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2015 DIGILAW 309 (GAU)

DHRUBA RABHA v. STATE OF ASSAM

2015-03-13

B.K.SHARMA

body2015
ORDER (ORAL) 1. This appeal is directed against the Judgment of conviction dated 19/06/2014 of the learned Sessions Judge, Goalpara in Sessions Case No. 119/2013, by which while convicting the accused appellant under Section 307 IPC, he has been sentenced to undergo S.I. for 5 (five) years with a fine of Rs. 2,000/- and in default of payment of fine, further S.I. for 3 (three) months. 2. On the basis of the FIR lodged on 28/10/2012 by PW-1, Dhupdhara PS Case No. 85/2012 was registered under Section 341/326/307 IPC. As stated in the FIR, on 28/10/2012 at about 5.00 p.m., the accused appellant with an intention to kill the injured inflicted injuries on his head with a spade. Thereafter with the help of the local people, the accused appellant was caught but at the time of apprehending him, he again assaulted the people. 3. On receipt of the FIR, investigation was set to motion and on completion of the same, charge sheet was submitted against the accused appellant under Section 341/326/307 IPC. It appears that after the apprehension of the accused appellant he had to remain in jail for a considerable period which is said to be for the period from 30/10/2012 to 31/05/2013. After the Judgment was delivered on 19/06/2014 also, in absence of any order for bail he is still in jail. 4. As recorded in the order dated 28/01/2015 of the Superintendent of District Jail, Goalpara, the accused appellant has been recommended to Psychiatric Department, Guwahati Medical College and Hospital for complete diagnose and to assess his present mental status. It is submitted by the learned counsel for the appellant that he accused appellant has been suffering from mental disease and presently is under treatment. 5. The learned trial Court having framed charge under Section 307 IPC, the same was read over and explained to the accused appellant to which he pleaded not guilty and claimed to be tried. Thereafter trial commenced. 6. During trial, the prosecution examined 9(nine) witnesses including the Medical Officer and the Investigating Officer. The statement of the accused appellant was also recorded under Section 313 Cr.P.C. The learned trial Court has passed the impugned Judgment of conviction and sentence primarily on the basis of the evidence of PW-2 and PW-3 i.e. injured and his wife. 6. During trial, the prosecution examined 9(nine) witnesses including the Medical Officer and the Investigating Officer. The statement of the accused appellant was also recorded under Section 313 Cr.P.C. The learned trial Court has passed the impugned Judgment of conviction and sentence primarily on the basis of the evidence of PW-2 and PW-3 i.e. injured and his wife. The learned trial Court has held that it was a clear case of an offence punishable under Section 307 IPC. 7. Mr. Z. Alam, learned counsel for the appellant submits that even if the evidence led by the prosecution is taken on its face value, then also at best it will be a case falling under Section 326 IPC and not 307 IPC. He submits that since there was no pre-meditation towards commission of the offence by the appellant and everything happened at the spur of the moment. He submits that there was also counter attack on the part of the injured that there was enough provocation, as a result of which the incident occurred. 8. Countering the above argument, Mr. B.B. Gogoi, learned APP, Assam, however, submits that even if there was some altercation between the injured and the accused appellant, the same could not have led to the assault that was inflicted by the accused appellant on the injured. He submits that all the ingredients required for commission of the offence punishable under Section 307 IPC being present in this case, the impugned Judgment of conviction is not liable to be interfered with. 9. PW-1 is the brother of the injured, who simply lodged the FIR. narrating the incident as referred to above. PW-2 is the injured who in his deposition stated that while he was going towards the local bazaar accompanying by his wife, he could see the accused appellant urinating facing towards his house. He took offence to the same and remonstrated the accused appellant to which the accused took offence and advanced towards him. Thereafter, the accused picked up a stick from the road and tried to give some blow. However, the injured could dodged the same. Thereafter, the mother of the accused appellant came to the spot and took her son i.e. the accused appellant to her house. However, the victim again came back and this time with a spade on his hand and assaulted the injured with blows on his head. However, the injured could dodged the same. Thereafter, the mother of the accused appellant came to the spot and took her son i.e. the accused appellant to her house. However, the victim again came back and this time with a spade on his hand and assaulted the injured with blows on his head. He further stated in his deposition that he became unconscious and regain his senses in the particular Nursing Home where he remained over-night and on the next day he was released. In the cross examination, he stated that when he was assaulted, there was none present except his wife. 10. PW-3 is the wife of PW-2 who had accompanied him to the village bazaar when the incident occurred. She while corroborating the incident narrated by PW-2, however, stated that there was a verbal fight between her husband and the accused when it was found that the accused appellant was urinating facing their house. During that verbal fight, the accused appellant tried to slap her husband by means of a slipper and her husband also got agitated and clubbed him by means of a stick. Thereafter the accused appellant went back to his house and again came back with a spade and dealt the blows on the head of the injured because of which he fell down and thereafter he was taken to hospital, where he had to remain overnight. 11. PW-8 is the doctor who had examined the injured who in his deposition stated that the following injuries were found :- “(1) A cut injury on left temporal region and transversely division of left ear in two pieces. The cartilage of the ear also divided, 5 x 3 x 1.5 cm in size. Edges were fine and profuse bleeding coming out from the wound. (2) Another cut injury middle of occipital region, 5 x 3 x 3 cm in size.” He in his deposition proved the report Ext. 3. As per his opinion, the injuries were grievous in nature and were caused by sharp cutting weapons. 12. Although PW-5 stated in her deposition that she had also seen the actual occurrence but the learned trial Court disbelieved her evidence in reference to the evidence of PW-9. PW-9 in his evidence affirmed the contradiction that surfaced in the evidence of PW-5. PW-6 and PW-7 are the seizure witnesses. 12. Although PW-5 stated in her deposition that she had also seen the actual occurrence but the learned trial Court disbelieved her evidence in reference to the evidence of PW-9. PW-9 in his evidence affirmed the contradiction that surfaced in the evidence of PW-5. PW-6 and PW-7 are the seizure witnesses. Other PWs are of no help to the case of the prosecution. 13. It is on the basis of above evidence, the learned trial Court has convicted the accused appellant under Section 307 IPC. If we go by the evidence of PW-2 and PW-3, what has emerged is that the whole incident occurred due to verbal altercation by and between the injured and the accused appellant. The verbal fight took place when the injured took offence to accused appellant urinating facing his house. It is also in the evidence of PW-3 that her husband also got agitated and clubbed the accused appellant by means of a stick. There is nothing in the evidence to show that there was any pre-meditation on the part of the accused appellant to do the act. Everything happened at the spur of the moment because of the said incident of urinating which the injured felt insulting to him. It is also in the evidence that there was no persistent attack on the vital parts of the body of the injured. As per the medical report, the injury No. 1 was on the left temporal region of the injured and the injury No. 2 was on his head. 14. In such circumstances coupled with the fact that there was no pre-meditation on the part of the accused appellant to commit the particular offence, I am of the considered opinion that it would not be a case in which it can be said that the accused appellant did the act with such intention or knowledge that by the said act, he would be guilty of murder. Having regard to the aforesaid facts and circumstances including the nature of the injury sustained by the injured coupled with the fact that he had to remain in hospital for one night only, I am of the considered opinion that it would be a case falling under 326 IPC and not under Section 307 IPC. 15. This now leads us as to what should be appropriate punishment that can be imposed on the accused appellant under the said section. 15. This now leads us as to what should be appropriate punishment that can be imposed on the accused appellant under the said section. As recorded above, the accused appellant was arrested on 30/10/2012 and had to remain in imprisonment upto 31/5/2013. Thereafter also, he is in jail ever-since the Judgment of conviction was passed. Thus, by now he has completed almost 1 ½ years. Coupled with this, he is also suffering from mental disorder. Having regard to this aspect of the matter, I am of the considered opinion that ends of justice would be met if the accused appellant is sentenced to imprisonment for the period he has already undergone for the offence under Section 326 IPC. 16. In view of the above, the appeal partly succeeds with the modification of the conviction and sentence as aforesaid. Consequently, the accused shall be released forthwith if not wanted in connection with any other case. 17. Registry shall send down the LCR to the learned court below along with a copy of this Judgment and order.