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2017 DIGILAW 907 (GAU)

Madan Saikia v. State of Assam

2017-07-13

HITESH KUMAR SARMA

body2017
JUDGMENT AND ORDER : The prosecution case is that, on 13.10.2003, the government had initiated an eviction drive of some shops, at Kalabari Center, and during the course of such eviction drive, the shop of one Babul Bhuyan was damaged to some extent. One Jiten Bhuyan and Ramesh Saikia guarded the shop of said Babul Bhuyan in view of the fact that several articles were there in the shop. At about 1:00 am, in the intervening night of 13.10.2003 and 14.10.2003, one Bhaba Saikia, along with 10/15 persons, armed with ‘dao’, ‘khukuri’, ‘lathi’ etc., attacked the shop of said Babul Bhuyan and assaulted Jiten Bhuyan and Ramesh Saikia by sharp weapon. The informant was informed about this by the neighbouring shop-keepers over telephone. He rushed to the place of occurrence and saw aforesaid Jiten Bhuyan and Ramesh Saikia were lying in a pool of blood. The attackers chased them also and then assaulted. Injured Jiten Bhuyan, Ramesh Saikia and Babul Bhuyan aforesaid were shifted to Guwahati for better medical treatment. Informant Rosheswar Bhuyan lodged the FIR, on the aforesaid facts, with the Hawajan Police Outpost. 2. The police, on receipt of the FIR of the above facts, registered the case, investigated into it, collected evidence, and finally, submitted charge-sheet against the accused person under Sections 148/149/326/325/307 IPC. 3. The learned Magistrate committed the case to the learned Sessions Judge for trial as the alleged offences included Sessions Triable offences. After exhausting the procedure, the learned trial court framed a formal charge against the accused/appellant under Sections 148/325/326/307/149 IPC. The accused/appellant and his co-accused pleaded innocence necessitating the trial of the case. After completion of the trial, the Additional Sessions Judge, vide his, judgment dated, passed in Sessions Case No. 237/2005, convicted the accused/appellant under Section 324 IPC, and sentenced him to rigorous imprisonment for 1 (one) year and a fine of Rs. 5,000/- (rupees five thousand) with a default clause. 4. I have heard learned counsel for the accused/appellant, Mr. K Sarma and also heard learned Additional PP for the state Mr. N J Dutta. 5. I have also scanned the evidence on record. 6. In view of the evidence on record, this court, is required to decide as to whether the accused/appellant caused injuries to injured Jiten Bhuyan, Ramesh Saikia, Babul Bhuyan and Roseswar Bhuyan. 7. K Sarma and also heard learned Additional PP for the state Mr. N J Dutta. 5. I have also scanned the evidence on record. 6. In view of the evidence on record, this court, is required to decide as to whether the accused/appellant caused injuries to injured Jiten Bhuyan, Ramesh Saikia, Babul Bhuyan and Roseswar Bhuyan. 7. On perusal of the judgment of the learned trial court, it appears that the learned trial court completely relies upon the evidence of PW8 for holding the accused/appellant is guilty of the commission of offence under Section 324 IPC. On perusal of the evidence, it is found that at the time of occurrence the accused/appellant Madan Saikia assaulted him on his head by means of a weapon. There is evidence led by him to suggest that injured Jiten Bhuyan was earlier assaulted by some persons, without naming who assaulted him. The other witnesses do not appear to have stated as to who caused the injuries on the person of the aforesaid Roseswar Saikia. Only the evidence on record to show that the accused/appellant assaulted the injured Roseswar Saikia is his own evidence as PW8. This fact has also been asserted by the PW8 in his cross-examination. 8. The learned counsel for the accused/appellant has also argued that there was a cross-case between the parties, and in the cross case also, vide judgment in GR Case No. 495/2003, the learned Additional Sessions Judge, convicted some of the persons, including Babul Bhuyan, son of the informant, was also convicted and was sentenced 1(one) year rigorous imprisonment with a fine of Rs. 5,000/- (rupees five thousand) with a default clause under Section 324 of the IPC. 9. It appears from the evidence on record that at the time of occurrence, there was a mutual fight between both the parties, i.e., the accused/appellant and other co-accused who were already acquitted by the learned Additional Sessions Judge, and the accused persons including the informant in the instant case in the GR Case, referred to above. There is an observation in paragraph-39 of the impugned judgment made by the learned Additional Sessions Judge that this was a case of group fighting and there was a mutual provocation and blows to each other. It was also observed that there was not a unilateral provocation and in such cases, one side could not be blamed. There is an observation in paragraph-39 of the impugned judgment made by the learned Additional Sessions Judge that this was a case of group fighting and there was a mutual provocation and blows to each other. It was also observed that there was not a unilateral provocation and in such cases, one side could not be blamed. Both the parties are more or less to be blamed. 10. On perusal of the trial court record including, the evidence of the witnesses, it does not appear that the learned trial court looked into the aspect as to who was the aggressor at the relevant point of time of the occurrence, whether it is the present accused/appellant or the informant side in spite of the fact that it was held to be a mutual fight between both the parties. Record also reveals that persons from both the parties got injuries. 11. The evidence of PW8 in the instant case was not corroborated by any of the other witnesses which was necessary, particularly, in view of the fact that the accused/appellant also got injuries at the time of occurrence. Ascertaining as to who was the aggressor is essential in the facts of the instant case as admittedly both the parties engaged in the fight resulting injuries to members of both the parties. 12. The position being as above, in the considered view of this court, the judgment impugned in this appeal, is found to be not based on the factual matrix of the case, and therefore, requires to be interfered with. 13. In the absence of any specific corroborative evidence to the effect that the accused/appellant was aggressor in the case and, particularly when he himself sustained injuries in the mutual fight between the parties, it cannot be safely held, beyond reasonable doubt, that he was the aggressor and assailant in respect of the injury sustained by the informant Roseswar Saikia. 14. That being so, the accused deserves to be acquitted on benefit of doubt. Accordingly, this court acquits him on benefit of doubt. The judgment of the learned trial court in Sessions Case No. 237/2005 is set aside. 15. The appeal is allowed. 16. Send down the LCR with the copy of this judgment.