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2018 DIGILAW 1350 (GAU)

Abul Malik Laskar v. State of Assam

2018-09-13

AJIT BORTHAKUR

body2018
JUDGMENT : Ajit Borthakur, J. Heard Ms. B Sarma, learned counsel for the convict/petitioner and Mr. BJ Dutta, learned Additional Public Prosecutor, Assam appearing for the State/respondent No. 1. Also heard Mr. MH Rajbarbhuiyan, learned counsel for the informant/respondent No. 2. 2. This revision petition under Section 397 read with Section 401 of the Cr.PC is directed against the judgment and order, dated 02.05.2009, passed by the learned Additional Sessions Judge, Fast Track Court, Cachar at Silchar in Criminal Appeal No. 05/2008, dismissing the appeal and upholding the judgment and order, dated 03.05.2008, passed by the learned Additional Chief Judicial Magistrate, Cachar at Silchar, in GR Case No. 2247/1999, whereby he is convicted and sentenced to undergo simple imprisonment for 1 month under Section 341 of the IPC and further, to undergo rigorous imprisonment for 2 (two) years with fine of Rs. 5,000/-, in default, to suffer simple imprisonment for another 3 (three) months under Section 326 of the IPC. 3. The petitioner's case, in a nutshell, is that on 23.07.1999, one Md. Saleh Ahmed Barbhuiya lodged an FIR before the officer-in-charge of Katigarah Police Station alleging that on 21.07.1999 at about 8:30 pm, the convict/petitioner wrongfully restrained his father Abdul Nasim Barbhuiya on the entrance road to his house and assaulted him with a 'bhujali' (a dagger like weapon) causing multiple injuries on his person. Based on the said FIR, Katigarah P.S. Case No. 215/1999 under Sections 341/326 of the IPC, dated 23.07.1999, was registered and after completion of investigation laid a charge-sheet against the petitioner under Sections 341/326 of the IPC. 4. On consideration of the materials on the case diary and hearing the learned counsel for both the sides, the learned Judicial Magistrate First Class, Cachar at Silchar framed charges as per charge-sheet vide order, dated 02.06.2001 passed in GR Case No. 2247/1999. The petitioner pleaded not guilty. The prosecution examined 7 (seven) witnesses and exhibited 3 (three) documents. After closing the evidence of the prosecution side, the statement under Section 313 of the Cr.PC was recorded. The petitioner pleaded not guilty and examined 2 (two) witnesses in defence. Thereafter, the learned Additional Chief Judicial Magistrate, Cachar at Silchar on appreciation of the evidence of both the sides and hearing, held the petitioner guilty of the charges and convicted as stated above vide the impugned judgment and order, dated 03.05.2008, passed in GR Case No. 2247/1999. The petitioner pleaded not guilty and examined 2 (two) witnesses in defence. Thereafter, the learned Additional Chief Judicial Magistrate, Cachar at Silchar on appreciation of the evidence of both the sides and hearing, held the petitioner guilty of the charges and convicted as stated above vide the impugned judgment and order, dated 03.05.2008, passed in GR Case No. 2247/1999. The petitioner preferred an appeal against the said judgment, before the court of learned Additional Sessions Judge, Fast Track Court, Cachar at Silchar, which stood dismissed vide the impugned judgment and order, dated 02.05.2009, passed in Criminal Appeal No. 05/2008. 5. Now, by the present revision, the convict/petitioner has assailed the legality, propriety and correctness of the above impugned judgments, interalia, on the grounds that he was convicted and sentenced on mis-appreciation of the evidence on record and failed to shift the evidence and glossed over the contradictions in the evidence of the prosecution witnesses. 6. Ms. B Sarma, learned counsel for the convict/petitioner submits that the nonofficial witnesses being relatives and interested witnesses, no credence could have been placed on their evidence. Ms. Sarma further submits that the evidence of PW2 to the effect that he saw the petitioner giving 'bhujali' blows to his father in the flash of a torch light from about 50/60 cubits away is contradicted by PW6, the Investigating Officer and this goes to the root of the whole matter. Ms. Sarma also submits that the prosecution failed to explain the inordinate delay in filing the FIR, which is fatal to the prosecution case and on the other hand, the learned trial court failed to record the statement of the petitioners. According to Ms. Sarma, the learned counsel for the convict/petitioner, the impugned judgments and orders are liable to be set aside, which were based on surmises and conjectures. 7. Per contra, Mr. BJ Dutta, learned Additional Public Prosecutor, Assam appearing for the State/respondent No. 1 submits that the place of occurrence was the entrance path of the injured and PW2 recognised the convict/petitioner in the flash of his torch light and his evidence is corroborated by PWs 3 and 4, who were also the eye-witnesses to the occurrence. 8. Mr. BJ Dutta, learned Additional Public Prosecutor, Assam appearing for the State/respondent No. 1 submits that the place of occurrence was the entrance path of the injured and PW2 recognised the convict/petitioner in the flash of his torch light and his evidence is corroborated by PWs 3 and 4, who were also the eye-witnesses to the occurrence. 8. Mr. M.H. Rajbarbhuiya, learned counsel for the respondent No. 2 submits that PWs 2, 3, 4 and 6, who witnessed the occurrence, implicated the convict/petitioner with the offences and they have withstood the test of cross-examination by the defence. The medical evidence of PW5 supports the evidence of eye-witnesses so far relating to the injuries. 9. I have given due consideration to the above arguments of the learned counsel for both the sides and have gone through the relevant records. 10. Perusal of the evidence of PW5, Dr Satyendra Kumar das, the doctor, who examined the injured PW1 Abdul Hasim Barbhuiya, on 22.07.1999, that is, on the following day of the occurrence, found the following injuries on his personi. One incised wound over the webs space left hand. Size -10cm x 2cm x 1cm cutting under lying muscles tendown and bone. ii. One incised wound over right arm Size-5cm x 2cm x 1cm. iii. One incised wound over right shoulder. Size 6cm x 2cm x 1 cm. According to him, the radiological examination revealedi. Fracture head and shift of right humerus. ii. Fracture head acromion process. iii. Fracture and metacarpel bone left hand. 11. In the opinion of the doctor (PW5), the injuries were fresh, grievous in nature and caused by sharp weapon. In cross-examination, the doctor, interalia, deposed that the injured was examined in the Emergency Ward of Silchar Medical College and Hospital and he was examined on police requisition. Thus, the defence has not disputed the injuries sustained by PW1, the injured, who was admitted on 22.07.1999. 12. Pw1 Abdul Hasim Barbhuiya, the injured, interalia, deposed that on 21.07.1999 at about 6:30 pm, when he was returning home from Katigarah Chowringhee Bazar, near TRK Road, the convict/petitioner alighted abruptly out of a bush and inflicted a blow on his shoulder with a 'bhujali'. When he attempted to hold the 'bhujali' with his left hand, his left hand got cut and the blow fell on his shoulder. When he attempted to hold the 'bhujali' with his left hand, his left hand got cut and the blow fell on his shoulder. When he started shouting, the convict/petitioner delivered 3/4 blows and as a result, he fell down to about 50/60 cubits away. On hearing his shout, PW4 Abdul Noor, who was passing by on his front, from the back-side, his son PW2, Saleh and PW3 Ajir Uddin and other villagers rushed to his rescue. On witnessing the people, the convict/petitioner fled away from the scene with the 'bhujali'. Thereafter, his son (PW2) and other villagers brought him to Katigarah Police Station and therefrom, he was shifted to Kalain PHC for treatment for a month. As he was in the Hospital, his son (PW2) lodged the FIR after two days of the incident. Sustaining injuries, his both left hand and right hand shoulders became useless. 13. In cross-examination, the defence, interalia, elicited that the convict/petitioner is his close neighbour and he had no enmity with him. PW2 and PW4 reached first the place of occurrence and other witnesses, within about 1-1 minutes. The incident occurred on Rajanpur Katigarah PWD Road. 14. Pw2 Saleh Ahmed Barbhuiya, the son of the injured (PW1) and PW4 Abdul Noor, the brother of the injured (PW1) deposed to have rushed to the place of occurrence hearing the hue and cry of PW1 and saw the convict/petitioner inflicting 'bhujali' blows on the person of him. At the relevant time of the said incident PW2 was 50/60 cubits away from the place of occurrence and he saw the convict/petitioner delivering 'bhujali' blows to the person of his father (PW1) in the flash of a 3 battery torch light. They (PW2 and PW4) witnessing the incident raised alarm and hearing the alarm of all of them (PWs 1, 2 and 4), the villagers also rushed to the place of occurrence and witnessing their approach, the convict/petitioner fled away from the place of occurrence. PW3 Ajir Uddin, who is the maternal uncle of PW1 (the injured) did not witness the actual occurrence of assault, but hearing hue and cry, he, who was returning home after marketing, rushed to the place of occurrence and found the convict/petitioner running away and PW4 shouting and further, PW1 lying on the ground in mud and blood oozing out of his body. PW1 was brought on the road and he was cleaned with water and thereafter, seeing profuse bleeding as he fell ill, left for home. 15. Coming to the evidence of PW6, ASI Abdul Matin Talukdar, the Investigating Officer, it is seen that the incident was reported at Katigarah P.S., after the incident on 21.07.1999 and as the informant and the villagers produced the injured at the police station, he was sent to Kalain PHC for medical examination and therefrom, considering the serious condition of the injured, the doctor referred him to Silchar Medical College and Hospital for treatment. Accordingly, GD Entry was made by PW7 Nasimuddin vide, GD Entry No. 565, dated 21.07.1999 at 3:30 pm, but not exhibited in the case. However, as PW5, the doctor, deposed that he (PW1) was examined, on police requisition, failure to exhibit the relevant GD Entry does not create any doubt. On the other hand, PWs including PW1 (the injured), as stated earlier deposed to have shifted the injured PW1, after the incident, to Katigarah Police Station from where, he was sent for medical examination. 16. Perusal of the sketch map of the place of occurrence vide Ext. 2, reveals that the occurrence took place, on the side of Gobindapur Part-III, PWD Road, near the house of the injured which supports the evidence of PWs 1, 2, 3 and 4 and thus, there is no doubt regarding the said location of the place of occurrence. Therefore, the presence of PWs 2, 3 and 4 cannot be doubted at the place of occurrence, who hearing the alarm of PW1, the injured rushed to the place of occurrence and witnessed, as a whole, inflicting 'bhujali' blows to PW1 by the convict/petitioner herein, with whom he had no enmity before the said incident. It is well settled that the evidence of related witnesses cannot be discarded on the ground of relation, provided they are natural witnesses to the incident. PWs 2, 3 and 4 have withstood the tests of cross-examination in material particulars and the contradictions, cited by the convict/petitioner's side, appear to be insignificant in the light of their otherwise cogent and convincing evidence in material aspects of the case. PWs 2, 3 and 4 have withstood the tests of cross-examination in material particulars and the contradictions, cited by the convict/petitioner's side, appear to be insignificant in the light of their otherwise cogent and convincing evidence in material aspects of the case. Although during investigation, the police failed to recover and seize the weapon of offence 'bhujali' by reason of that only, does not render the prosecution case not believable, when the eye witnesses have tendered the positive evidence in this regard and further, the injuries are corroborated by PW5, the medical evidence, who termed the injuries sustained by PW2 as grievous and caused by sharp weapon. The multiple cut and fracture injuries were found to be deep to the bone which definitely comes within the definition of 'grievous hurt' specified in Section 320 Seventhly' and 'Eighthly' of the IPC. 17. Perusal of the statement of the convict/petitioner, recorded under Section 313 of the Cr.PC, it appears that he pleaded innocence and in its support, he examined himself as DW1 and DW2 Bhupesh Das. Their evidence show that at the relevant time of the occurrence, DW1 was at his garment shop situated at Katigorah. DW2, who was at Chowringhee Bazar, saw PW1, the injured being brought by a taxi, to be taken to the Katigarah Police Station. DW1, the convict/petitioner through his evidence introduced the fact of existence of land dispute with the family of PW1. However, in this regard, no documentary or oral evidence was adduced and as such, the possibility of his false implication cannot be ruled beyond any shadow of doubt, rather their evidence reinforced the oral testimony of the prosecution witnesses, as discussed above. The learned trial court appears to have elicited explanations from the convict/petitioner in his statement under Section 313 of the Cr.PC, on all the material incriminating evidence against him and therefore, no legal infirmity is noticed therein, which may be considered to be prejudicial against him. 18. Consequently, the appeal stands dismissed. 19. The convict/petitioner is directed to appear before the learned trial court to serve out the sentence in terms of the impugned judgment and order. Revision petition stands disposed of accordingly.