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2016 DIGILAW 851 (GAU)

Anam Uddin Mazarbhuiya v. State of Assam

2016-09-09

PARAN KUMAR PHUKAN

body2016
JUDGMENT AND ORDER : Paran Kumar Phukan, J. This appeal is directed against the judgment and order dated 28.04.2004 passed by the learned Sessions Judge, Hailakandi in Sessions Case No. 33/2001 convicting the accused appellants under Section 307 read with Section 34 IPC and sentencing them to Rigorous Imprisonment for 5 (five) years and to pay fine of Rs.5000/- each, in default, to imprisonment for another 6 (six) months. 2. The sum and substance of the prosecution case is that on 04.12.2000 at about 12.30 pm. the accused appellants along with some other persons armed with weapons attacked and assaulted one Sikandar Ali Barbhuiya, father of the informant, who was looking after the construction work in the newly purchased land situated near College Masjid by the side of the PWD road, as a result of which, he sustained grievious injuries and became unconscious. The informant who is the daughter of the injured, having come to know about the incident rushed to the spot from her house and saw her father lying in injured condition. He was immediately brought to Hailakandi Civil Hospital, wherefrom, he was referred to Silchar Medical College & Hospital for better management of the injuries where he had to remain admitted as indoor patient for about fourteen days. 3. The written FIR, Ext. 3 was lodged with the O/C, Hailakandi Police Station by the informant PW 3 on the very day of the occurrence on the basis of which a case was registered and on completion of investigation Charge-Sheet was submitted against the accused appellants under Sections 447, 323, 324, 325, 326, 307, 34 of the IPC. 4. The trial of the case commenced before the learned Sessions Judge, Hailakandi, after committal of the same. The accused appellants pleaded not guilty to the charges under Section 307 read with Section 34 of the IPC. The prosecution, to prove the Charge examined 6 witnesses including the Doctor and the Investigating Officer. The defence took the plea of alibi and in support of the plea, they examined one witness. 5. The learned Sessions Judge on the basis of the evidence on record held the accused appellants guilty under Section 307 read with Section 34 of the IPC and convicted and sentenced them accordingly as stated here in above. 6. Heard Mr. B.D. Konwar, learned senior counsel appearing for the accused appellants and Mr. 5. The learned Sessions Judge on the basis of the evidence on record held the accused appellants guilty under Section 307 read with Section 34 of the IPC and convicted and sentenced them accordingly as stated here in above. 6. Heard Mr. B.D. Konwar, learned senior counsel appearing for the accused appellants and Mr. B.J. Dutta, learned Additional Public Prosecutor, Assam. 7. Of the 6 witnesses examined by the prosecution, PW 1 Sikandar Ali Barbhuiya is the injured, PW 2 Maktar Ali Mazumdar and PW4 Karim Uddin Choudhury, are the independent eye witnesses to the occurrence, P W3 Nazi nun Nahar Barbhuiya is the daughter of the injured and the informant of the case, PW5 is the doctor who examined the injured in Silchar Medical College & Hospital and PW6 Himansu Chanda is the Investigating Officer of the case. 8. Mr. Konwar, learned Senior counsel submits that the independent eye witnesses PW2 and PW4 having been declared hostile by the prosecution, no reliance can be placed in their evidence. He further submits that PW1 and PW3 are interested witnesses and implicit reliance cannot be placed in their evidence. 9. Inviting my attention to the evidence of the doctor, Mr. Konwar, contends that no ingredient of offence under Section 307 IPC has been made out and the injured only sustained simple injuries caused by blunt object. 10. Controverting the submissions, Mr. B.J. Dutta, learned Additional Public Prosecutor, submits that even though, PW2 and PW4 have been declared hostile by the prosecution, there is no legal impediment to accept their evidence in the trial before being declared hostile by the prosecution. He further contends that relationship by itself is not a ground to reject the testimony of witnesses who are otherwise found reliable and trustworthy. So far the injuries are concerned, he submits that to bring home the offence under Section 307 IPC, the injuries sustained are not the only factor to be considered and intention of the accused is the gist of the offence. 11. In the backdrop of the aforesaid contentions, it is necessary to have an overview of the evidence on record. 12. PW 1 is the most important witness for the prosecution as he was the injured of the case. 11. In the backdrop of the aforesaid contentions, it is necessary to have an overview of the evidence on record. 12. PW 1 is the most important witness for the prosecution as he was the injured of the case. His evidence is that on the day of the occurrence in the noon time, while he was supervising the construction work of the showroom for the LPG gas agency of his daughter, situated near the college Masjid, over the land which was newly purchased by his daughter (PW3), the accused appellants along with four other persons armed with lathi, dao etc. entered into the land by climbing the wall constructed on the western side and attacked him and assaulted him with dao and lathi as a result of which he sustained grievious injuries and fell down and became unconscious. When he regained sense in the hospital, he saw his daughter and his two workers and narrated the incident to his daughter. He was referred to Silchar Medical College & Hospital for better management and according to him, he sustained fracture injuries and he had to remain as indoor patient for about 14 days. 13. In cross-examination, he admitted that there was land dispute with the accused appellants and there was also civil suits pending between them. Although, the accused appellants prayed for injunction before the Civil Court, but it was rejected. He denied the defence suggestion that some customers on that day chased him and when he tried to run away, he fell down and sustained injuries. 14. PW2 and PW4. although claimed to have seen the occurrence before police under Section 161 of the Cr.P.C., but during the trial they resiled from their earlier version given before police and consequently, they were declared hostile by the prosecution. Even though, they have been declared as hostile by the prosecution but both of them admitted that they were the masons engaged by P W1 for constructing the showroom and they were present at the time of the occurrence. Evidence of PW2 is that at about 12.30 p.m. when he came to the land with bamboos, he saw 5/6 persons assaulting PW1 as a result of which he became unconscious. His evidence also reveals that 2/3 other Jugalis were also present. He claims to have given the telephonic information to the daughter of the injured regarding the occurrence. Evidence of PW2 is that at about 12.30 p.m. when he came to the land with bamboos, he saw 5/6 persons assaulting PW1 as a result of which he became unconscious. His evidence also reveals that 2/3 other Jugalis were also present. He claims to have given the telephonic information to the daughter of the injured regarding the occurrence. He was present when the daughter came and took the injured to the hospital. In the hospital also he narrated the incident to the daughter of the injured. He also claims to be present when the injured informed his daughter that the accused appellants assaulted him causing injuries. In his evidence, he has not named the accused persons as the assailants, although, he talked about 5/6 persons assaulting the injured. Due to this reason, he was declared hostile by the prosecution and in cross-examination by the prosecution he denied that he disclosed the names of the accused appellants before police. This witness was recalled for further cross-examination and this time he categorically denied that he saw the occurrence and he only claims to have seen the injured lying in injured condition in an unconscious state and he came to know that some customers of LPG chased him as a result of which he fell down and sustained the injuries. 15. The evidence of PW2 to some extent reveals that on that day at about 12.30 pm, some incident of assault took place and PW 1 was injured. 16. Similarly, PW3 also deposed that on that very day he was engaged for constructing works as a mason by the injured and he was busy when incident took place. Although, he disclosed the names of the accused appellants in his statement under Section 161 Cr.P.C. but while adducing evidence in Court he totally resiled from his earlier version and stated that the injured was chased by 10/15 persons due to which he fell down and sustained injuries. But before being declared hostile he admitted that he was working in the construction site and some incident of assault took place in which PW1 was injured. 17. Mr. Dutta, learned Additional Public Prosecutor, contends that though PW2 and PW4 had turned hostile, yet their evidence cannot be totally discarded as it is well settled in law that the same can be relied upon by the prosecution as well as by the defence. 17. Mr. Dutta, learned Additional Public Prosecutor, contends that though PW2 and PW4 had turned hostile, yet their evidence cannot be totally discarded as it is well settled in law that the same can be relied upon by the prosecution as well as by the defence. It is urged by him that once the part of the testimony to the effect that they were working in the construction site as mason on being engaged by PW 1, the injured and that the injured sustained injuries and was taken to hospital for treatment is to be accepted. 18. It is well settled in law that the evidence of hostile witness is not to be rejected in to. In Rameshbhai Mohanbhai Koli & Ors. Vs. State of Gujarat, (2011) 11 SCC 111 , the Apex Court has stated thus:- "16. It is settled legal proposition that the evidence of a prosecution witness cannot be rejected in to merely because the prosecution chose to treat him as hostile and cross-examined him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent that their version is found to be dependable on a careful scrutiny thereof. (Vide Bhagwan Singh Vs. State of Haryana, Rabindra Kumar Dey Vs. State of Orissa, Syad Akbar Vs. State of Karnataka and Khujji Vs. State of M.P.)" 19. Recently in Bhajju @ Karan Singh Vs. State of Madhya Pradesh, (2012) 4 SCC 327 , the Apex Court in the context of consideration of the version of a hostile witness, has expressed thus:- "Normally, when a witness deposes contrary to the stand of the prosecution and his own statement recorded under Section 161 Cr.P.C., the prosecutor, with the permission of the Court, can pray to the Court for declaring that witness hostile and for granting leave to cross-examine the said witness. If such a permission is granted by the Court then the witness is subjected to cross-examination by the prosecutor as well as an opportunity is provided to the defence to cross-examine such witnesses, if he so desires. In other words, there is a limited examination-in-chief, cross-examination by the prosecutor and cross-examination by the counsel for the accused. It is admissible to use the examination-in-chief as well as the cross-examination of the said witness insofar as it supports the case of the prosecution." 20. In other words, there is a limited examination-in-chief, cross-examination by the prosecutor and cross-examination by the counsel for the accused. It is admissible to use the examination-in-chief as well as the cross-examination of the said witness insofar as it supports the case of the prosecution." 20. Keeping in view the observations of the Apex Court and also considering the evidence of PW2 and PW4, who have been declared hostile by the prosecution, what I have found is that an incident of assault took place on the day of the occurrence at about 12.30 pm and PW1 was injured due to the assault. 21. Next important witness examined by the prosecution is PW3 who is the daughter of the injured. Admittedly, she had not seen the actual occurrence and she came to the spot after receiving information from her worker that her father was assaulted by the accused appellants and he was lying in injured condition. She rushed to the spot and saw her father and immediately took him to the Hailakandi Civil Hospital for treatment. It is in her evidence that in the hospital, her father disclosed that the accused appellants assaulted him. She corroborated the testimony of her father in this important aspect of the case. She lodged the FIR soon thereafter and in the FIR, the date, time and manner of commission of the crime has been clearly spelt out and there is nothing to suspect embellishment or after thought. Although, a few hours delay was there in filing the FIR but it can reasonably be presumed that she was busy in the treatment of her father. He was referred to the Silchar Medical College and due to this reason there was delay in filing the FIR before police. Her evidence also reveals that there was litigation pending between her and the accused appellants and she purchased a land near the house of the accused appellants for construction of the showroom of her LPG Agency which annoyed the accused appellants as the construction was likely to cause some inconvenience to the accused appellants to go to their house from the main road. 22. The injured was examined in the Silchar Medical College by PW5 Pinak Pani Dhar and he noticed a number of injuries on his person and on examination, he found the following injuries:- “1. 22. The injured was examined in the Silchar Medical College by PW5 Pinak Pani Dhar and he noticed a number of injuries on his person and on examination, he found the following injuries:- “1. Sharp wound over the right temporal Region of skull-measuring 7cm X 2.5 cm X 2.5 cm, size. X-Ray of the skull did not reveal any abnormality. Injury caused by sharp weapon, simple and fresh. 2. Sharp cut injury over the lateral aspect of lower end of right arm. X-ray of right elbow shows fracture of lateral condyle. Weapons-sharp, grievous, fresh. 3. Swelling and tenderness over the lower part of left arm with abnormal mobility and echymosis. X-ray shows supra condyle fracture. Weapons-blunt nature grievious, fresh. 4. Abrasion of both knee, 5cm X .5 cm X .5 cm and bruises over the left buttock. Weapon used blunt, simple, fresh. He proved the injury report Ext.4.” 23. From the evidence of the doctor, there is no doubt that the injured sustained simple injury caused by sharp as well as blunt object and there was fracture of lateral condyle of the right humerus as well as fracture of the supra condyle which were confirmed by X-Ray reports. The doctor came to the findings on the basis of the clinical examination and the radiological reports and there is no room for doubt regarding the injuries sustained by the injured. Defence could not elicit anything of importance from him in cross-examination and it was not even suggested to him that the injuries might have been caused due to fall. When the accused appellants pleaded that the injured sustained injuries by falling, on being chased by some customers of LPG, question could have been pointedly asked to the doctor as to whether those injuries could have been caused due to fall but that was not done which belies the version that the injuries were caused by falling on the PWD road. 24. The prosecution also examined the Investigating Officer as PW6. During investigation, he visited the place of occurrence, drew up a sketch map, examined the witnesses including the injured, who was examined in the Silchar Medical College after a few days. He also collected the injury report from the injured and on completion of investigation, he submitted Charge-Sheet against the accused appellants. During investigation, he visited the place of occurrence, drew up a sketch map, examined the witnesses including the injured, who was examined in the Silchar Medical College after a few days. He also collected the injury report from the injured and on completion of investigation, he submitted Charge-Sheet against the accused appellants. His evidence also disclosed that he made several attempts to arrest the accused persons but they were not found at home. He raided the residence of the accused appellants thrice but they were not found and later on they were arrested from different places. This conduct of the accused appellants absconding after the incident indicates their involvement in the commission of the crime. The Investigating Officer also proved the contradictions in the evidence of PW2 and PW4 who were declared hostile by the prosecution. Although, they stated before the Investigating Officer that they saw the accused appellants causing injuries to the injured but subsequently, while adducing evidence in Court they resiled but their evidence to some extent proved that an occurrence took place and PW 1 was injured in the said incident. I have not noticed any major or noticeable error or defect in the process of investigation of the case. 25. The plea of alibi taken by the accused appellants that at the time of occurrence one was in the Court and another one was at Udharbond under Cachar District is difficult to believe. The distance between the place of occurrence and the Court is less than V2 kilometer and the accused appellant Anam Uddin failed to prove that he was in the Court at the time of the occurrence. Considering the distance, he had all the time to come to the place of occurrence, commit the crime and then again go back to the Court. It is not established that throughout the day, he was in the Court and consequently, the plea taken by him fails. The other accused appellant claimed to be at Udharbond in Cahcar District and to prove the plea, he produced a record of C.R. Case No. 136/2001 with reference to Udharbond PS. Non FIR Case No. 8/2000. What was sought to be proved was that at that time he was in Udharbond in his vehicle and was involved in the motor vehicle accident case for which the case was registered against him. Non FIR Case No. 8/2000. What was sought to be proved was that at that time he was in Udharbond in his vehicle and was involved in the motor vehicle accident case for which the case was registered against him. But the records reveal that the concerned vehicle No. WBX-1644 was out of order and was not in running condition since 1995 and the accused appellant Nur Uddin in a petition filed in that case admitted that he did not know driving. A futile attempt was made by the accused appellant to show that he was in Udharbond on that day but he failed to prove that plea. 26. Moreover, the certified copy of the order Ext. 3 reveals that he was sentenced to pay fine by the Court in the Non FIR case but that would not prove that he was driving the vehicle on the day of the occurrence. In motor vehicle cases, for the fault of the driver even the owner is also held liable and there is nothing to show that on the day of the occurrence he was in Udharbond. He appeared before the Court only on 24.07.2001 to pay fine and on that very day, he was held guilty by the Court. That apart, he also failed to prove that he was in school on that particular day even though he took the plea during the trial of the case. 27. The learned Sessions Judge on careful scrutiny of the evidence rightly came to the finding that the accused appellants failed to prove the plea of alibi and I do not find any reason after going through the evidence to interfere with the said finding. 28. The learned counsel for the accused appellants strenuously contended to convince me that no offence under Section 307 of the IPC has been made out. To bring home the offence under Section 307 IPC, it must be proved by the prosecution that there was intention or knowledge on the part of the accused to commit murder. The injured sustained fracture injuries on both his kinds and simple injury on his head. Had there been any intention on their part to commit the murder, they could have inflicted more serious injuries to the injured but they refrained from doing so. The injured sustained fracture injuries on both his kinds and simple injury on his head. Had there been any intention on their part to commit the murder, they could have inflicted more serious injuries to the injured but they refrained from doing so. None of the injuries sustained could have caused death of the injured and prosecution also failed to prove that there was intention on the part of the accused appellants to cause his death. 29. In Sagayan Vs. State of Karnataka reported in AIR 2000 SC 2161 , the Apex Court observed as follows:- "To justify conviction under Section 307 IPC, it is not essential that bodily injury capable of causing death should have been inflicted. An attempt in order to be criminal need not be the penultimate act foreboding death. It is sufficient in law if there is present an intent coupled with some overt act in execution thereof, such act being proximate to the crime intended and if the attempt has gone so far that it would have been complete but for the extraneous intervention which frustrated its consummation. There are different stages in a crime. First, the intention to commit it; second, the preparation to commit it; third, an attempt to commit it. If at the third stage, the attempt fails, the crime is not complete but the law punishes for attempting the same. An attempt to commit crime must be distinguished from an intent to commit it or preparation of its commission." 30. In the instant case, the injured only sustained simple injuries on the parietal Region over his head caused by sharp weapon and there was fracture of both hands. From the nature of the attack and assault, it cannot be said with certainty that the accused appellants had the intention to cause death of the injured and if they intended to do so they could have inflicted more severe injuries but that was not done and the only conclusion which can be inferred from the facts and circumstances of the case is that their intention was only to cause injury to the injured and not death as claimed by the prosecution. 31. The injured. 31. The injured. PW1 in his evidence, has categorically stated that the accused appellants caused injuries to him with dao and lathi or rod for which he had to remain in the Silchar Medical College for about two weeks as an indoor patient. 32. From the evidence on record, more particularly, the injury report, it is found that PW 1 sustained simple injuries on the parietal region caused by sharp weapon and fracture injuries of both his hands caused by blunt objects and those were grievious in nature. Although, the learned Sessions Judge convicted the accused appellants under Section 307 read with Section 34 of the Indian Penal Code but on careful scrutiny of the evidence, it is found that the accused appellants in fact committed the offences under Sections 324, 325 read with Section 34 of the IPC. Consequently, the conviction of the accused appellants under Section 307 read with Section 34 of the IPC is set aside and instead the accused appellants are found guilty under Sections 324, 325, 34 of the IPC and they are accordingly convicted under the said Sections. 33. While considering the quantum of sentence to be passed against them, it is found that the offence was committed in the year 2000 and more than 15 years have elapsed from the date of commission of the crime. The accused appellants are relatives of the injured and the informant and they are neighbours. This is the first offence of the accused appellants. One of the accused appellant is a teacher and the other one is a vendor in the Court. Both are above 50 years of age at present and in my considered view, no fruitful purpose would be served by sending them to jail at this stage. 34. Having regard to the facts and circumstances of the case, the relationship between the injured and the accused appellants and their age, antecedent etc., I am of the considered view that justice would be met if they are sentenced to undergo imprisonment for the term already undergone by them in jail in connection with the case. In addition, they are also sentenced to pay fine of Rs. 1000/- each under Section 324 IPC, in default, to imprisonment for 1 (one) month and to pay fine of Rs.3000/- each under Section 325 IPC, in default, to imprisonment for 3 (three) months. In addition, they are also sentenced to pay fine of Rs. 1000/- each under Section 324 IPC, in default, to imprisonment for 1 (one) month and to pay fine of Rs.3000/- each under Section 325 IPC, in default, to imprisonment for 3 (three) months. The fine, if realized, shall be paid to the victim as compensation. 35. With the above modification of the sentence, the appeal is partly allowed. 36. Send down the LCR along with a copy of this judgment to the learned Court below for information and necessary action.