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2018 DIGILAW 806 (GAU)

Mun Baruah v. State of Assam

2018-05-15

HITESH KUMAR SARMA

body2018
JUDGMENT : 1. This is a criminal revision petition, filed under section 397/401 of the Cr.PC, challenging the legality, propriety and correctness of the judgment and order, dated 26.3.2009, passed by the learned Additional Sessions Judge (FTC), Sivasagar, in Criminal Appeal No. 12(4)/2008, partly affirming the judgment and order, dated 2.9.2008, passed by the learned Chief Judicial Magistrate, Sivasagar, in GR Case No. 1287/2002, convicting and sentencing the accused-revision petitioner to rigorous imprisonment for 1 year and the pay a fine of Rs. 1,000 with a default clause under section 326 of the IPC. The learned appellate court acquitted the revision petitioner for the offence under section 341 of the IPC under which provision also he was convicted and sentenced. 2. Heard Mr. G.C. Phukan, learned counsel for the accused-revision petitioner. I have also heard Mr. B.J. Dutta, learned Additional Public Prosecutor for the State respondent. 3. I have perused the judgments of the learned trial court as well as that of the learned appellate court. I have also perused the records of the trial court including the evidence. 4. The fact of the case is that, the informant/PW3 lodged an FIR on 21.12.2002, with the Gaurisagar Police Station, alleging therein that on 25.10.2002 at about 7:00 p.m., the accused-revision petitioner Sri Mun Baruah, caused grievous injuries to her husband/injured Baba @ Utpal Saikia, with a sharp cutting weapon in front of the house of Sri Sadanada Saikia (PW2) while he was returning home from the shop of one Sri Khagen Saikia. The injury was caused to the injured by restraining him in front of the house of PW2, Sadananda Saikia, while he was proceeding towards his own house. The injured was admitted in the Assam Medical College and Hospital, Dibrugarh, and prior to that, of course, he was taken to Jaysagar Civil Hospital, wherefrom he was referred to the Assam Medical College and Hospital, Dibrugarh. The injured was under treatment for about 2 months there in the hospital. 5. On receipt of the FIR, on such facts, the Gaurisagar Police Station registered a case, being No. 96/2002, under section 341/326 of the IPC on 21.12.2002, investigated into it, collected evidence, and after completion of the investigation, finally, submitted charge-sheet against the accused-revision petitioner under section 341/326 of the IPC. 6. 5. On receipt of the FIR, on such facts, the Gaurisagar Police Station registered a case, being No. 96/2002, under section 341/326 of the IPC on 21.12.2002, investigated into it, collected evidence, and after completion of the investigation, finally, submitted charge-sheet against the accused-revision petitioner under section 341/326 of the IPC. 6. After exhausting all required formalities, a formal charge under section 341/326 of the IPC was framed against him by the learned trial court, to which he pleaded innocence necessitating the trial of the case. Accordingly, the trial commenced. 7. During trial, the prosecution examined as many as 10 witnesses including the investigating officer and the medical officer who were subjected to cross-examination by the defence. 8. After closure of the prosecution evidence, statement of the accused-revision petitioner was recorded under section 313 of the Cr.PC, wherein he is heard denying the allegations made against him. He also declined to adduce defence evidence. 9. On perusal of the judgment of the learned trial court as well as that of the learned appellate court of Additional Sessions Judge (FTC), it appears that both the judgments here relied upon the evidence of PW1/victim, PW2 and the eyewitnesses, i.e., PW4 and PW5 as well as the evidence of the medical officer/PW9. The evidence of PW10/investigating officer has also been discussed in the judgment. 10. The accusations in the instant case is causing grievous hurt by a sharp cutting weapon on the person of the injured/PW1, Sri Baba @ Utpal Saikia, by accused-revision petitioner at about 7:00 p.m. on 25.10.2002. The evidence of the medical officer, examined as PW9, clearly shows that the injuries sustained by the injured/PW1 was grievous in nature caused by sharp cutting weapon. On examination of the injured/PW1, the doctor found the following injuries. Penetrating wound over the opigastsium with omental prolapse. Size of the wound — approximately 5 cm. Operative findings: Laceration of the liver, colonic perforation and haemopneume, thorax lapsed. The opinion of the doctor/PW9 has already been indicated above. 11. Now, the question left to be answered is as to who had caused grievous hurt to the injured/PW1. 12. Penetrating wound over the opigastsium with omental prolapse. Size of the wound — approximately 5 cm. Operative findings: Laceration of the liver, colonic perforation and haemopneume, thorax lapsed. The opinion of the doctor/PW9 has already been indicated above. 11. Now, the question left to be answered is as to who had caused grievous hurt to the injured/PW1. 12. The evidence of PW1/injured himself is that while he was proceeding back to his residence from the shop, he found the accused-revision petitioner and one Pradip, examined as PW5, were having altercation and when he intervened, at that point of time, the accused-revision petitioner caused him the injuries. This PW5/Pradip, in his evidence, categorically stated that the accused-revision petitioner caused injuries to the injured/PW1 with a sharp cutting weapon while he intervened in the altercation between them and was trying to separate both of them. 13. PW4 is another eyewitness to the occurrence and he has succinctly told about the occurrence to the effect that the accused-revision petitioner caused injures to the person of the injured/PW1. 14. The evidence of PW6 and PW7 is not very relevant as they only heard about the occurrence and they did not have any independent knowledge about the occurrence. PW2 is the witness, in front of whose house, the occurrence took place. He came out immediately after the occurrence and found the PW1 in an injured state and on being inquired by him, the injured told him that it was the accused-revision petitioner who caused injuries to his person. 15. Therefore, the consistent evidence of the eyewitness, and the evidence of PW2 who appeared at the scene after the occurrence, are such that there is no reason to disbelieve their evidence on fact. 16. The learned counsel for the accused-revision petitioner has submitted that the delay in lodging the FIR was of about 2 months. Before the FIR was lodged, a GD Entry, being No. 492, was made in the Gaurisagar Police Station and there is also another GD Entry made on the date of lodging of the FIR, and both the GD entries were not produced in the court. He has tried to impress upon the court that suppression of the GD entries speaks volumes of the manipulation of facts of the case against the accused-revision petitioner. 17. He has tried to impress upon the court that suppression of the GD entries speaks volumes of the manipulation of facts of the case against the accused-revision petitioner. 17. In the considered view of this court, when the fact of the case is proved by the consistent reliable evidence, whether technicalities should be allowed to stand as a stumbling block in the way of dispensing justice, is a question to be decided upon. 18. So far the delay in lodging the FIR is concerned, this has come out from the evidence on record that the victim was in the Assam Medical College and Hospital, Dibrugarh, for about 2 months and the wife/informant was with the victim in the hospital and the FIR was lodged after coming back from the hospital only. 19. Learned counsel for the accused-revision petitioner has submitted that on the date of occurrence itself, the informant went to the police station and reported the occurrence, and therefore, GD Entry was made in the police station which has not been produced in the court. The production or non-production of the General Diary Entry before the court is a matter concerning the investigation of the case and the informant has no role in that. If the lapse in the part of the investigating officer is allowed to cripple the prosecution case, it will mean that the he is ruling the roots. On the other hand, if the fact of the case otherwise established by corroborative and consistent evidence is allowed to be crumble down then none but the justice would be the casualty. One more issue raised by the learned counsel for the revision petitioner is that the investigating officer did not examine the injured/PW1 during the course of investigation. This is again, as stated above, a fault on the part of the investigating officer which cannot be allowed to stand as a deterrent in the process of dispensing justice. That being so, this court is not in agreement with the learned counsel for the revision petitioner that for lapses on the part of the investigating officer, the accused-revision petitioner deserves to be acquitted in the face of the proved fact that it was none but the accused-revision petitioner who caused injury to the injured/PW1, as alleged. 20. That being so, this court is not in agreement with the learned counsel for the revision petitioner that for lapses on the part of the investigating officer, the accused-revision petitioner deserves to be acquitted in the face of the proved fact that it was none but the accused-revision petitioner who caused injury to the injured/PW1, as alleged. 20. That being so, so far the conviction recorded by the learned trial court as well as by the learned Appellate Court of Additional Sessions Judge (FTC), under section 326 of the IPC s concerned, this court is of the view that no interference is called for in exercise of revisional power of this court. 21. However, the fact remains that the accused-revision petitioner has been fighting a prolonged legal battle for about 16 years as on date and considering this fact as well as the background fact of the case, this court is of the view that, if the punishment imposed upon the accused-revision petitioner to rigorous imprisonment for 1 year under section 326 of the IPC, reduced to rigorous imprisonment for 6 months retaining the fine with the default clause as it is, will meet the ends of justice. 22. Accordingly, the substantive sentence of rigorous imprisonment for 1 year under section 326 of the IPC is reduced to rigorous imprisonment for 6 months, retaining the fine amount and the default clause as it is. 23. Accordingly, the petition is partly allowed. 24. Send down the LCR along with a copy of this judgment.