed about the fact that one person was lying with injuries near the railway line, he went to the place of occurrence and found the injured Nabin Gogoi with profuse bleeding. On arrival, he saw the right hand of the said injured Nabin was almost cut down and he had injuries on his head, knee and other parts of the body and he could speak slowly. On being asked, the said Nabin Gogoi informed that on 28.5.2003 while he was returning from the house of in-laws of his son, both the accused persons have dealt the severe cut blows upon his head, knee and right hand and have thrown him on the railway line. Finding the belongings of the victim person like one umbrella and one torch, he seized the same vide Ext.3 in presence of witnesses, namely Manjit Kumar Deori (C.W.1) and Shri Nageswar Bhuyan (C.W.2). Thereafter, he send the injured person for treatment to the Civil Hospital. P.W. 8 also supported the said fact that he being accompanied with P.W.9 arrived at the place of occurrence and had arranged for sending the injured to the hospital and saw that one hand of he injured was almost hanging from the skin because of severe cut injuries. 12. P.W. 8 also supported the said fact that he being accompanied with P.W.9 arrived at the place of occurrence and had arranged for sending the injured to the hospital and saw that one hand of he injured was almost hanging from the skin because of severe cut injuries. 12. On being referred by the I.O., the Court examined two other witnesses, namely Manjit Kumar Deori and Shri Nageswar Bhuyan as C.W.1 and C.W.2 respectively, who have stated the same aspect that on being informed about the facts that somebody is lying in a injured condition near the railway line, they went there and found P.W.5. He was lying with profuse bleeding in a very critical condition and at that time police arrived and took him to the hospital. They came to know from the family members of the injured as well as also from the police that the accused persons had dealt cut blow upon the victim. Both of them have also signed the seizure lists (Ext.3) while the police seized the articles. 13. From a careful examination of the evidence on record, it is apparent that the fact that the victim went to the house of the in-laws of his son is proved by the evidence of P.W. 4 and P.W. 6 and on the fateful day, he did not return and on the next day in the morning, he was found with severe injuries on different parts of his body. The said injured in evidence has stated that it was both the accused person who had conjointly caused injuries on his person from the backside while he was returning from the house of in-laws of his son. In-fact, the present accused petitioner is the in-laws of his son P.W.4. There is nothing discernible that there was any sort of enmity between the parties so as make false implication of the accused petitioner. The occurrence took place at about 10-11 P.M. and as he was suddenly attacked from the back side, the injured could not properly notice as to what ws the weapon used by them. He, however, noticed one Khukri in the hands of the accused Robi Handique when he saw back. The occurrence took place at about 10-11 P.M. and as he was suddenly attacked from the back side, the injured could not properly notice as to what ws the weapon used by them. He, however, noticed one Khukri in the hands of the accused Robi Handique when he saw back. It is also emerged from his evidence that P.W. 5 lies near the railway line for the whole night with severe injury and he was found there in a very critical condition on the next day morning, but, he however survives the injuries. In the given circumstances, it is quite natural that he was unable to speak properly and it is also not expected that he will speak to each and every person as to who have assaulted him. On the other hand, the witnesses P.W.1, P.W.2 and P.W.3 and C.W.1 and C.W. 2 also did no ask the injured as to who had caused him the injuries. They simply informed the police and returned to their duties after visiting the injured. In such a situation, non-reporting of the matter by the victim person to these witnesses is itself explanatory. As those persons had not asked him as to who had caused the injuries, it was natural that the injured who was also in a critically injured condition has not disclosed all details of the matter to them. 14. On the next, the evidence of P.W. 4 and 6 have also given a neutral evidence and it suffers from no sort of vice or omission and contradiction etc. and, as such, their evidence cannot be discarded only because they were related to the victim/injured. 15. The defence could not hammer on any aspect of these three vital witnesses. If it is a fact that the injured did not went to let-off those persons/in-laws of his son, as has been suggested, the defence could have examined all those witnesses to prove the fact, but the same has not been done in the instant case. The defence neither gave any plausable answer to the question so put under Section 313 Cr.P.C. and also did not adduce any evidence on their part. The defence neither gave any plausable answer to the question so put under Section 313 Cr.P.C. and also did not adduce any evidence on their part. On the other hand, the evidence so far examined by the prosecution lend support to the fact that the injured was found in a very critical condition with severe injury on his person and P.W.4 and P.W.6 who were son and daughter-in-law of he injured as well as .W.9, the I.O. of the case, who also arrived at the place of occurrence immediately on being informed that Nabin Gogoi was lying near the railway line, all these witnesses has supported the case of the victim who disclosed before them hat it was accused persons who have dealt such severe blow on his head and hand. There appears no any reason whatsoever on the part of the I.O. to falsely implicate the accused persons. According to the I.O., on being asked, the injured person has disclosed the name of the accused persons as the assailants. The evidence of the I.O. also not liable to be discarded in the given circumstances. 16. On the other hand, relationship is not a factor to affect the credibility of a witness. There is no rule of any presumption that evidence of related witnesses will always be interested one or that such witnesses will have only hostile attitude towards the accused facing the trial. On principle, it is difficult to hold that if the witnesses is shown to be relative of a victim, his evidence cannot be accepted unless it is corroborated by material particulars. In the instant matter in hand, the false implication of the accused petitioner can be ruled out and similarly credibility of the witnesses is not shaken by the defence so as to discredit their evidence. Of-course, no motive has been proved to commit the crime, but it is also a proposition of law that conclusion of guilt can be awarded in absence of motive. 17. We have already found that the evidence of the victim-P.W.5 is corroborated by the evidence of the witnesses, as discussed above, and also supported by the evidence of the M.O. as regard the injuries so sustained by him. His right hand was almost amputated as per the evidence of the M.O. and the injured is not in a position to perorm his work even. 18. His right hand was almost amputated as per the evidence of the M.O. and the injured is not in a position to perorm his work even. 18. In the circumstances, it can be held that the learned Courts below have rightly held the accused petitioner guilty and has convicted and sentenced the accused adequately, which needs no interference. The impugned judgments and orders are hereby upheld. The accused is directed to surrender before the Trial Court to serve the sentence within two months from today. Return the LCR. 19. In the result, the revision is dismissed.