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2015 DIGILAW 745 (GAU)

Anam Uddin Laskar v. State of Assam

2015-06-12

RUMI KUMARI PHUKAN

body2015
JUDGMENT : Heard Mr. A. Choudhury, learned counsel for the appellants and Mr. B.S. Sinha, learned Addl. PP, Assam. 2]. The case of the prosecution is that on 17.06.2004 at about 8.00 A.M. one Abdul Mannaf was proceeding to Narainpur through Algapur-Narainpur, P.W.D. road by riding a bicycle and carrying Rs.30,000/- with him for making payment to his labourers and while reached Narainpur Part-II near Babur Jungle, he saw accused Anam Uddin, Islam Uddin, Samsul Haque and Gulenoor sitting by the side of the road arming with daos in their hands and while the injured reached the said place where accused persons were sitting, the accused persons stopped his bicycle, one of the accused inflicted dao blow on his left leg, another on his right hand, he fell down on the ground. The accused than dragged him nearby the paddy field and inflicted more dao blows on different parts of the body. The accused Anam Uddin snatched away the cash amount of Rs.30,000/- from the possession of the victim. There were also two wintness namely Moinul Haque and Shahab Uddin who were proceeding towards Narainpur and saw the accused assaulting the victim. Later on the brother of the victim arrived and took him to Algapur P.H.C. by a Auto-Rickshaw. It is the younger brother Md. Siraj Uddin who lodged an F.I.R. with the Algapur Police Station which was registered as Algapur P.S. Case No. 54/2004 under Sections 147/148/149/341/326/379 of the Indian Penal Code. 3]. On completion of the investigation, Police submitted Charge-Sheet Under section 341/326/307/34 IPC against the accused person. The learned Court below committed the case to the Court of Sessions being the offence under Section 307 IPC triable by the Court of Sessions. At the conclusion of the trial, the learned Sessions Judge held the accused guilty under Section 326 IPC and by the impugned judgment and order dated 08.08.2006 in Sessions Case No.10/2006 convicted the applicants/appellants/accused under Sections 326/34 IPC and sentenced all the accused persons to undergo rigorous imprisonment for ten years each and to pay a fine of Rs.1,000/- (Rupees One thousand) each, in default, to suffer R.I. for one month each. 4]. 4]. Being aggrieved with the aforesaid Judgment, the present appeal has been preferred by the appellants on the various grounds that the learned Court below has erred in law while assessing evidence on record as the evidence of prime prosecution witness is contradictory on material aspect. The learned Court ought to have procured the evidence of one Manik Roy in the house of which the incident took place and the victim sustained injuries on his person therein. Further, the evidence of so called eye witnesses are not at all reliable as their evidence is contradicted by the I.O. on material aspect. Over and above, it is stated there are no any motive on the part of the appellant for the commission of the offence. 5]. Referring to the grounds of appeal mentioned above, the learned counsel for the appellants has pointed out certain discrepancies which is according to him is fatal for prosecution which has rendered whole prosecution case doubtful. The evidences of PW. 1 & 2 has been assailed on the ground that according to them the injured/P.W.1 was taken to police station after the incident but according to the I.O. the injured was not taken to police station and the injured was directly taken to Silchar Medical College and he met them in the hospital. Further it has been urged that the evidence of the so called eye witnesses has been fully contradicted by the I.O. so their evidence cannot be relied on. Similarly, it has been argued that M.O. has opined that the injured was produced by the Police not by relative which is again belied the statement of the injured witnesses. It has also been assailed the fact that the injured was stated to be a contractor as has been averred in the FIR has been belied by the injured himself which goes to show that neither he was a contractor nor he carried money for delivery to his employees. Thus, according to the learned counsel for the appellant prosecution cannot stand upon such evidence which is contradictory with each other and inconsistent on material aspect. 6]. Par contra, the learned Addl. PP, Assam refuting the argument so advance by the learned counsel for the appellants, it has been submitted that there is no ground whatsoever to disbelieve the evidence of injured witness which is again supported by two vital eye witness. 6]. Par contra, the learned Addl. PP, Assam refuting the argument so advance by the learned counsel for the appellants, it has been submitted that there is no ground whatsoever to disbelieve the evidence of injured witness which is again supported by two vital eye witness. Only because of certain omission and contradiction in the evidence eye witness, which does not go to root of the case, the evidence of eye witnesses cannot be discarded. That apart, the evidence of M.O. has also supported the injuries sustained by the injured who was examined immediately after the occurrence. 7]. After hearing the rival contention of the learned counsel for both the parties, let us appreciate the evidence on record as well as all the facts and circumstances as well. The injured person Mr. A. Manaf/P.W. 1 has given a detail description of the incident that while he was proceeding to the Narainpur market on a bicycle with a sum of Rs.30,000/- with him to make payment to his labourers working under him then the accused persons who were sitting by the side of the road near Babur jungle stop his bicycle and they started inflicting dao blows on his both left and right legs resulting severe injuries on his person and thereafter one of the accused person dragged him to nearby paddy field and all of them inflicted several dao injuries at his head, neck and leg etc and one of the accused Amam snatched the amount of Rs. 30,000/- from his possession. Referring to witness Moinul/P.W. 3 and Sahahuddin/P.W. 4 it has been stated they were proceeding behind him and they also saw the occurrence and at that time one bus with passenger arrived and the accused fled away. His brother Sirajuddin/P.W. 2 arrived after about an ½ hour and found him lying in the paddy field and took him to the Algapur P.H.C. and thereafter, he was sent to Silchar Medical College for treatment wherein he continued his treatment as 1 ½ years and his treatment is still continuing and he is not in a position to stand and walk properly, till now. 8]. In query to the defence suggestion he has replied that he has not disclosed all details before the police that he was proceeding in a bicycle, saw the accused by the side of the road etc. etc. 8]. In query to the defence suggestion he has replied that he has not disclosed all details before the police that he was proceeding in a bicycle, saw the accused by the side of the road etc. etc. as police did not ask him about the details of the occurrence. He has specifically replied in cross examination that he had no contract work in his name but was doing as a sub contractor under the contractor Shajal, Rajkumar, Bappa and Debu. He has denied the suggestion that due to his bad character he entered into the house of Manik Roy wherein he was beaten badly for which he sustained injuries. 9]. As we found from the evidence of P.W. 2 that on the day of occurrence while he was proceeding towards Narainpur market on his auto-rickshaw then he saw the gathering of the people on the road and also saw the accused persons running away from the place of occurrence with a dao in their hands. Thereafter, he went ahead and found his brother lying near the paddy field with multiple injuries on his person. On being enquired his brother implicated all the accused persons for causing the injuries upon him. He took the injured to the Algapur Police station and thereafter to Algapur P.H.C. for treatment but the injured was sent to Silchar Medical College and in his cross examination he has referred about the Deluxe bus parked in the place of occurrence and though he did not saw the accused while inflicting injuries but he saw them running from the place of occurrence. 10]. Let us turn to the evidence of the other two witnesses who are stated to be eye witness to the occurrence. So far their testimony it has been found that both of them were going behind the P.W. 1 in their bicycle and they found the accused persons while inflicting dao blows upon the P.W. 1 on the leg and hands and also the fact that the accused persons dragged away P.W.1 to nearby paddy field and inflicted some more injuries on the PW. 1 and on being threatened by the accused persons they could not succeed to help the injured. 1 and on being threatened by the accused persons they could not succeed to help the injured. The evidence is also on the point that as a Deluxe Bus arrived at the place of occurrence the accused persons fled away and the injured was lying in the paddy field with severe injuries on his person and after some time the PW. 2 Arrived in his own auto rickshaw who took the injured in his auto rickshaw. It has also been stated that there was no residential house near the place of occurrence. Now, both the witnesses were cross examined at length on the point that they did not state before the I.O. all details of the facts as has been stated before the Court that they were proceeding in a bicycle that they saw the accused persons sitting nearby the road armed with dao, that the accused dealt dao blows on the PW. 1 while he was proceeding on a bicycle then he fell down thereafter, injured PW. 1 was dragged by the accused to the nearby paddy field, that they saw Deluxe Bus reach to the place of occurrence and all such suggestion has been denied by the witnesses. Now, the investigating Officer/PW. 6 has stated that these two witnesses did not state before him as narrated before the Court and according to the defence side as the I.O. has contradicted the evidence of two eye witnesses so their evidence is not reliable. On the next I.O. has also stated that the injured was directly taken to Silchar Medical College not to the Police Station, so, it has been pointed out by the learned counsel for the appellants that the evidence of the informant as well as injured is not tallied by the I.O, so their testimony lacks crediability. 11]. In pursuance of the submission so made by the learned defence counsel I have given my anxious look to the statement of the witnesses so made before the I.O. under Section 161 Cr.P.C., and that of trial before the Court and it is to be found that the I.O. has recorded the statement of the witnesses in cryptic manner and not in elaborate way. However, it is found that these witnesses are stated to be eye witness to the occurrence and it is on the part of the I.O. as to how he has recorded the statement. However, it is found that these witnesses are stated to be eye witness to the occurrence and it is on the part of the I.O. as to how he has recorded the statement. We are all familiar about the affairs by the I.O. while conducting the investigation, they generally recorded the statement not in detail manner and it is like gist of the occurrence. The witnesses in their evidence have stated before the Court the details of the occurrence which was not stated before the i.O. as it was not asked for by police. As we know, the people generally scared of police and hesitate to speak unless called for, this is happened in this case. 12]. Now, the facts remains that P.W. 3 & 4 are the eye witnesses to the occurrence but their statement is not recorded in a elaborate manner by the I.O. and they have seen all the matter of assault made by the accused person to the injured person P.W. 1. On the other hand, though, the defence has given certain suggestion that they have not stated in detail about certain facts that they were proceeding on a Bicycle etc., as mentioned above and same has also been stated by the I.O. that they have not narrated all these detail facts as stated before the Court, but it cannot be loss sight that defence no where claimed that P.W. 3 & P.W. 4 were not the eye witnesses to the occurrence. That being, so, we have nothing to hold that they were not the eye witnesses to the occurrence. The injured in his statement has also deposed that those witnesses were behind him at the time of occurrence and has saw the occurrence. On the other hand, those 4 accused persons were armed with dao etc., in their hands and seeing their conduct, these witnesses may not be able to interfere in to the matters and after a few while the P.W. 2 arrived and took the injured to the Hospital. Mere omission or contradiction on the facts that the witnesses PW. 1 & 2 have stated in their evidence that they went to the police at first and thereafter, they went to the Hospital which is not corroborated by the I.O. is not a ground to discard their evidence which is otherwise found trustworthy. Mere omission or contradiction on the facts that the witnesses PW. 1 & 2 have stated in their evidence that they went to the police at first and thereafter, they went to the Hospital which is not corroborated by the I.O. is not a ground to discard their evidence which is otherwise found trustworthy. The fact that the injured was not a contractor at the time of the occurrence is also not a false aspect as has been challenged by the learned counsel for the appellants because he has admitted that he was a sub-contractor under some other contractors. This aspect again does not implicate falsity of the allegation. 13]. As we found there surface nothing on record to indicate that these witnesses i.e. P.W. 3 & 4 or PW. 1 & 2 have any sort enmity with any of accused person. It will be out of human nature that one will falsely implicate other person with the offence and will allow the real culprit scot free. The accused persons who were appellant here could not hammer that they have been falsely implicated by this witnesses. As i have been already discussed the contradiction of these witnesses so far referred by the learned counsel for the appellants, this contradiction will not distructive to the prosecution case, so far, the matter discloses that they claim to be eye witnesses to the occurrence since beginning. 14]. Another pertinent aspect deserved consideration is that the statement of those two witnesses P.W. 3 & 4 was recorded by the I.O., immediately after the occurrence on the very same day of occurrence and their evidence as a whole remain un-reburted that they were the eye witnesses to the occurrence and in view of such matter, there is also no scope on their part for false implication of the accused persons. On the other hand, the injured was examined after few days of occurrence in the Hospital which also reflects that those witnesses were not tutored by the injured persons. 15]. The FIR was filed immediately after the occurrence without any delay which is also indicative of lack of fabrication of false story. As regards the another contention by the learned counsel for the appellants that as per the evidence of M.O., the injured was examined on police requisition, it was found baseless. 15]. The FIR was filed immediately after the occurrence without any delay which is also indicative of lack of fabrication of false story. As regards the another contention by the learned counsel for the appellants that as per the evidence of M.O., the injured was examined on police requisition, it was found baseless. As the M.O. has clearly stated in his evidence that the injured was produced before him by his relatives and after examination police sent requisition for collection of injury report. I found no any substance in the submission of the learned counsel for the appellants. 16]. I have also gone through the evidence of M.O./P.W. 5 who found the following injuries on the part of the injured person. (i) Incised wound 5 cm X 1 cm X 1 cm bone deep present over out her aspect of right elbow. (ii) Incised wound 5 cm X 2 cm X 1 cm present over left elbow bone deep. (iii) Incised wound 4 cm X 2 cm X 5 cm bone deep present over left zygomatic region of face. (iv) Lacerated wound 3 cm X 1 cm X cm present over anterior aspect of right thigh. (v) Incised wound 6 cm X 3 cm X 1 cm present over dorseen of right foot. (vi) Incised bevelled wound curved 7 cm X 4 cm x 2 cm bone –deep present over left leg Bone cut. Bleeding present (Active). (vii) Lacerated wound 6 cm X 1 cm X ½ cm present over dorseen of left foot. (viii) Lacerated wound 4 cm X ½ cm present around right knee. (ix) Swelling and tenderness of left arm. X-Ray findings: shown- (i) Fracture both bone (left) leg midshaft. (ii) Fracture both bone (right) leg midsheft. (iii) Fracture 1st, 2nd, 3rd, 5th metatarsal (right) foot. (iv) Fracture olicernant (right) elbow. (V) Fracture midshaft (left) humerus. The opinion of the doctor is that all injuries are grievous in nature and caused by means of a sharp weapon. 17]. The above mentioned medical reports also reflects the serious nature of injury was sustained by the PW. 1 and has corroborated the testimony given by the injured also. The evidence of the injured is that he is still undergoing treatment and he is not even in a position to stand/walk properly because of serious injuries. 17]. The above mentioned medical reports also reflects the serious nature of injury was sustained by the PW. 1 and has corroborated the testimony given by the injured also. The evidence of the injured is that he is still undergoing treatment and he is not even in a position to stand/walk properly because of serious injuries. It is to be noted that the Court has recorded his observation while recording the evidence of injured to the effect that he was produced before him in the official chamber lifting him by 2 other persons as the injured was not in a position to stand/walk and there are injuries over his body. This observation made by the Court is indeed is deserved consideration which reflects the impact of the injury inflicted upon the injured person. In fact, the life of the injured person has been handicapped for such injury sustained and in such view, the learned Court below has rightly appreciated the evidence on record and has arrived about guilt of the accused under Sections 326/34 IPC. 18] The accused being four in numbers being armed with sharp weapon has caused eight (8) grievous injuries on a single unarmed person, for which he is unable to pursue/enjoy normal life, which is a matter of serious concern. For the fracture mentioned by M.O, the injured made incapacitated and even unable to walk & stand properly and still undergoing treatment. The punishment so awarded by Court is found to be proportionate to crime they committed. 19]. There is absolutely no ground so raised by the appellants that trial Court has not urged for the evidence of one Manik Roy to decide the case. It was the plea of the defence that the injured sustained injuries while entering in to the house of one Manik Roy with bad intention wherein he was badly assaulted by the family members for which he sustained injuries, to which he denied. It was the duty of the defence/appellants to substantiate his plea by producing that fellow before the Court and it is not the duty of the Court to examine those persons to support the defence story. 20]. In fact, in this case, except plea of denial, defence could not scattered the evidence on record. It was the duty of the defence/appellants to substantiate his plea by producing that fellow before the Court and it is not the duty of the Court to examine those persons to support the defence story. 20]. In fact, in this case, except plea of denial, defence could not scattered the evidence on record. Mere omission here and there by the witnesses is apparent as the evidence was given after 2 years of the occurrence which is enough to fade the memory of a person. 21]. I find nothing to interfere into the impugned Judgment and order of the learned Court below. Accordingly, the impugned Judgment and order of the learned Court below is hereby up-held. However, it is seen that the Lower Court has not awarded any compensation to the victim/injured in terms of Section 357 (A) Cr.P.C. Accordingly, it is directed that the District Legal Service Authority will make an enquiry regarding the requirements of rehabilitation of injured/victim Sri Md. Abdul Manaf and award the compensation accordingly within 3 months from the date of receipt of copy of order. Send a copy of the order to Secretary, District Legal Service Authority, Hailkandi, for information and necessary action. 22]. The appeal being in devoid of merit, hence stands dismissed. 23]. Return the LCRs along with a copy of this order.