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2017 DIGILAW 1157 (GAU)

Jamal Sk, Son of Kader Ali v. State of Assan

2017-08-24

HITESH KUMAR SARMA

body2017
JUDGMENT & ORDER : 1. This Criminal Revision Petition is filed against the judgment and order dated 13.06.2006 passed by the Judicial Magistrate, First Class, Dhubri in GR Case (SSM) No. 42/2003 convicting the accused petitioner under Sections 323/447/341/34 of the IPC to suffer Simple Imprisonment for 3 (three) months and fine of Rs. 500/- on each count. Against the judgment and order aforesaid, an appeal was preferred before the learned Sessions Judge, Dhurbi. In the appeal, the accused petitioner was sentenced under Sections 324/34 of the IPC, to Simple Imprisonment for 3 (three) months and a fine of Rs, 500/-, and in default to suffer Simple Imprisonment for 1 (one) month under Sections 323/34 of the IPC. Both the sentences are to run concurrently. 2. None appears for the petitioner on repeated calls. Heard Ms. SH Bora, learned Additional Public Prosecutor, appears for the State of Assam. Therefore, the case is taken up for disposal after perusal of the records of the learned Trial Court including the evidence as well as the revision petition and the grounds taken therein. 3. The case of the prosecution is that on 18.03.2003, while the son of the PW1, i.e., the PW2 Hanif Ali was in the agricultural land ploughing the land by the power tiller, the accused petitioner appeared there and enquired from him as to why he was ploughing the land, and then, the accused petitioner suddenly assaulted him with a dagger injuring him on his ear, back and head along with other co-accused Kader Ali. 4. On the basis of the above facts, the informant/PW1, who is the father of the PW2, lodged the FIR with South Salmara Police Station, which registered a South Salmara PS Case No. 42/2003 under Sections 447/341/325/326/34 of the IPC, investigated into it, collected evidence, arrested the accused petitioner, examined the injured by the Doctor, and thereafter, on completion of the investigation, submitted Charge-Sheet against the petitioner under Sections 447/341/323/34 of the IPC and retained the conviction under Sections 324/323 IPC although reduced the sentence. 5. For the decision of the issue, whether the accused petitioner assaulted the injured/PW2 with sharp cutting weapon causing injuries to his persons and as to whether he has assaulted the PW2/the injured attracting the provisions of Sections 324/323/34 of the IPC is required to be decided in this case on the basis of the evidence on record. 6. 5. For the decision of the issue, whether the accused petitioner assaulted the injured/PW2 with sharp cutting weapon causing injuries to his persons and as to whether he has assaulted the PW2/the injured attracting the provisions of Sections 324/323/34 of the IPC is required to be decided in this case on the basis of the evidence on record. 6. In this case, the prosecution examined as many as 7 (seven) witnesses, including the Doctor and the Investigating Police Officer. 7. The PW1 is the informant as well as the father of the injured PW2. It appears from his evidence that he was ploughing the land involved in this case with a power tiller taken on hire and after ploughing the land he left for his house and he sent his son for smoothing the land by use of Moi. At that time, the accused petitioner appeared there, enquired from him as to why he was smoothing the land with the Moi and then assaulted him as stated in the FIR, and also as indicated above, causing injuries to his person. 8. PW2, who himself is the injured, stated that he was assaulted with a dagger in the ear, back and hand by the accused petitioner and also assaulted otherwise. Admittedly, he deposed that there was no other witness at the place of occurrence. But, the PW3 was also ploughing his land in the adjacent plot of the land while the injured was ploughing, saw the occurrence from a little distance and he named the accused petitioner as the person assaulting the injured. 9. PW4 is the witness whose power tiller was hired by the injured and his father for ploughing the land and he also deposed that he saw the accused petitioner causing injuries to the person of the injured, i.e., PW2. 10. So it appears from the evidence of PW3 and PW4 that although the PW2 stated that none was there in the place of occurrence, yet PW3 and PW4 appears to have stated that the accused petitioner assaulted PW2 which they saw. 11. PW5 also saw the occurrence as stated in his evidence. 12. The medical report of injury is exhibited by the Doctor, who is examined as PW6. 11. PW5 also saw the occurrence as stated in his evidence. 12. The medical report of injury is exhibited by the Doctor, who is examined as PW6. From his evidence, it appears that he found incised wound 4cm X 1cm X 1cm over the middle of the left forearm, incised wound 2½cm X 1/2cm X 1cm over the auderal aspect on the left hand and he also found lacerated wound and also a further incised in the person of PW2. The injuries were fresh. 13. It appears from the evidence of the witnesses, particularly the evidence of the PW2, that he was assaulted and injured by the accused persons, more particularly the accused petitioner, and in cross-examination of this witness defense could not discredit him. In fact, on the vital point of causing injuries by the accused petitioner there is no cross-examination. 14. In the facts and circumstances of the case, this Court has no alternative but to rely upon the evidence of PW2/the injured, and in fact, in the instant case, going by the facts and circumstances of the case, the evidence of the PW2 is the most reliable evidence. As regard the facts leading to the occurrence and evidence of PW1 and PW2 remains consistent on material point. 15. PW3, PW4 and PW5 although deposed that they saw the occurrence, yet if we believe the evidence of PW2 they could not have seen the occurrence. However, the evidence of PW3 and PW4, inspite of the evidence of PW2, appears to be reliable for the reason that what the PW2 said was that none was present at the place of occurrence, but, the PW3 said that he saw the occurrence from a little distance as he was ploughing his own land in the adjacent plot where the occurrence took place. 16. PW4 is the person whose power tiller was hired for ploughing the land by the father of the injured PW2 and as such as being the owner of the power tiller, might be there otherwise. There is no evidence that the power tiller was driven by the informant/PW1 or injured/PW2. It might have been driven by someone from the side of the owner and he should be the PW4 in this case. 17. There is no evidence that the power tiller was driven by the informant/PW1 or injured/PW2. It might have been driven by someone from the side of the owner and he should be the PW4 in this case. 17. In view of such consistent and corroborative evidence, as referred to above, the order passed by the learned Courts Below convicting the accused petitioner does not require interference being based on proper appreciation of evidence. However, so far the sentence is concerned, this Court is of the view that substantive sentence of punishment of 3 (three) months under Section 324 of the IPC can be reduced to 1 (one) month with a fine of Rs. 1,000/-, and in default to suffer Simple Imprisonment for 7 (seven) days and also Simple Imprisonment for 1 (one) month with a fine of Rs. 300/-, in default of payment of fine, Simple Imprisonment for a period of 7 (seven) days under Sections 323 of the IPC will meet the ends of justice, considering the fact that this is an old pending case of the year 2003 and the revision petition is pending before this Court since 2006. 18. Accordingly, order of conviction is upheld and the sentence imposed upon the accused petitioner under Sections 324/323 of the IPC is reduced as aforesaid. Both the sentences will run concurrently. 19. Accordingly, the present Criminal Revision Petition is partly allowed. 20. Send down the LCR along with the copy of this judgment.