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2015 DIGILAW 416 (GAU)

Ramjan Ali v. State of Assam

2015-04-02

BIPLAB KUMAR SHARMA

body2015
Biplab Kumar Sharma, J. 1. This appeal is directed against the judgement of conviction dated 19/02/2010 of the learned Additional Sessions Judge (FTC), Nagaon, Assam, passed in Sessions Case No. 164(N)/2006. By the said judgement, while convicting the accused appellant under Section 307/326 IPC, he has been sentenced to undergo R.I. for 7(seven) years with fine of Rs. 500/- for each one of the offences. Both the sentences are to run concurrently. The period of detention which the accused appellant had already undergone during trial shall stand set of under Section 428 Cr.P.C. 2. According to Mr. B.M. Choudhury, learned counsel representing the accused appellant having regard to the evidence on record, at best it would be a case falling under section 326 IPC requiring reduction of the sentence already imposed by the impugned judgement. Mr. D. Das, learned APP, Assam on the other hand submits that when there is overwhelming evidence indicating that it was the accused appellant who had committed the offence, the impugned judgement of conviction requires no interference. 3. I have considered the submissions advanced by the learned counsel for the parties and have also perused the entire material evidence on record. My findings and conclusions are as follows. 4. Nagaon Police Station Case No. 540/2005 was registered under Section 341/326 IPC on the basis of the FIR that was lodged by one Alaluddin (PW-4) stating therein that at about 8-30 p.m. while his son Jamir Ali (PW-1) was coming from his brother-in-law's house, the accused Ramjan Ali accosted him in front of his house and inflicted serious injuries by means of a Khukri. It was disclosed in the FIR that due to assault, his son sustained injuries at the back of his neck and his 3 (three) fingers of the right hand got completely severed. With the lodging of the FIR, the I.O. undertook the investigation and on completion of the same submitted charge sheet against the accused appellant under Section 341/326/307 IPC and eventually charge was framed under Section 326/307 IPC. On being read over and explained the charges, the accused pleaded not guilty and claimed to be tried. 5. With the lodging of the FIR, the I.O. undertook the investigation and on completion of the same submitted charge sheet against the accused appellant under Section 341/326/307 IPC and eventually charge was framed under Section 326/307 IPC. On being read over and explained the charges, the accused pleaded not guilty and claimed to be tried. 5. During trial prosecution examined 9(nine) witnesses and the accused appellant was also examined under Section 313 Cr.P.C. The learned trial Court raising the following points for determination having answered the same in favour of the prosecution and against the accused appellant vide the impugned judgement of conviction, the accused has preferred this appeal. "Point for determination of the case Whether on 20.07.05 at Makhuli Hulapar the accused Ramjan Ali voluntarily caused grievous hurt to Jamir Ali by means of a Khukri a sharp cutting weapon. Whether on the same date, time and place the accused Ramjan Ali did an act, to wit caused grievous injury to Jamir Ali with such intention and under such circumstances, that if, by that act, he would have caused the death of Jamir Ali he would have been guilty of murder." 6. PW-1 is the injured who in his deposition vividly narrated the incident that happened with him on 20/07/2005 in which he sustained injury at the back of his neck and also lost 3 (three) fingers of his right hand. He deposed that while he came out of the house of his brother-in-law Dulal Uddin after taking dinner, he met the accused appellant on the road and both of them were walking towards the east. When they reached near the house of Lalmia, the accused Ramjan Ali assaulted him by means of a Khukri, as a result of which he sustained injuries referred to above. His two fingers got severed and fell down on the ground. He further deposed that immediately thereafter he rushed to the house of Asmat Ali (PW-2) and informed him about the incident and causing injury to him by the accused appellant. Thereafter he became senseless and regained his sense in Nagaon Civil Hospital where he was treated for 14 days. Although this witness was cross examined at length but no contradiction could be brought out. 7. PW-2 also duly corroborated the PW-1. Thereafter he became senseless and regained his sense in Nagaon Civil Hospital where he was treated for 14 days. Although this witness was cross examined at length but no contradiction could be brought out. 7. PW-2 also duly corroborated the PW-1. He in his deposition narrating the incident stated that on the date of occurrence while he was sleeping inside his house, the injured (PW-1) entered into his house and he could notice blood on his body. Seeing blood he lost his sense. When he regained his sense, he found that the injured was not there as he was taken to civil hospital. He categorically stated that th blood was oozing out from the finger of Jamir. After about 2/3 days he visited the hospital to see the injured. 8. PW-3 in his deposition stated that on the date and time of the incident, he was inside his house. It was around 8-9 p.m. when he heard hue and cry in the courtyard of PW-2. He opened the door but could not see anything in the light of lamp. Although could hear hue and cry raised by people but he did not go out. 9. PW-4 is the informant and father of the injured who in his deposition stated that he could come to know from his son that the accused appellant had assaulted him. He stated that because of the injuries sustained by his son he had to be hospitalized in senseless state. He could notice the injury marks on his son's neck and also found two of his fingers severed from hand. When his son regained sense he informed about the occurrence and he revealed that it was the accused appellant who inflicted injuries in front of his house in the road. During cross examination he denied the suggestion that the accused did not inform him that it was the accused appellant who had inflicted the injuries. 10. PW-5 is the brother of the informant. He also testified that on the night of occurrence at about 8-30 p.m., hearing noise in the village regarding infliction of injuries on PW-1 by the accused appellant he had rushed to the place of occurrence and found that Jamir i.e. the injured was already put on a rickshaw and the accused appellant was standing with a Khukri in his hand. He also stated about taking the injured to the Nagaon Civil Hospital and he accompanied him. He also testified that the injured was in senseless condition. On the next date morning when he regained sense, he told him that it was the accused appellant who inflicted injuries on him, as a result of which two of his fingers were completely severed while another sustained injury including the injury at the back of his neck. 11. PW-6 in his deposition stated that while he was returning from his shop he found the injured coming in a rikshaw in injured condition leaning on the body of another person. On enquiry, he was informed that it was the accused appellant who had inflicted the injuries on the injured, as a result of which he sustained injuries referred to above. PW-7 is the wife of the PW-2 who duly corroborated her husband. She in her deposition stated that the injured had entered their house shouting "Bachao". Seeing the injured she fell down and became unconscious. 12. PW-8 is the doctor who had examined the injured on 20/07/2005 and found the following:- "1. Incised wound base of right oscipatal area 8 cm x 1 cm/Oblique muscle deep with active bleeding and fresh. 2. Amputed right index finger, via proximal 1/3rd of 2nd phalynex. 3. Amputed right middle finger through proximal phalynex. 4. Partial amputation, right ring finger through P/P joint. All the wounds are fresh." In his opinion, he stated that the injury No. 1 was simple, sharp cutting, recently caused by moderate to heavy weapon and injuries No. 2, 3, and 4 were recently caused by sharp cutting moderately heavy weapon and grievous. He exhibited the injury report (Ext.1). 13. PW-9 is the I.O. who in his deposition generally stated about the investigation that was carried out. 14. On the basis of the above evidence, the learned trial court has convicted the accused appellant. Mr. B.M. Choudhury, learned counsel representing the appellant submits that it will be totally unsafe to convict the accused appellant on the basis of the sole testimony of PW-1, more particularly when it has come on evidence that it was a dark night. He also submits that no motive having been attributed against the accused appellant, the incident allegedly caused by him is unbelievable. He also submits that no motive having been attributed against the accused appellant, the incident allegedly caused by him is unbelievable. He also submits that at best it would be a case falling under Section 326 IPC, inasmuch as, had there been a khukri blow that too on neck, there would have been severe injuries. 15. Countering the above argument, Mr. Das, learned APP, Assam submits that when all the witnesses had pointed out that it was the accused appellant who had committed the offence irrespective of failure to ascertain the motive behind the act, the accused appellant is liable to be convicted and accordingly the learned Trial Court did not commit anything wrong in convicting him. As regards the submission that injury on neck was not severe, he submits that the very fact that the injured lost two of his fingers and also sustained grievous injury in another finger would go to show that he sustained injuries while trying to save his neck from being cut by the accused appellant with the Khukri. 16. As discussed above, the defence failed to dislodge the evidence of the prosecution witnesses in the cross examination. No material contradictions could be brought out. PW-1 categorically stated that it was the accused appellant who had inflicted the injuries on him. They are known to each other. This testimony of PW-1 is further corroborated by the testimony of other witnesses discussed above who in their deposition categorically stated that regaining consciousness, the PW-1 informed that it was the accused appellant who had inflicted the injuries. 17. Above being the position, I see no reason to interfere with the impugned judgement of conviction. This now leads us to the second leg of submission made by Mr. B.M. Choudhury, learned counsel for the accused appellant that since the accused appellant has already undergone more than 4 years of imprisonment and has already granted bail by order dated 21/02/2014 passed in Crl. M.C. No. 1003/2013, the sentence be reduced to the period of imprisonment already undergone. He submits that the family members of the accused appellant are dependent on him. He also submits that the family of the accused appellant consists of his dependent parents, wife and minor children. 18. Considering the matter in its entirety, accepting the said submission made by Mr. He submits that the family members of the accused appellant are dependent on him. He also submits that the family of the accused appellant consists of his dependent parents, wife and minor children. 18. Considering the matter in its entirety, accepting the said submission made by Mr. Choudhury, learned counsel for the accused appellant, the sentence of 7 years R.I. for both the offences under Section307/326 IPC stand reduced to the period already undergone, but with the enhancement of the fine for both the offence to Rs. 15,000/- each totaling to Rs. 30,000/-. In case of default of payment of this fine, the accused appellant shall undergo R.I. for further 6 (six) months each and both the sentences in lieu of payment of fine shall run concurrently. The amount of fine shall be deposited with the learned trial Court on or before 15/05/2015, failing which the sentence in lieu of fine shall stand executed. It is further provided that the fine, if deposited by the accused appellant, shall be paid to the victim i.e. the PW-1. 19. With the above modification of sentence, the appeal stands disposed of. Registry shall send down the case records to the learned Court below along with the copy of this judgement.