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2018 DIGILAW 1563 (GAU)

MANIK ALI v. STATE OF ASSAM

2018-10-31

HITESH KUMAR SARMA

body2018
JUDGMENT : HITESH KUMAR SARMA, J. 1. This is a Criminal Revision Petition, filed under Sections 397/401 of the Cr.PC, challenging the legality, propriety and correctness of the judgment and order, dated 20.02.2010, in GR Case No. 352/2006, passed by the learned Sub-Divisional Judicial Magistrate(S), Goalpara, convicting and sentencing the accused-revision petitioner to rigorous imprisonment for 3 (three) months and to pay a fine of Rs. 300/- with a default clause for offence under Section 457 of the IPC and also rigorous imprisonment for 1 (one) year and fine of Rs. 1,000/- with a default clause for offence under Section 324 of the IPC as well as the judgment and order, dated 18.03.2011, passed by the learned Session Judge, Goalpara in Criminal Appeal No. 5/2010 affirming the aforesaid judgment of the learned trial court. 2. Heard the learned counsel, Mr. H Das assisted by the learned counsel, Mr. BC Deka for the revision petitioner. Also heard Mr. RJ Baruah, learned Additional Public Prosecutor, appearing for the State of Assam. 3. The prosecution case is that, one Mossa Manowara Khatoon lodged an FIR with the Lakhipur Police Station, on 01.05.2006 alleging that in the intervening night of 30.04.2006 and 01.05.2006, at about 1:00 am, the accused persons by cutting the rope of the door of her house, opened the door and entered inside her house. Then they caused injuries to her by a dagger. She raised hue and cry. People nearby arrived at the place of occurrence and rescued her. 4. On receipt of the FIR, the Lakhipur Police Station registered a case, being No. 50/2006, under Sections 458/326/307/34 of the IPC, investigated into it, collected evidence, and on completion of investigation, laid the charge-sheet against the accused persons including the present accused-revision petitioner under Sections 457/324/34 of the IPC. 5. After exhausting all required legal formalities, a formal charge under the aforesaid sections of law was framed against the accused-revision petitioner and Others to which they pleaded not guilty. Therefore, the trial commenced. 6. The prosecution examined as many as 7 (seven) witnesses and the defence examined none. 7. After closure of the prosecution evidence, statements of the accused-revision petitioner and Others were recorded under Section 313 of the Cr.PC. In such statement, recorded under Section 313 of the Cr.PC, the accused-revision petitioner is heard denying the allegations made against him. 8. 6. The prosecution examined as many as 7 (seven) witnesses and the defence examined none. 7. After closure of the prosecution evidence, statements of the accused-revision petitioner and Others were recorded under Section 313 of the Cr.PC. In such statement, recorded under Section 313 of the Cr.PC, the accused-revision petitioner is heard denying the allegations made against him. 8. I have scanned the evidence on record as well as the impugned judgments of the learned courts below. 9. In her evidence, the PW1/injured is found to have stated that she had lighted the lamp in her house while the accused-revision petitioner and co-accused entered into her house, and at that time, the present accused-revision petitioner had injured her with a dagger causing injuries on her right hand. She raised hue and cry and then the accused-revision petitioner and Others left the place of occurrence. She was rescued by the co-villagers and taken to Lakhipur hospital for treatment. In her cross-examination, she is heard admitting that there is land dispute between her husband and the accused-revision petitioner and Others. 10. The PW2 is the VDP Secretary. He is heard saying in his evidence that after hearing alarm raised by the PW1/injured, he rushed to the place of occurence and found gathering of some co-villagers there. According to him, the PW1/injured told him that the accused-revision petitioner, Manik Ali, caused injuries on her person. So, it appears from the evidence of PW2 that he had no independent knowledge of the occurrence and was only told by the PW1/injured. On examination of the evidence of PW1/injured, it is found that she never deposed that she had informed about the occurrence to the PW2 and there is also no evidence that she had ever told the PW2 that it was the accused-revision petitioner, Manik Ali who had caused injuries to her person. If the PW2 claims that he heard about the occurrence from the injured/PW1, then, it has to be corroborated by the evidence of PW1/injured. In the absence of any evidence to the effect that the PW1/injured ever told that the accused-revision petitioner had caused injuries to her person, such evidence of PW2 remains a piece of hearsay evidence. Therefore, the evidence of PW2 cannot be acted upon. 11. All the other non-official witnesses are found to have appeared in the place of occurrence on hearing the alarm raised by the PW1/injured. Therefore, the evidence of PW2 cannot be acted upon. 11. All the other non-official witnesses are found to have appeared in the place of occurrence on hearing the alarm raised by the PW1/injured. The statements of PW3, 4 and 5 appears to be same with that of PW2 as the PW1 has not claimed anywhere, in her evidence, that she told them that the accused-revision petitioner had caused injuries on her person. But, the fact remains that the occurrence took place in the intervening night, at about 1:00 am, and it is not expected that there would be eye-witness at the place of occurrence in anticipation that the occurrence would take place there. That being so, it is but normal that the injured is the only witness to depose about the facts leading to the occurrence coupled with the evidence of the doctor, examined as PW6, as regard the injuries sustained by her. 12. The PW6/Doctor found cut injuries on the exterior surface of the right hand of the injured with blood present. He also opined that the injuries were caused by sharp weapon. The age of the injuries is about 4 (four) hours. 13. That being so, the occurrence took place in the intervening night of 30.04.2006 and 01.05.2006, and after examining the injured/PW1, on 02.05.2006, the Doctor said that the injury was 4 (four) hours old. Therefore, the age of the injuries, taken together with the evidence of PW1/injured that at about 1:00 am in the intervening night of 30.04.2006 and 01.05.2006, the occurrence took place, appears to be convincing and reliable inspite of the fact that there are no other witnesses to the occurrence. It is a settle position of law that it is not the quantity but the quality of evidence that need to decide the truthfulness or otherwise of the accusations. As has been stated above, there is no reason to disbelieve the PW1 and the medical evidence of PW6. The accused-revision petitioner has been specifically named by the victim. The defence tried to stage a story that because of old grudge in respect of land dispute, the present case has been instituted against the accused-revision petitioner and Others. But, to the understanding of this court, if there was an old grudge, as indicated by the defence, by way of cross-examination, this can be a ground of causing injuries to the PW1/injured. But, to the understanding of this court, if there was an old grudge, as indicated by the defence, by way of cross-examination, this can be a ground of causing injuries to the PW1/injured. This court is alive to the fact that the occurrence took place in the house of the PW1. But without going to the cause of the incident, this court can gather from the evidence on record that it was none, but the accused-revision petitioner, who had caused injuries to the injured/PW1. The occurrence took place in the house of the injured/PW1 is also not a disputed position. That being so, the order recording conviction of the accused-revision petitioner, under Sections 457/324 of the IPC, appears to be consistent with the evidence on record. 14. However, so far the sentence imposed upon the accused-revision petitioner is concerned, this court is of the view that considering the background facts of the case, as alleged by the defence as well as the nature of the offences including the injuries caused, this court is of the view that simple imprisonment for 3 (three) months and 15 (fifteen) days on each count under Sections 457/324 of the IPC will meet the ends of justice apart from fine of Rs. 3,000/- on each count. And in default of payment of fine on each count, the accused-revision petitioner shall undergo simple imprisonment for another period of 15 (fifteen) days on each count. The sentences, in default of payment of fine, shall run consecutively one after the other. The substantive sentence imposed upon the accused-revision petitioner shall be set off against the period he has already spent in judicial custody during investigation and trial. 15. The accused-revision petitioner shall surrender before the learned trial court to serve out the sentence within 1 (one) month. 16. This revision petition, is, accordingly, partially allowed. 17. Send down the LCR along with the copy of this judgment.