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2018 DIGILAW 241 (GAU)

Sankudev Baruah v. State of Assam

2018-02-08

HITESH KUMAR SARMA

body2018
JUDGMENT & ORDER : 1. This is an appeal under Sections 374 of the Cr.P.C. against the judgment and order, dated 08.12.2009, passed by the learned Sessions Judge, Jorhat in Sessions Case No. 33 (JJ)/2007 convicting and sentencing the accused- appellant to undergo rigorous imprisonment for one year and to pay a fine of Rs. 1,000/- with a default clause under Section 325 of the IPC and also simple imprisonment for 6 (six) months and to pay a fine of Rs. 1,000/- with a default clause under Section 498 (A) of the IPC. 2. I have heard Mr. Z Alam, learned counsel for the accused-appellant as well as Mr. PS Lahkar, learned Additional Public Prosecutor, appearing for the State of Assam. 3. The fact leading to the case is that, on 01.05.2006, the marriage between the accused-appellant and his wife was solemnized and there were some differences between the accused-appellant and his wife in respect of the furniture given in their marriage as the same was not found as per the standard of the accused-appellant. The accused-appellant demanded money from his wife/victim. On 14.09.2006, they visited the matrimonial house of the victim in the maruti car of the accused-appellant. They also attended janmastami observed in a nearby namghar. In the evening, the accused-appellant with his wife/victim took his vehicle on a bye-pass road pretending to have their dinner at a dhaba. At a lonely place, the accused-appellant stopped the car, pulled out an iron rod from the rear seat of his car and inflicted blows on the victim/wife and thereafter drove the vehicle and dashed against a truck which was stationed by the side of the road. It was alleged that he did so with an intention of killing his wife/victim. 4. On receipt of the FIR, on the above facts, lodged by Rajib Kumar Baruah, brother of the victim, the Police registered a case, investigated into it, collected evidence, and after completion of investigation, submitted charge- sheet under Sections 498 (A) /307/325 of the IPC. 5. After exhausting all the required legal formalities, the learned trial court of the Sessions Judge, framed a formal charge against the accused- appellant under Sections 498 (A) /307 of the IPC to which he pleaded not guilty. Hence, the trial commenced. 6. The prosecution examined as many as 10 (ten) witnesses and the defense examined none. 7. 5. After exhausting all the required legal formalities, the learned trial court of the Sessions Judge, framed a formal charge against the accused- appellant under Sections 498 (A) /307 of the IPC to which he pleaded not guilty. Hence, the trial commenced. 6. The prosecution examined as many as 10 (ten) witnesses and the defense examined none. 7. After closure of the prosecution evidence, statement of the accused- appellant was recorded under Section 313 of the Cr.PC in which statement he had denied the allegations leveled against him and claimed that the incident is a result of the vehicular accident only. 8. After completion of the trial, the learned trial court convicted the accused-appellant under Sections 325/498 (A) of the IPC, as indicated above. 9. I have perused the evidence on record as available in the record of the learned trial court. 10. The evidence of the victim/PW2, Smt. Maneka Baruah, is that from his paternal house, the accused-appellant has taken her in his maruti car to a restaurant for having dinner but as it was too early, the PW2 did not want to have her dinner at that point of time, and therefore, she proposed to go to her sisters house. But, instead of going there, the accused-appellant stopped the vehicle near a restaurant where also the PW2 did not want to have dinner. Thereafter, some altercation took place between them in connection with the demand of money from the parental house of the victim/PW2. Then he got an iron rod from the rear seat of his car and assaulted her causing fracture on her hand. 11. The evidence of the doctor, examined as PW9, shows the following injuries on the person of the victim/PW2:- "1. Lacerated injury in scalp over mid parietal region. Size-8 cm x 1 cm x 1 cm. 2. Lacerated injury in scalp over left occipital region. Size-5 cm x 1 cm x 1 cm. 3. Lacerated injury at mid arm lateral side. Size- 9 cm x 1 cm x 1 cm. 4. Lacerated injury in face over temporal region. Left in front of hairline. Size-4 CM X cm x cm. Swelling and pain in left hand. Fracture left ulna vide X-ray." 12. The evidence of other witnesses appears to be not very relevant so far the offence under Section 325 of the IPC is concerned. 4. Lacerated injury in face over temporal region. Left in front of hairline. Size-4 CM X cm x cm. Swelling and pain in left hand. Fracture left ulna vide X-ray." 12. The evidence of other witnesses appears to be not very relevant so far the offence under Section 325 of the IPC is concerned. The victim has herself stated that she was assaulted by the accused-appellant causing injuries to her person, as indicated above. The injuries are covered by Section 325 of the IPC is not a fact disputed at the bar. 13. Therefore, on the basis of the evidence on record, the conviction of the accused-appellant under Section 325 of the IPC appears to be based on evidence on record. So far the evidence with respect to offence under Section 498 (A) of the IPC is concerned, it is the evidence of the PW2 that the accused- appellant alleged that the furniture given to them at their marriage was of sub- standard and so he demanded an amount of Rs. 2 lakhs from her parental house which she could not meet. 14. There is no evidence led by the prosecution to substantiate the accusations under Section 498 (A) of the IPC except the evidence of PW2 herself. All the other witnesses, except PW2, are found to have deposed about the offence relating to Section 325 of the IPC and as regard damage of the vehicle which has no nexus with the offence under Section 498 (A) of the IPC. That being so, it is the case of absence of any corroborative evidence in respect of the offence under Section 498 (A) of the IPC. Therefore, the order of conviction recorded by the learned trial court so far Section 498 (A) of the IPC is concerned is set aside. 15. The accused-appellant is sentenced to rigorous imprisonment for 1 (one) year and to pay a fine of Rs. 1,000/- with a default clause under Section 325 of the IPC. Iin the factual background of the case and on consideration of the evidence on record by the learned trial court, but, this Court is of the view that if the accused-appellant is sentenced to rigorous imprisonment for 1 (one) month and if the fine is enhanced to Rs. 10,000/- it will meet the ends of justice and accordingly the sentence is modified to the extent aforesaid. 10,000/- it will meet the ends of justice and accordingly the sentence is modified to the extent aforesaid. In default of payment of fine, the accused-appellant shall undergo imprisonment for 7 (seven) days. 16. The appeal, is accordingly, partly allowed. 17. The period of detention of the accused-appellant in custody, during investigation and trial, be set off against the substantive sentence. 18. Send down the LCR along with the copy of this judgment.