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2019 DIGILAW 1263 (GAU)

Getem Gamno v. State of Arunachal Pradesh

2019-11-21

NANI TAGIA

body2019
JUDGMENT : Nani Tagia, J. 1. Heard Mr. N. Ratan, learned counsel for the petitioner. Also heard Mr. J. Tsering, learned Addl. P.P. for the state of Arunachal Pradesh representing the respondent No. 1; Mr. D. Kamduk, learned counsel for the respondent No. 2 and Mr. O. Pada, learned counsel for the respondent No. 3. 2. This Criminal Revision Petition under Sections 397, 401 and 482 of the Cr.P.C. has been filed by the petitioner for setting aside and quashing of the judgment and order dated 02.08.2017, passed by the learned District and Session Judge, East Session Division, Tezu, in Criminal Appeal No. 01/LDV/2016, whereby, the conviction and sentence of the accused/petitioner under Sections 324/353 of the IPC, dated 14.06.2016, passed by the learned Chief Judicial Magistrate, Lower Dibang Valley, Roing, Arunachal Pradesh, in GR Case No. 47/2012, sentencing the accused/petitioner to suffer imprisonment for a period of 1 (one) year for offence under Section 324 of the IPC and 6 (six) months for an offence under Section 353 of the IPC have been affirmed. 3. The case of the prosecution is that one, Dr. V.K. Sahgel, District Animal Husbandry & Veterinary, Lower Dibang Valley District, Roing on 24.08.2012, had lodged an FIR before the Officer-in-charge of Police Station, Roing, against the accused/petitioner to the effect that on 24.08.2012, at about 10:00 AM, accused/petitioner entered into his Office chamber to ask for reply of the RTI application which he had filed earlier. During the process, there was a heated argument between the complainant and the accused/petitioner and the accused/petitioner on getting annoyed had thrown the office telephone and thereafter, went out of the Office and took out Dao from his vehicle and came back to charge at him. During the process, one of the Office staff, namely, Chandu Mepo, got injured by the Dao of the accused/petitioner. 4. On the basis of the aforesaid FIR, Roing P.S. Case No. 42/2012, under Sections 447/324/332/353 of the IPC was registered by the Roing P.S. and on completion of the investigation, Charge-sheet was filed under Sections 447/326/333/353 of the IPC, vide Charge-sheet dated 01.03.2013. The learned Chief Judicial Magistrate, Roing, thereafter, framed charge under Sections 447/324/353 of the IPC and the accused/petitioner stood the trial. 5. In order to bring home the charges against the accused/petitioner, the prosecution examined as name as 7 (seven) witnesses. The learned Chief Judicial Magistrate, Roing, thereafter, framed charge under Sections 447/324/353 of the IPC and the accused/petitioner stood the trial. 5. In order to bring home the charges against the accused/petitioner, the prosecution examined as name as 7 (seven) witnesses. The P.W. 1 is the complainant and the P.W. 2 is the victim who had sustained injury. The P.Ws. 3, 4, 5, and 6 are the Office staff of the District Veterinary Office, Roing, and P.W. 7 is the Doctor, who had examined the victim. (i). P.W. 1 had deposed before the Court that about 2(two) years back while he was at his Office chamber with other faculty members and other Officers, the accused, namely, Getem Gamno, had come to his chamber to enquire about his RTI application, which he had filed. When accused was asked to come after sometime as there was a meeting going on in the Office chamber, the accused reprimanded him by saying why he was arrogant to him, thereafter, the accused picked up the telephone hand set and tried to throw at him and went to his Bolero vehicle which was parked outside the Office and collected a dao from there. On seeing the accused picking up the dao, he came out of his Office chamber and reached the veranda of the office with other Office staffs where the accused started waving the dao because of which, one of his staff's finger was cut, thereafter, the accused threatened and tried to hit with the bottom of the dao. Seeing the bleeding hand of his staff, the accused sought pardon that it was mistakenly cut and thereafter, fled away in his Bolero vehicle and then, he called Deputy Commissioner, Superintendent of Police and Officer-in-charge of Roing Police Station, where after, FIR was lodged against the accused. In the cross-examination, the P.W. 1/complainant stated that dao cut given to Chandu Mepo, was not intentional. (ii). P.W. 2, the victim, who received the cut injury, in his deposition stated that when he reached, the Office staffs were coming out in the Office veranda and he was standing behind the DVO (District Veterinary Officer), the complainant and in the meantime, accused came with a waving dao. As the accused came with dao, the DVO, the complainant fell down, on the ground and the P.W. 2 received dao cut injury on his 3 fingers of his left hand. As the accused came with dao, the DVO, the complainant fell down, on the ground and the P.W. 2 received dao cut injury on his 3 fingers of his left hand. P.W. 2, further stated that cut injury on his finger which he had received from the accused's dao was not intentional but it struck him when accused was waving his dao. (iii). P.W. 3, who is the Office staff of the DVO office, has stated in his deposition that the case is of 2012. However, on the day of the incident, he had gone to DVO Office for discussing about dispensary. When he came out of the DVO's Office, he saw accused entering the DVO's chamber. However, he had not seen any incident but later he had heard that the accused had a quarrel with the DVO (District Veterinary Officer). (iv). P.W. 4, who is also an Office staff, has deposed that he has not seen the incident as he was at dispensary. However, he was told by the Office staff that quarrel might have taken place at DVO's Office. In order to ascertain what actually had happened, when he reached DVO's Office, he saw accused moving away on his Bolero vehicle. (v). P.W. 5, who is also a staff, deposed that on the day of the incident, he had seen the accused, Getem Gamno coming to the District Veterinary Office but he has not seen the incident. Later he came to know that accused had quarrel with the District Veterinary Officer and he had no idea who had sustained injury. (vi). P.W. 6, who is also a staff, stated in his deposition that on the day of the incident he was in the chamber of District Veterinary Officer (DVO) and the accused came and inquired about his RTI application and in the process there was a heated argument between the DVO and the accused. He tried to pacify the situation but when failed to do so, he left the chamber and went outside the office. When he came back he was told about incident that there was pushing and pulling between the DVO and the accused and one of the staff, namely, Chandu Mepo was also injured by a dao. He further deposed that he had not seen the dao of the accused, as when he had come back, the accused had already left the office. (vii). He further deposed that he had not seen the dao of the accused, as when he had come back, the accused had already left the office. (vii). P.W. 7, the doctor, who had examined the victim had deposed that on 24.8.2012, he had examined Shri Chandu Mepo, who was brought before him by constable P. Sharma and during the examination, it was found that the victim received sharp cut on left hand finger and was bleeding heavily as blood vessel was cut. As per the examination, the injury was caused by sharp weapon like dao etc. 6. From the appreciation of the evidence as recorded, herein above, it is noticed that P.Ws. 3, 4, 5 and 6, did not witness the incident and the statements given by the P.Ws. 3 to 6 are all hearsay, and, therefore, the same cannot be taken into account. From the statement of the P.W. 1, the complainant, it has been established that after heated argument was exchanged between the accused and the complainant/P.W. 1, the accused had gone out of the chamber of the DVO Office and collected a dao from his Bolero vehicle and while coming back towards the Office of the P.W. 1 by waving his dao, P.W. 2, namely, Mr. Chandu Mepo had received cut injury on his finger. From the statement given by the P.W. 2, who is the victim himself, it is also established that he received a cut injury on his 3 fingers of left hand from the dao of the accused while the accused was waving his dao. The fact that P.W. 2, the victim, had received a cut injury on his finger, has been corroborated and supported by the statement of the P.W. 7, who is the Doctor, who had examined the P.W. 2, who had received a sharp cut on his left hand finger and was bleeding heavily as blood vessel was cut. The deposition of P.Ws. 1, 2, and 7 that P.W. 2 had received a cut injury on his finger from a sharp weapon such as dao while accused was waving his dao, have not been impeached by the defence and therefore, it must be held that the injury received by the P.W. 2 on his finger was caused by none other than the accused, while waving his dao. 7. 7. On the basis of the above established fact that P.W. 2, had received cut injury on his finger from the dao of the accused when the accused was waving his dao, the question now which remains to be determined is can the conviction handed down to the accused/petitioner by the learned Chief Judicial Magistrate, Roing, under Sections 324/353 of the IPC, which have also been upheld by the Session's Court, can be sustained or not. 8. Section 324 of the IPC which deals with the offence of voluntarily causing hurt by dangerous weapon or means, is quoted herein below: "...324. Voluntarily causing hurt by dangerous weapons or means.--Whoever, except in the case provided for by section 334, voluntarily causes hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance or by means of any substance which it is deleterious to the human body to in-hale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both." 9. From reading of Section 324 of the IPC, it appears that in order to be punishable under Section 324, "hurt" as contemplated under Section 324 must be caused voluntarily. Voluntarily causing hurt is defined under Section 321, which is quoted herein below: "...321. Voluntarily causing hurt.--Whoever does any act with the intention of thereby causing hurt to any person, or with the knowledge that he is likely thereby to cause hurt to any person, and does thereby cause hurt to any person, is said "voluntarily to cause hurt"." 10. Voluntarily causing hurt as contemplated under Section 321 involves an act done with the intention of causing hurt or with the knowledge that he is likely to cause hurt. Voluntarily causing hurt as contemplated under Section 321 involves an act done with the intention of causing hurt or with the knowledge that he is likely to cause hurt. In order to bring home, the offence under Section 324 of the IPC, what is essential to be proved is that the "hurt" was caused voluntarily which in other words would mean that the act to cause hurt was done with an intention to cause hurt as well as with the knowledge that hurt is likely to be caused. 11. If we examine the instant case in the touchstone of the principles which are to be proved under Section 324 as stated, herein above, it is noticed from the statement of the P.W. 1/complainant as well as P.W. 2/victim himself, that P.W. 2/victim received cut injury on his finger while the accused was waving his dao. The accused had taken out the dao from his Bolero vehicle after a heated argument was exchanged with the P.W. 1 and the accused was going back to the Office of the P.W. 1 with his dao waving in his hand and therefore, he had no intention to cause any injury to P.W. 2. The fact that he had no any intention to cause hurt to P.W. 2 would be further strengthened from the statement of the P.W. 1 himself, that after P.W. 2 had received cut injury and was bleeding, the accused had sought for pardon, showing that it was mistakenly cut and thereafter, he left the place in his Bolero Car. Accordingly, in the facts and circumstances obtaining in the case, I am of the considered view that no offence punishable under Section 324 of the IPC in the present case have been made out and established by the prosecution. 12. The next conviction which has been handed down to the petitioner by the Court below is under Section 353 of the IPC. Section 353 of the IPC is quoted, herein below: "...353. 12. The next conviction which has been handed down to the petitioner by the Court below is under Section 353 of the IPC. Section 353 of the IPC is quoted, herein below: "...353. Assault or criminal force to deter public servant from discharge of his duty.-- Whoever assaults or uses criminal force to any person being a public servant in the execution of his duty as such public servant, or with intent to prevent or deter that person from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by such person in the lawful discharge of his duty as such public servant, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both." 13. Section 353 of the IPC makes punishable to an act done in the form of an assault or use of criminal force to any public servant in the execution of this duty as public servant or an act done with intent to prevent or deter that person from discharging duty as public servant. The gist of the offence as contemplated under Section 353 is that a public servant must have been assaulted or used criminal force against him, in order to prevent such a public servant from executing his duty or with intent to prevent or deter the person from discharging his duty. Assault and use of criminal force to prevent a public servant from execution of his duty or with intention to prevent or deter public servant from discharging his duty as such public servant is the essence of the offence contemplated under Section 353. From the evidence on record, more particularly, the deposition of P.W. 1 who is the complainant himself, it would be evident that the act committed by the accused in the instant case was as a result of heated argument exchanged between the accused and the P.W. 1 while the accused had gone to the Office of the P.W. 1, who was the DVO, to enquire about the RTI application, which the accused had submitted. The accused had every right to go and make enquiries with regard to his RTI application filed in the Office of the P.W. 1, the DVO. The accused had every right to go and make enquiries with regard to his RTI application filed in the Office of the P.W. 1, the DVO. The entire act of bringing a dao by the accused from his Bolero vehicle parked outside the Office, after the accused had went out of the Office of the P.W. 1 after a heated exchange of arguments and in the process accused injured another Staff, Chandu Mepo, the P.W. 2, can at best be attributed to the emotionally charged atmosphere that was prevailing between the accused and the P.W. 1 in the process of an enquiry being made by the accused with regard to his RTI application pending before the Office of the P.W. 1. While coming back with a dao in his hand, the accused may have intended to assault or use criminal force to the P.W. 1, yet, the accused's intention did not materialize and/or before the final act was executed in furtherance of this intention to assault P.W. 1, the P.W. 2 was mistakenly injured on his fingers due to the waving of dao by the accused. Thereafter, the accused apologized to P.W. 2 for having mistakenly/accidentally causing injury on his fingers and left the place on his Bolero vehicle. There is nothing in the evidence available on record that accused had further assaulted or used criminal force in order to prevent or deter the P.W. 1 from discharging his duties as public servant. The accused can neither be said to have assaulted or used criminal force to the P.W. 1, while the P.W. 1 was in execution of his duty. 14. In that view of the matter, judgment and order dated 14.06.2016, passed by the learned Chief Judicial Magistrate at Roing, Lower Dibang Valley District, Arunachal Pradesh in G.R. Case No. 47/2012 sentencing the accused to suffer imprisonment for a period of 1(one) year for the offence under Section 324 IPC and 6(six) months for the offence under Section 353 IPC and the judgment and order dated 02.08.2017 passed by the learned Sessions Judge, East Session Division, Tezu, in Criminal Appeal No. 01/LDV/2016 upholding the judgment and order dated 14.06.2016 passed by the Chief Judicial Magistrate, Lower Dibang Valley, Roing, Arunachal Pradesh cannot be sustained in law and the same are accordingly, set aside and quashed. 15. The bail bond furnished by the accused stands discharged. 16. 15. The bail bond furnished by the accused stands discharged. 16. Send back the LCR.