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2015 DIGILAW 43 (GAU)

Sanjib Das v. State of Assam

2015-01-20

BIPLAB KUMAR SHARMA

body2015
JUDGMENT Biplab Kumar Sharma, J. 1. Heard Mr. Z. Alam, learned counsel for the accused/appellant and Mr. D. Das, learned Additional Public Prosecutor, Assam. This appeal is directed against the judgment of conviction dated 27.05.2005 of the learned Sessions Judge, Kamrup, Guwahati in Sessions Case No. 219(K)/2000 convicting the accused/appellant u/s. 307 IPC and sentencing him to undergo rigorous imprisonment for 03(three) years and also to pay fine of Rs. 3000/- (Rupees three thousand) and in default, to undergo further rigorous imprisonment for 06(six) months. 2. On the basis of the FIR lodged by the PW-1 with the Boko police station, Boko P.S. Case No. 95/2000 was registered u/s. 326/307 IPC. The FIR was lodged on 01.08.2000 alleging that on 28.07.2000, his brother Thanuram Kalita (PW-3) while coming out from the house of one Ramani Choudhury (PW-2) after doing the days work, there met the accused/appellant who was on his bicycle. The injured PW-3 was taken to river side (River Singra), where the accused/appellant assaulted him in order to kill him and thereafter thinking him to be dead, threw him into the river. 3. On receipt of the FIR, the police swung into action and carried out the investigation and thereafter submitted charge sheet u/s. 326/307 IPC against the accused/appellant. Thereafter, charges were framed against the accused/appellant u/s. 326/307 IPC and he having pleaded not guilty and claimed to stand trial, trial started. Defence case was a total denial and the accused/appellant pleaded not guilty in his statement recorded u/s. 313 Cr.P.C. Raising the following points, the learned trial Court having answered the same in the affirmative with the aforesaid sentence imposed on the appellant, he has preferred this appeal. The points that were taken for determination by the learned trial Court are as follows:-- "(i) Whether the accused on 28.07.2000 at night near Singra river voluntarily caused grievous hurt to Thanu Ram Kalita by means of a sharp cutting weapon? (ii) Whether the accused on the same day and place caused injury to Thanuram Kalita and threw him in the river in order to kill him?" 4. PW-1 is the informant, who in his deposition stated as to how his brother PW-3 had gone to the house of PW-2 for daily works and on returning at night had met the accused/appellant, who took him to the river side. PW-1 is the informant, who in his deposition stated as to how his brother PW-3 had gone to the house of PW-2 for daily works and on returning at night had met the accused/appellant, who took him to the river side. At around 12.30 at night, his injured brother was brought to his house by PW-4 one Debo Das and two others. He could see the injuries in the person of the injured. According to him, his brother sustained injuries over his head, back and arms. On being asked, the injured told him about the incident as to how the accused/appellant had taken him to the river side on a bicycle where he had assaulted him causing the injuries. He also informed the PW-1 that thinking him to be dead, he was thrown to the river. As regards the delay in lodging the FIR, the explanation furnished by the PW-1 was that since the injured had to be taken to hospital (GMCH) for treatment, where he had undergone treatment for about 15 days, there was some delay in lodging the FIR. 5. PW-2 is the witness in whose house the injured had worked on the day of occurrence. He in his deposition stated about the same and as to how he could come to know about the incident on the next day morning when he heard that the accused/appellant assaulted PW-3 and that he was removed to hospital. 6. PW-3 is the victim, who in his deposition categorically stated about the incident as to how he was taken to the river side and was inflicted with the injuries by the accused/appellant with a 'Khukri'. He also stated that he was thrown to the river and after gaining conscience, he had gone to the other side of the river by swimming. He also stated about his admission in hospital for treatment 7. PW-4 in his deposition stated that on the night of the date of occurrence, he was reported that the victim was laying in an injured condition and blood was oozing out from the injuries. Accordingly, he went to the place of occurrence and brought the injured to the house of the informant PW-1. 8. PW-5 is a reported witness, who in his deposition stated as to how he was called by PW-1 to his house and on visit he could see the victim in an injured condition. Accordingly, he went to the place of occurrence and brought the injured to the house of the informant PW-1. 8. PW-5 is a reported witness, who in his deposition stated as to how he was called by PW-1 to his house and on visit he could see the victim in an injured condition. He identified the injuries to be on the shoulder, head and palm and that blood was oozing out from the injuries. However, he in his cross examination stated that he did not know as to how the victim sustained injuries. 9. PW-6 is the Investigating Officer, who in his deposition generally stated about the investigation that was carried out He admitted that in spite of efforts being made, the injury report could not be procured, but he could procure the discharge certificate, certifying discharge of the victim from GMCH. 10. Learned counsel for the accused/appellant referring to the aforesaid evidence submits that there being no evidence to show that it was the accused/appellant who had inflicted the injuries on the person of the victim and there being no independent witness, the learned Trial Court could not have convicted the accused/appellant According to him, there being delay in lodging the FIR, coupled with the fact that the victim could swim even after sustaining the injuries, would go to show that here was no ingredient to constitute an offence u/s. 307 IPC. 11. Countering the above argument, Mr. D. Das, learned Additional Public Prosecutor, Assam however, submits that there is nothing to disbelieve the testimonies of PW-1 and PW-3. Referring to the cross examination part of the said two witnesses, he submits that the defence failed to extract anything contradictory. 12. As recorded in the impugned judgment of conviction, the injuries sustained by the victim had been noticed by PW-1, PW-4 and PW-5. The factum of injuries sustained by PW-3 is not in dispute and has been vividly narrated by the said victim in his deposition. It is in the evidence that the victim was admitted in the hospital on 29.07.2000 and was discharged on 14.08.2000. The discharge certificate also shows that the injured PW-3 sustained some lacerated injuries. The witnesses have specifically stated that the injured was in the hospital for about 15 days. It is in the evidence that the victim was admitted in the hospital on 29.07.2000 and was discharged on 14.08.2000. The discharge certificate also shows that the injured PW-3 sustained some lacerated injuries. The witnesses have specifically stated that the injured was in the hospital for about 15 days. Referring to the discharge certificate indicating lacerated injuries sustained by the victim, the learned counsel for the accused/appellant has submitted that having regard to such nature of injuries, it cannot be said to be a case falling u/s. 307 IPC. However, as submitted by Mr. D. Das, learned Public Prosecutor, Assam, the factum of throwing the victim to the river would go to show the real intention of the accused/appellant According to him, all the ingredients constituting an offence u/s. 307 IPC are present in the case. 13. The learned trial Court discussing the aforesaid evidence has held to be a case falling u/s. 307 IPC. Needless to say that in a case u/s. 307IPC, doctors evidence may not be material. Even if no injury is caused, there could be an offence u/s. 307 IPC. The evidence disclosed and discussed above, shows that the injuries were inflicted to PW-3 and thereafter he was thrown to the river. This conduct on the part of the accused/appellant clearly shows his intention constituting the offence u/s. 307 IPC. 14. In view of the above, I see no reason to interfere with the impugned judgment of conviction. At the stage, Mr. Z. Alam, learned counsel for the accused/appellant submits that having regard to the fact that the accused/appellant was about 20 years of age when the offence was committed and he is on bail all throughout, coupled with the fact that there is no reporting of any misuse of the liberty granted to him, I am of the considered opinion that the ends of justice demands that the sentence be reduced to 02(two) years instead of 03(three) years, while retaining the fine that has been imposed by the impugned judgment of conviction. 15. Accordingly, the impugned judgment of conviction stands modified. The appeal is partly allowed. 16. The accused/appellant shall now surrender before the jurisdictional Court to serve out the sentence modified by this judgment. Let the case record be sent down to the learned Court below along with a copy of this judgment.