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2015 DIGILAW 993 (GAU)

Bikudar Nath v. State of Assam and Ors.

2015-08-10

PARAN KUMAR PHUKAN

body2015
1. Under assailment in this revision is the judgment and order dated 20.12.2004 passed by the learned Sessions Judge, Nagaon in Criminal Appeal No.42(N)2003 affirming the judgment of the learned Judicial Magistrate, Ist Class, Nagaon in G.R.Case No.246/2002 convicting the petitioner U/s. 392/34 IPC and sentencing them to suffer simple imprisonment for 2 years and to pay a fine of Rs.500/-, I.D. S.I. for 30 days. 2. Heard Mr. B.K.Mahajan, learned counsel for the petitioner. Also heard Mr. K.Munir, learned Addl. P.P.Assam, appearing for the State respondent. 3. I have gone through the impugned judgment. There has been concurrent finding of fact arrived at by the learned Courts below and ordinarily it is not open to the High Court to interfere in its revisional jurisdiction, unless it is shown that the evidence on record was misread or that it was not considered by the learned Courts below. 4. Mr. B.K.Mahajan, learned counsel appearing for the petitioner submits that no offence U/s. 392 IPC has been made out against the petitioner and the learned Courts below committed grave illegality by convicting the petitioner under the said section. It was strenuously argued that the petitioner did not take away Rs. 430/- from the informant as alleged. 5. Mr. K.Munir, learned Addl. P.P.Assam, on the other hand, submits that the evidence on record clearly shows that the petitioner assaulted the informant and robed Rs. 430/- from him. 6. In the backdrop of the aforesaid contention, I have gone through the evidence on record. The evidence of PW 1, namely, Sri Jagya Mohan Medhi (informant) is that at about 6 p.m. while he was returning home, he was assaulted by the accused/persons, namely, Brikodar and Jatin and they forcibly took away Rs. 430/- from him. His evidence is corroborated by the witness PW 2, Sri Lilaram Nath who arrived at the spot just after the occurrence. It is in his evidence that on his arrival, he saw the injured lying in the paddy field and he also noticed that the accused/persons leaving the place of occurrence. On being asked, the injured informed him that he was assaulted by the accused/persons. Although he has not seen the accused/petitioner, Sri Bikudar Nath assaulting PW 1 (informant), his evidence clearly established that the accused was running away from the place of occurrence and the victim was lying near the paddy field. 7. On being asked, the injured informed him that he was assaulted by the accused/persons. Although he has not seen the accused/petitioner, Sri Bikudar Nath assaulting PW 1 (informant), his evidence clearly established that the accused was running away from the place of occurrence and the victim was lying near the paddy field. 7. PW 3, Sri Jiten Medhi and PW 4, Sati Ranjita Medhi noticed the injuries on the person of the PW 1 and they came to know from PW 1 that he was assaulted by the accused/petitioner. 8. PW 5, Dr.Utpal Kumar Mahanta deposed that he had examined the victim two days after the date of occurrence and found swelling of face with black eyes. 9. PW 6, Sri Tarun Kalita (I.O) conducted investigation. Some omission and contradiction were sought to be introduced by defence but the omissions and contradictions are trivial in nature having no bearing on the veracity of the prosecution case. 10. There was some delay in filing the FIR before the Police , but it appears that the delay has been well explained. The injured was under treatment and due to this reason, he could not file FIR in time. I do not find any reason to suspect embellishment and after thought. All the prosecution witnesses are found to be reliable and trustworthy having no animus against the accused/petitioner and they have no reason to falsely implicate accused/petitioner in the case. 11. On careful perusal and appreciation of the entire evidence on record, there is no doubt that the accused/petitioner had assaulted the informant (PW 1) causing simple injury to him. Apart from PW 1 and his wife PW 4, there is no evidence that the accused/petitioners took away Rs. 430/- from PW 1 and on the basis of their testimonies, it is hazardous to come to the finding that robbery was committed by the accused/petitioners. The accused/persons were known to the informant and it is not believable that they would commit robbery. They must have assaulted the informant and as a result he sustained simple injury which brings the offence within the purview of Section 323 IPC. There is no legal impediment in convicting the accused/petitioners U/s. 323 IPC even though they have been charged U/s.392 of the IPC in view of Section 222(2) of the Cr.PC. 12. They must have assaulted the informant and as a result he sustained simple injury which brings the offence within the purview of Section 323 IPC. There is no legal impediment in convicting the accused/petitioners U/s. 323 IPC even though they have been charged U/s.392 of the IPC in view of Section 222(2) of the Cr.PC. 12. In State of Himachal Pradesh V. Tara Dutta, AIR 2000 SC 297 , the Hon'ble Apex Court held that - if an accused is charged of a major offence but is not found guilty thereunder, he can be convicted of minor offence, if the facts established indicate that such minor offence has been committed. 13. In the instant case, the accused/petitioners have been charged U/s. 392 IPC on the allegation that they assaulted the informant and took away Rs. 430/- from him. It has been established that accused/ petitioners assaulted the informant, but it is not established beyond all reasonable doubt that they took away Rs. 430/- from him. The evidence on record disclosed the commission of offence only U/s. 323 IPC, R/w. Sec. 34 IPC. Since the revision has been preferred by the petitioner, Sri Bikudar only, he is accordingly convicted under the said Section. 14. The offence was committed in the year 2002 and about 13 years have elapsed from the commission of the crime. No fruitful purpose would be served by sending him to jail at this stage. Considering all aspects of the matter, instead of sending him to jail, he is sentenced to pay fine of Rs. 500/- (Five hundred) in default , to simple imprisonment for 1(one) month. Fine if realize shall be paid to the victim. 15. The accused/petitioner is directed to appear before the learned Trial Court and deposit the fine within one month from the date of receipt of this judgment and order. 16. With the above observations and modifications, this revision petition is disposed of. 17. Send down the LCR forthwith along with a copy of this judgment and order.