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2018 DIGILAW 1579 (GAU)

Alauddin v. State of Assam

2018-11-01

HITESH KUMAR SARMA

body2018
JUDGMENT & ORDER : 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 19.03.2009, passed by the learned Sessions Judge, Karimganj in Criminal Appeal No. 3(1)/2008 and Criminal Appeal No. 4(1)/2008 dismissing the appeals and affirming the judgment and order, dated 29.01.2008, passed by the learned Assistant Session Judge, Karimjanj in GR Case No. 776/2002, convicting the accused-revision petitioners under Sections 148/341/326/149 of the IPC and sentencing them to suffer rigorous imprisonment for 1 (one) year under Section 148/149 of the IPC and a fine of Rs. 500/-with a default clause and to suffer simple imprisonment for 7 (seven) days under Section 341/149 of the IPC and rigorous imprisonment for 4 (four) years and a fine of Rs. 5,000/-each with a default clause under Sections 326/149 of the IPC. The substantive sentences are ordered to run concurrently. 2. Heard the learned counsel, Mr. NS Laskar assisted by learned counsel, Mr. RA Choudhury for the accused-revision petitioners. Also heard Mr. B.J. Dutta, learned Additional Public Prosecutor, appearing for the State of Assam. 3. The fact leading to the case is that, on 30.08.2002, at about 8:00 pm, when the victim Bidyut Bhusan Das was returning home, after collecting his shirt from the laundry situated at Narikholi Tinali, he was attacked by his co-villagers, namely, the revision petitioners (as named by him in his evidence) near the poultry firm of one Abdul Gafur. They caused multiple injuries, including on his both legs and right hand by means of blunt and sharp edge of dao. The injured, aforesaid, was taken to Karimganj Civil Hospital and from there he was referred to the Silchar Medical College & Hospital where he underwent medical treatment. 4. On such facts, on receipt of the FIR lodged by the elder brother of the victim, namely, Bijoy Bhusan Das @ Amulya Das, Karimganj Police Station registered a case, being Karimganj Police Station Case No. 295/2002, investigated into it, collected evidence, and on completion of investigation, laid the charge-sheet against the accused-revision petitioners under Sections 147/148/149/341/326/307/109 of the IPC. 5. On receipt of the case in, due course, for trial, the learned Assistant Sessions Judge, formal charges against the accused-revision petitioners were framed under Sections 147/148/149/307/149 of the IPC. They pleaded innocence to the charges, and therefore, the trial commenced. 6. 5. On receipt of the case in, due course, for trial, the learned Assistant Sessions Judge, formal charges against the accused-revision petitioners were framed under Sections 147/148/149/307/149 of the IPC. They pleaded innocence to the charges, and therefore, the trial commenced. 6. I have examined the record of the learned trial court including the evidence of the witnesses recorded by the learned trial court and both the judgments of the learned trial court and the learned appellate court. 7. The prosecution examined as many as 8 (eight) witnesses who were subjected to cross-examination by the defence. In this case, the PW4 and PW5 were declared hostile and the prosecution also subjected both of them to cross-examination after declaring them hostile. 8. Before proceeding to discuss the evidence of the witnesses on record, let me take up the evidence of the hostile witnesses, i.e., PW4 and PW5. Although the prosecution declared both the PW4 and PW5 to be hostile witnesses in view of the fact that they have deviated their statements from the one made before the Investigating Police Officer under Section 161 of the Cr.PC as regards the fact of witnessing the occurrence. But, they are heard saying, in their evidence, before they were declared hostile by the prosecution, that they saw the injured/PW1 lying on the road in an injured state. None of them are heard saying, in their evidence, that they saw as to who had assaulted or injured the victim/PW1. In their cross-examination by the prosecution, although nothing implicating the accused-revision petitioners could be elicited yet the fact remains that their evidence is specific in respect of the fact that the injured was lying with injuries on his person on the road which both of them witnessed. They did not implicate the accused-revision petitioners to be the persons who had injured the PW1. But, as indicated above, their evidence is clear on the point that the PW1 was, in fact, injured and lying in such a state on the road and this part of their evidence can be safely acted upon. 9. On meticulous examination of the evidence of each of the witnesses, it is found that the injured/PW1 is very specific while stating that the accused-revision petitioner, Alauddin, caught hold of him and fractured his right hand. The accused-revision petitioner, Abdul Latif, laid him on the ground and pressed his mouth. 9. On meticulous examination of the evidence of each of the witnesses, it is found that the injured/PW1 is very specific while stating that the accused-revision petitioner, Alauddin, caught hold of him and fractured his right hand. The accused-revision petitioner, Abdul Latif, laid him on the ground and pressed his mouth. The accused-revision petitioner, Nazir Uddin, got upon the chest of the injured/PW1 and pressed him down. The accused-revision petitioner, Masuk Uddin, snatched away one light and one bag containing money from the injured/PW1. The accused-revision petitioner, Abdul Karim, caught hold of one leg and the accused-revision petitioner, Alauddin, caught hold of the other leg of the injured/PW1 and both of them injured the PW1 on his both legs with sharp as well as blunt side of a dao. There is no specific evidence coming out from the evidence of PW1/injured as regard the role played by the accused-revision petitioner, Nazir Uddin and Rafol Mia. 10. The medical evidence produced by PW3, the Doctor of the Civil Hospital at Karimganj, makes it appear that as indicated in his evidence by the PW1, he found the injuries in the person of the PW1 although he opined that the injuries were grievous in nature caused by blunt weapon. However, it appears from his evidence that the PW1 was referred to Silchar Medical College & Hospital for further and better treatment. After medical treatment of the PW1/injured in the Silchar Medical College & Hospital, the Doctor/PW6 reported that the injuries, as stated above, and found in person of the PW1/injured were caused by sharp weapon and grievous in nature. The evidence led by PW6 being the authoritative and final opinion on the injuries sustained by the PW1 is taken by this court to have superseded the opinion recorded by the PW3/another Doctor on the basis of preliminary treatment given to the injured/PW1 at the local civil hospital. 11. The PW2 witnessed the injured/PW1 lying on the road in an injured state. The PW7 and PW8, both Investigating Police Officers, deposed as to the fact of receipt of the FIR and the investigation carried including recording of statements of the witnesses till the stage of submission of the charge-sheet. Their evidence is of formal nature. 11. The PW2 witnessed the injured/PW1 lying on the road in an injured state. The PW7 and PW8, both Investigating Police Officers, deposed as to the fact of receipt of the FIR and the investigation carried including recording of statements of the witnesses till the stage of submission of the charge-sheet. Their evidence is of formal nature. The defence tried to bring out some contradictions as regard the previous statements made by the witnesses in respect of the alleged occurrence, yet the defence could not demolish the prosecution version of the story through such cross-examination of the Investigating Police Officers, referred to above. So, it appears from the evidence, discussed above, that the injured/PW1 is a vital witness in this case. The other non-official witnesses are found to have subscribed to the fact that the PW1/injured was lying on the road in an injured state. Therefore, this court needs to take a decision on the basis of evidence on record as to who had caused the injuries on the person of the PW1. As indicated above, the only witness to implicate the accused-revision petitioners is the victim himself as none of the other witnesses are found to have witnessed the occurrence although they noticed injuries on the person of the PW1/injured. 12. Now, in the fact situation where there is no eye-witness as to the person committing the offence, this court is bound to look upon the evidence of the injured/PW1. This court cannot be unmindful of the fact that the occurrence took place at about 8:00 pm in a rural area where normally people do not move around at that point of time. Non-availability of independent eye-witness to the occurrence itself cannot be a ground of absolving the accused-revisions petitioners if the evidence of the PW1/injured is found convincing on the fact situation of the case. It is a settled law that it is not the quantity of evidence but the quality of the evidence which should be assessed to decide the truthfulness or otherwise of an accusation. 13. Here, in the instant case, therefore, this court does not find any convincing materials to justify that the PW1/injured should not be relied upon. He being the injured has specifically stated in his evidence the individual role played by each of the accused-revision petitioners and his such evidence remained unshakened even in his cross-examination also on materials points. 14. 13. Here, in the instant case, therefore, this court does not find any convincing materials to justify that the PW1/injured should not be relied upon. He being the injured has specifically stated in his evidence the individual role played by each of the accused-revision petitioners and his such evidence remained unshakened even in his cross-examination also on materials points. 14. The learned counsel for the accused-revision petitioners has canvassed that initially the statement of the injured/PW1 was recorded by Officer of one police patrol post before the present Investigating Police Officer has recorded his statement and he did not state before the Officer of the police patrol that these accused-revision petitioners had committed the offence. The omission and commission on the part of the Investigating Police Officer if allowed to prevail over the truth coming out from the evidence on record will mean that the Investigating Police Officer is ruling the roost and in such a situation none but justice will be the casualty. Therefore, on facts, as indicated above, this court being mindful of the fact that the job of this court is to dispense justice and not to deviate from dispensing justice on trivial, omissions and commissions on the part of the Investigating Police Officer which otherwise will mean that this court is subscribing to the justice delivery system to become the casualty of the omission or commission of the Investigating Agency. 15. That being so, this court does not find that the judgments, rendered by both the courts below, suffer from any such illegality or impropriety requiring interference by this court, in exercise of its revisional jurisdiction, so far the order of recording conviction of the accused-revision petitioners except the accused-revision petitioners, No. 4, Azir Uddin, No. 5, Md. Abdul Shahid, No. 6, Md. Masuk Uddin and No. 8, Rafol Mia are concerned. There is no such evidence against these 4 (four) accused-revision petitioners. The injured/PW1 has not implicated them at all with the commission of the alleged offences. Therefore, the conviction recorded in respect of them appears to have not been based on evidence on record and as such suffers from incorrectness and impropriety. These 4 (four) accused-revision petitioners deserves to be acquitted due to absence of evidence against them. 16. The injured/PW1 has not implicated them at all with the commission of the alleged offences. Therefore, the conviction recorded in respect of them appears to have not been based on evidence on record and as such suffers from incorrectness and impropriety. These 4 (four) accused-revision petitioners deserves to be acquitted due to absence of evidence against them. 16. The accused-revision petitioners No. 4, Azir Uddin, No. 7, Abdul Karim and No. 8, Rafol Mia expired during the pendency of this revision petition, and to that effect, 3 (three) death certificates, one each, issued by the competent authority have been produced by the learned counsel for the accused-revision petitioners during the hearing. 17. So far the punishment against the accused-revision petitioner, No. 7, Abdul Karim is concerned, since he is no more alive to undergo the punishment, therefore, no order is passed in respect of the sentence imposed upon him by the courts below although the conviction recorded against him stands. 18. So far, the accused-revision petitioner No. 1, Alauddin is concerned, in the fact situation of the case, this court is of the fact that the substantive sentence of rigorous imprisonment for 1 (one) year for commission of an offence under Sections 326/149 of the IPC would have met the ends of justice, and accordingly, the substantive sentence of accused-revision petitioner, Alauddin is reduced to rigorous imprisonment for 1 (one) year and the fine imposed upon him, i.e., Rs. 5,000/-is enhanced to Rs. 20,000/-and in default of payment of fine to suffer rigorous imprisonment for another 3 (three) months. So far, the accused-revision petitioners, No. 2, Abdul Latif and No. 3. Md. Nazir Uddin is concerned, considering the role played by them in the commission of the offence, as indicated above, their punishment under Sections 326/149 of the IPC is reduced to rigorous imprisonment for 6 (six) months each and a fine of Rs. 5,000/-each and in default of payment of fine simple imprisonment for 1 (one) month each. 19. So far the punishment of the accused-revision petitioners, No. 1. Alauddin, No. 2. Abdul Latif and 3. Md. Nazir Uddin on other counts is concerned, the same is retained. 20. In view of the above discussions, and findings recorded by this court, the revision petition is partly allowed modifying the sentences in respect of accused-revision petitioner No. 1. Alauddin, No. 2. Abdul Latif and 3. Md. Nazir Uddin. Alauddin, No. 2. Abdul Latif and 3. Md. Nazir Uddin on other counts is concerned, the same is retained. 20. In view of the above discussions, and findings recorded by this court, the revision petition is partly allowed modifying the sentences in respect of accused-revision petitioner No. 1. Alauddin, No. 2. Abdul Latif and 3. Md. Nazir Uddin. The appeal is allowed in respect of the accused-revision petitioners, No. 4, Azir Uddin, No. 5, Md. Abdul Shahid, No. 6, Md. Masuk Uddin and No. 8, Rafol Mia. In respect of accused-revision petitioner No. 7, Abdul Karim, the order of conviction is upheld as specifically indicated in paragraph 16 of this judgment. 21. The period of custody of revision petition Nos. 1, 2 and 3, during investigation and trial, be set off against the substantive sentences. The accused-revision petitioner Nos. 1, 2 and 3 shall appear before the learned trial court, within 1 (one) month from the date of receipt of copy of this judgment, to serve out the sentence. 22. The revision petition, accordingly, partly allowed. 23. Send down the LCR along with a copy of this judgment.