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2017 DIGILAW 1170 (GAU)

Jiban Das Son of Dulal Das v. State of Assam

2017-08-25

HITESH KUMAR SARMA

body2017
JUDGMENT AND ORDER : 1. This Criminal Revision Petition, filed under Section 397/401 Cr.PC, praying for setting aside the judgment, dated 23.7.2016, passed by the learned Sub-Divisional Judicial Magistrate (Sadar), Lakhimpur, North Lakhimpur, in GR Case No. 440/2001, convicting and sentencing the revision petitioner to Simple Imprisonment for 2 years and fine of Rs. 1,000/-, in default of payment of fine, Simple Imprisonment for 2 months, under Section 326 IPC as well as the judgment, dated 17.1.2001, passed by the learned Sessions Judge, Lakhimpur, North Lakhimpur, in Criminal Appeal No. 5(2)/2006, upholding the order of conviction and reducing the substantive sentence of the revision petitioner from 2 years to 1 year and to pay a fine of Rs. 1,000/- and, in default, Simple Imprisonment for another 2 months. 2. I have heard Mr. S T Talukdar, learned counsel for the revision petitioner as well as Ms. S H Bora, learned Additional PP for the state. 3. The fact of the case is that, on 14.4.2001, at about 4:00/4:30 pm, while Sri Gopal Das, the elder brother of the informant, was coming back home after enjoying a “Bihu Husori” by riding a bicycle, the accused Indra Das and Purna Das, wrongfully restrained him on the road in front of the residence of the accused Indra Das, Then, accused Jiban Das came out of the house of the accused Indra Das, assaulted the accused Gopal Das with a ‘khukri’ causing grievous injuries on his shoulder, back and waist. The informant brought him to Bihpuria Hospital for medical treatment, wherefrom he was referred to Lakhimpur Civil Hospital for better treatment. 4. On the basis of the facts, the PW4, Robin Das, lodged the FIR with the Bihpuria Police Station. 5. On receipt of the FIR, Bihpuria Police Station registered a case, being No. 124/2001, under Sections 341/326/34 IPC, investigated into it, collected evidence, and finally, submitted charge-sheet against the three accused persons under the aforesaid sections of law. In the charge-sheet, accused Indra Das and Purna Das were shown absconder. 6. The learned trial court, after observing all necessary legal formalities, proceeded with the trial, and on conclusion of the trial, vide judgment dated 27.3.2006, acquitted the accused Indra Das and Purna Das, and convicted the present accused revision petitioner, as indicated above. 7. In the charge-sheet, accused Indra Das and Purna Das were shown absconder. 6. The learned trial court, after observing all necessary legal formalities, proceeded with the trial, and on conclusion of the trial, vide judgment dated 27.3.2006, acquitted the accused Indra Das and Purna Das, and convicted the present accused revision petitioner, as indicated above. 7. On appeal, preferred by the present revision petitioner, before the learned Sessions Judge, while the order of conviction recorded by the learned trial court was upheld, reduced the sentence as specifically stated above. 8. The learned trial court recorded the evidence of 6 (six) witnesses for prosecution and 2 (two) for the defence in this case. 9. Now, points for determination before this court are, whether the accused revision petitioner caused grievous injury to the person of the injured Gopal Das by means of sharp weapon, and, whether there is any illegality or impropriety in the judgment of the learned trial court as well as the learned appellant court of the Sessions Judge, in convicting and sentencing the accused revision petitioner. 10. For the decision of the above issues, I have scanned the evidence on record. 11. In this case, the injured Gopal Das is examined as PW2. He is heard saying in his evidence that on the date of occurrence, at about 4:00/4:30 pm, while he was coming alone, riding a bicycle, Indra Das, Purna Das (these two accused persons were acquitted by the trial court), stopped him there, and when he tried to run away, the present accused revision petitioner suddenly attacked him with a khukri. He has further deposed that the co-accused Indra Das earlier warned him that he would be attacked by accused Jiban Das, i.e. the present revision petitioner. The present revision petitioner gave a number of blows on his person, following which he fell down. Thereafter, he ran away and again fell down in the house one Kulen das in presence of some women there. The present accused revision petitioner followed him, entered into the house of Kulen Das, and again gave a blow on his waist, and then, fled away. According to him, aforesaid Kulen Das, Narayan Das, Dharmen Das and one Robin Das were present at the residence of Kulen Das at the time of occurrence. The present accused revision petitioner followed him, entered into the house of Kulen Das, and again gave a blow on his waist, and then, fled away. According to him, aforesaid Kulen Das, Narayan Das, Dharmen Das and one Robin Das were present at the residence of Kulen Das at the time of occurrence. He has also stated in his evidence that he was inflicted injuries with a khukri blow by the accused revision petitioner Jiban Das. In his cross-examination also, he is found to have stated that he saw a dao in the hand of the accused revision petitioner Jiban Das. There is no such cross-examination of this witness to assail his evidence that accused revision petitioner Jiban Das assaulted him with blows as well as caused injuries to his person with a khukri or dao, by whatever name it is called. PW5 is the doctor, who examined the injured/PW2 in the Bihpuria Primary Health Centre on the date of occurrence itself and found following injuries : (a) Incised would over the right shoulder joint, cutting soft tissues vessels and nerves and the head of the right HUMERUS completely. Size of the wound was 4”x3”x3”. There was active bleeding. The limb was in immobile. The PW5 had opined that the said injury was grievous in nature. And it was caused by sharp object. It was found as fresh injury. (b) Lacerated wound of having 1”x ½”x 1/2 “over the back, bleeding was found present. The doctor also opined that the injury No. 1 was simple in nature and caused by sharp object. PW5 also deposed that, one of two injuries, found in the person of the injured was grievous in nature, i.e. the one mentioned in serial No. 1 above. So, the evidence of the doctor and the evidence of the injured/PW2 taken together makes it appear that the injured sustained injuries with sharp cutting weapon and even blood was oozing out from the injuries at the time of examination by the doctor/PW5. PW3 has not deposed anything implicating the accused with the commission of the alleged offence and has not narrated anything about the occurrence. She has also no knowledge about the occurrence. PW3 has not deposed anything implicating the accused with the commission of the alleged offence and has not narrated anything about the occurrence. She has also no knowledge about the occurrence. PW4, Robin Das, who is the informant in the case, stated in his evidence that his brother/PW2 was injured by the accused revision petitioner while he was returning from Bihu function, after restraining him on the road, with a khukri on his arm, back of the body as well as on the waist. The injured ran away from the road to the house of one Kulen Das, and the accused revision petitioner also followed him and assaulted him there in the house of Kulen Das. Then PW4 and some others had brought the injured to the Bihpuria Civil Hospital for medical treatment. The evidence of PW2 makes it appear that Robin Das was present at the subsequent place of occurrence, i.e. the house of Kulen Das, which evidence is corroborated by the PW4 while he deposed that he was present in the house of aforesaid Kulen Das where the injured was further assaulted by the present accused revision petitioner. PW1 does not appear to have narrated about the occurrence as he was not present at the place of occurrence. However, he was informed by Dharmen Das that injured PW2 was lying in the residence of Kulen Das, but on receipt of the information, that PW2 was injured by the present revision petitioner Jiban Das, he was taken to Bihpuria Primary Health Centre, he noticed cut injuries on the person of the PW2. There was enmity between Gopal Das/PW2 and the accused revision petitioner and others is admitted in his evidence. PW6 is the Investigating Police Officer of the case who has narrated about various stages of investigation of the case including arresting of the accused revision petitioner as well as the submission of charge-sheet before the learned trial court. 12. It appears from such evidence that the accused revision petitioner Jiban Das assaulted PW2/injured and also caused injuries on his person with a sharp cutting weapon. The injured himself named the present accused revision petitioner as the person causing injuries on his person, which is supported by the evidence of PW4 and the medical evidence of the PW5. 12. It appears from such evidence that the accused revision petitioner Jiban Das assaulted PW2/injured and also caused injuries on his person with a sharp cutting weapon. The injured himself named the present accused revision petitioner as the person causing injuries on his person, which is supported by the evidence of PW4 and the medical evidence of the PW5. That being so, the prosecution is appears to have been able to prove the case beyond all reasonable doubt for commission of offence by the accused revision petitioner, and, therefore, the order recording the conviction, for the moment, does not appear to have suffered from any infirmity and any illegality. 13. However, in the foregoing paragraph, this court has stated that the prosecution has been able to prove the case “for the moment” as there is defence evidence to be discussed to see whether the defence has been able to disprove the prosecution case. 14. DW1 appears to have staged a story that the PW2/injured was drunk at the time of occurrence, and therefore, fell down in the house of Kulen Das, resulting in the injuries. DW2 also deposed that she smelt liquor in the mouth of injured/PW2 Gopal Das, thereby, she could suspect that he was drunk and, so fell down and sustained injuries. 15. Such evidence of the DW1 and DW2 does not inspire confidence of this court in view of the fact that immediately after the PW2 sustained injuries, he was taken to Bihpuria Primary Health Centre, and the doctor/PW5 examined him immediately after the occurrence. From the report of the doctor, PW5, it does not appear that the injured/PW2 consumed liquor at the relevant time of occurrence and that he was under the influence of liquor. The evidence, led by the DW1 and DW2, appears to have twisted the facts of the case as if the PW2 sustained injuries on fall in the house of one Kulen Das, without leading any evidence as to how he sustained the cut injuries. So, in the absence of evidence against the very specific evidence of the prosecution as regards injuries of the PW2, it cannot be held that the defence has been able to disprove the prosecution case nor could it probabalise the case as projected through DW1 and DW2. So, in the absence of evidence against the very specific evidence of the prosecution as regards injuries of the PW2, it cannot be held that the defence has been able to disprove the prosecution case nor could it probabalise the case as projected through DW1 and DW2. That being so, the judgment of conviction and sentence of the present accused revision petitioner does not suffer from any illegality and impropriety as the same is based on evidence on record. 16. Learned counsel for the revision petitioner has submitted that neither the learned trial court nor the learned appellate court of Sessions Judge granted the benefit of the Probation of Offenders Act to the accused revision petitioner. Extending the benefit of Probation of Offenders Act was not even considered by the learned courts below as is apparent from both the judgments. 17. This court has considered the facts and circumstances of the case that while the injured/PW2 was coming back home after enjoying a Bihu function, he was restrained on the road by two accused persons (who were acquitted) and the present revision petitioner, and then, present revision petitioner assaulted him there, and while he ran away, he followed him and further assaulted with a sharp cutting weapon in the house of Kulen Das. Such conduct on the part of the accused revision petitioner makes it appear that the occurrence did not take place suddenly, and rather, in a planned manner, he committed he offence. Therefore, in the considered view of this court, the accused petitioner is not entitled to the benefit of Probation of the Offenders Act. Whatever it may be, the learned counsel for the revision petitioner has submitted to deal with him leniently in respect of punishment. This court has already made it clear in the foregoing discussions that the accused revision petitioner is not entitled to the benefit of Probation of Offenders Act, in view of the fact that offence committed by them was a pre-planned one. The learned trial court of Sessions Judge, has already reduced the substantive punishment of the accused revision petitioner from 2 years to 1 year. The learned trial court of Sessions Judge, has already reduced the substantive punishment of the accused revision petitioner from 2 years to 1 year. But, considering the fact that the case is of year 2001 and finally disposed by the learned appellate court of Sessions Judge in 2007, and is pending before this court from 2007 till date, this court is of the view that some leniency should be shown to the accused revision petitioner in the matter of punishment. The learned counsel for the petitioner has submitted that the accused revision petitioner was 21 years of age at the time of occurrence. The record also reveals that he should be around 21 years of age at the time of occurrence. Considering the time consumed in completion of the trial by this court as well as the age of the accused revision petitioner, this court is of the view that he deserves leniency in respect of the punishment. Therefore, the substantive sentence, on the accused revision petitioner, is reduced to 4 months from 1 year and the fine is enhanced to Rs. 5,000/- from Rs. 1,000/-, in default, further 1 month Simple Imprisonment . 18. The period undergone by the revision petitioner in jail, during the investigation and trial, be set off against the substantive sentence. 19. The Criminal Revision Petition stands disposed of accordingly. 20. Return the LCR along with the copy of this order.