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2018 DIGILAW 1182 (GAU)

Goda Hasda v. State of Assam

2018-08-09

MIR ALFAZ ALI

body2018
JUDGMENT : MIR ALFAZ ALI, J. 1. Heard Dr. BN Gogoi, learned amicus curiae for the appellant in Crl.A.((J) 43/2017, Mr. S.K. Agarwal, learned amicus curiae for the appellant in Crl.A.(J) 44/2017 and Mr. A Tiwari, learned amicus curiae for the appellant in Crl.A.(J) 45/2017. Also heard Mr. D Das, learned Addl. PP, Assam. 2. All these appeals are directed against the judgment and order dated 08.03.2017, passed by learned Addl. Sessions Judge, Charaideo, Sonari in Sessions Case No.230(S-C)/2010. By the said judgment, learned Addl. Sessions Judge convicted all the three appellants under Sections 447/326/307/34 IPC. 3. The appellants were sentenced to imprisonment for 7 (seven) years under Section 326 IPC, imprisonment for 10 (ten) years under Section 307 IPC and imprisonment for 3 (three) months under Section 447 IPC, with varied amounts of fine. All the three appeals being against the common judgment of conviction and sentence, are taken up together for hearing and disposal by this common judgment. 4. As per the prosecution case, on 12.01.2009, at about 4.00 pm, when the victim, PW-2 went to visit his garden, all the three appellants came there armed with dao and mounted assault on him causing serious injuries. When his brother came there to rescue him, the accused persons chased him too. On the basis of the said FIR, police registered a case and commenced investigation. During the course of investigation, the injured was examined by PW-7, the doctor, who found the following injuries on the body of the victim. 1. Incised wound on the middle of the left arm with active bleeding 1044 cm. 2. Incised wound on the lateral aspect of right lower chest 622 cm upto the 12th rib. 3. Incised wound over the left partial region with involvement of the underlying bone (bone deep) 152 cm. 4. Lacerated injury over right middle finger 1 cm 5 cm size. 5. After completion of investigation, police submitted charge-sheet against all the three accused persons under Sections 447/326/307/34 IPC. Eight witnesses were examined by the prosecution and on appreciation of evidence, learned Addl. Sessions Judge convicted the appellants and awarded sentence as indicated above. 6. From the oral testimony of the prosecution witnesses, it appears that except the injured himself, there was no other eye witness of the occurrence. Eight witnesses were examined by the prosecution and on appreciation of evidence, learned Addl. Sessions Judge convicted the appellants and awarded sentence as indicated above. 6. From the oral testimony of the prosecution witnesses, it appears that except the injured himself, there was no other eye witness of the occurrence. Though Pw-1, the informant tried to project himself as eye witness, his evidence was belied by the injured (PW-2) himself, who had stated, that his brother did not witness the occurrence. PW-2 further stated that at the time of occurrence, except himself and the accused persons, no other person was present there. Therefore, basically the prosecution case hinges upon the oral testimony of the victim himself and the medical evidence of PW-7. 7. Pw-2, the injured deposed candidly that while he went to visit his garden, all the three appellants came armed with 'Kolom dao' and inflicted injury to him. He also stated that he tried to resist the attack and after receiving injury on his head he became senseless. From the trend of cross-examination, it appears that the defence also did not deny the occurrence. Though a fragile attempt was made by the appellants to set up a plea of self defence, no material could be brought on record to substantiate such plea. 8. The evidence of PW-2 the victim/injured, that the appellant inflicted him injury by 'Kolom dao' remained unblemished and unshaken. Such testimony of PW-2 was further reinforced by the medical evidence of PW-7 and the injury report Ex-4. There was no reason to discard the unshaken oral testimony of the injured, which also finds corroboration from the medical evidence. Thus the oral testimony of PW-2, the victim, along with medical evidence, clearly established that the appellants caused injury to the victims by sharp cutting weapons. 9. The doctor PW-7 in his cross-examination clearly stated that the injuries were not sufficient to endanger life. Though the accused/appellants were convicted under Section 326 IPC, from the medical evidence, it appears that the injuries sustained by the victim as indicate above, does not come within the purview of grievous hurt as defined by Section 320 IPC and as such, the conviction under Section 326 IPC cannot be sustained. 10. Clear evidence of the doctor was that the injuries were not severe enough, to endanger life. 10. Clear evidence of the doctor was that the injuries were not severe enough, to endanger life. Admittedly, there was no other person at the time of occurrence except the PW-2 and the appellants. PW-2 was thrashed by the appellants, who were also admittedly armed with weapon and they left the PW-2 after causing the injuries. Having regard to the nature of injuries inflicted to the victim and the fact that the appellants, left the place of occurrence, after having caused the injuries to the victim, which were evidently not sufficient to endanger human life, it is difficult to hold that the accused/appellants had any intention to kill the victim. It is no doubt true, that the gravity of the injury may not always be relevant to attract the provision of Section 307 IPC, rather, it is the intention or knowledge of the perpetrator, which is of utmost importance. In order to convict a person under Section 307 IPC, the prosecution has to prove all the ingredients of offence under Section 300 IPC, except death. Apparently, the injuries were not of serious nature and it was also evident, that after causing such injuries, the appellants left the place, which clearly indicated the absence of any intention to cause death to the victim. From the nature of injury also it is difficult to attribute the knowledge or intention to cause such injury as is likely to cause death. Admittedly there was boundary dispute between the parties and the occurrence took place due to such dispute relating to the boundary of the land. In any view of the matter, from the nature of injuries and the attending facts and circumstance of the case as indicated above, the intention to cause death or intention to cause such injury as is likely to cause death, or the knowledge that such injury may cause death could not be attributed to the appellants. Therefore, I am of the considered view that the conviction of the accused/appellant under Section 307 IPC is also not sustainable. 11. Be that as it may, the evidence brought on record as indicated above having established beyond reasonable doubt that the appellants caused hurt to the victim by sharp cutting weapon, an offence under Section 324 IPC has been clearly established. 11. Be that as it may, the evidence brought on record as indicated above having established beyond reasonable doubt that the appellants caused hurt to the victim by sharp cutting weapon, an offence under Section 324 IPC has been clearly established. So far the conviction under Section 447 IPC is concerned, it was stated in the FIR, that the occurrence took place in the garden of the victim and PW-4 deposed that he had seen the appellants coming out from the garden of the PW-2 and also found PW-2 lying in his garden with injuries. Such evidence clearly indicated that the occurrence took place at the own land of the victim and therefore, the conviction under Section 447 IPC cannot be faulted. Accordingly the conviction of the accused/appellants are modified from Section 307/326/34 IPC to Section 324/447 IPC. 12. Evidently, the appellants have been in jail for 1 years. Having regard to the nature of offence and the facts and circumstances under which the offence was committed, I am of the view that the imprisonment for the period, which the appellants have already undergone in jail during the time of investigation and trial, as well as after judgment, would meet the ends of justice. Accordingly, the substantive sentence of imprisonment for both the offences is reduced to the period which the appellants have already undergone. They are also sentenced to pay a fine of Rs. 2,000/- each and in default to simple imprisonment for 1 (one) month. The appellants shall be released on payment of fine, if not required in any other case. 13. All the appeals stand partly allowed. 14. Appreciating the assistance rendered by Dr. BN Gogoi, Mr. SK Agarwal and Mr. A Tiwari, learned Amicus Curiaes, I hereby provide that they will be entitled to fees, as Legal Aid Counsel as per the norms fixed by the Legal Services Authority Regulation. Upon production of a copy of this judgment, Guwahati High Court Legal Services Committee shall pay the fees to Dr. BN Gogoi, Mr. SK Agarwal and Mr. A Tiwari. 15. Send back the LCRs.