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2019 DIGILAW 245 (GAU)

Md. Tayabulla Ali v. State of Assam

2019-02-21

RUMI KUMARI PHUKAN

body2019
JUDGMENT : RUMI KUMARI PHUKAN, J. 1. On 28.12.2000 informant Md. Mainul Haque lodged an FIR before O/C Chaygaon P.S. alleging that on 28.12.2000 at about 3.00 PM when he asked Md. Taibulla Ali to return Rs. 1,000/- which the accused owed to him, he was scolded and threatened. When he informed the matter of some village elders they promised to settle up the matter and accordingly he went to house of one Zumar Ali. Accused Taibulla was also present there and when the meeting for settlement was going on accused Taibulla struck him over his chest with a knife causing serious injury. The victim was treated by doctor. On receipt of the FIR O/C registered Chaygaon P.S. Case No. 144/2000 u/s 326 IPC. After completion of investigation the I/O submitted charge-sheet against the accused u/s 324 IPC. Learned trial Court framed charge against the accused u/s 324 IPC, to which, he pleaded not guilty. Prosecution examined four witnesses. Accused was examined u/s 313 CrPC. No defence witness was examined. Defence case was one of complete denial. On completion of trial, the learned trial Court convicted the accused u/s 324 IPC and sentenced to RI for 6 months and also to pay a fine of Rs. 500, in default S/I for 15 days by its order dated 08.01.2008. 2. In the appeal preferred by the petitioner, the learned trial Court upholding the judgment and order of conviction modified the sentence. The petitioner was sentenced to SI for 3 (three) months and to pay a fine of Rs. 1,000/-, in default SI for 15 days by its order dated 20.02.2009 in appeal No. 06/2008 3. As against the concurrent findings of both the forums, the present revision has been preferred challenging the legality and validity of the order. 4. None appears for the petitioner on repeated occasion so the matter is taken up for hearing in presence of learned Addl. Public Prosecutor, Mr. B J Dutta. 5. I have carefully gone through the findings of both Courts along with the evidence in LCR. Also heard the submission of learned Addl. PP, Mr. B J Dutta on the matters on record. 6. From the evidence of the victim/PW-1 it appears that he has certain grievances against the accused petitioner who took money of Rs. 1,000/- and whole dispute rooted for such money transaction. Also heard the submission of learned Addl. PP, Mr. B J Dutta on the matters on record. 6. From the evidence of the victim/PW-1 it appears that he has certain grievances against the accused petitioner who took money of Rs. 1,000/- and whole dispute rooted for such money transaction. On 28.12.2000 in the afternoon when the PW-1 found the accused petitioner on the road, he asked him to return the money which owed to him and the accused petitioner denying such debt started altercation with the informant/PW-1 and chased him to assault. At this the PW-1 informed the matter to the village elders to settle the matter and as promised by the village people to settle the matter he went to the house of one Zumur Ali. Amidst the meeting the accused petitioner denied to return the money to which the PW-1 protested and suddenly the accused petitioner brought out a knife and gave a blow upon his chest causing injury upon him. He was taken to the hospital for treatment and thereafter the FIR was filed. His evidence remained un-rebutted in cross examination and defence suggested that he sustained injury by falling by himself. 7. The PW-3 Siraj Ali is the son of Zunur Ali where the meeting was held for settlement of the matter (Zunur Ali already died) has completely corroborated the testimony of the victim that while the compromise meeting took place in the house to settle the matter between the parties, suddenly the accused petitioner struck the informant resulting injury on his chest. Similar is the version of PW-2 who happened to be present in the meeting held in the house of PW-3. He has fully lent support to the version of the informant and both these PW-2 & PW-3 being the independent witness and have corroborated the testimony of the PW-1. Nothing emerges to discard their evidence. The learned Court has fully appreciated the evidence of these 3 (three) untainted evidence and found that their evidence is wholly reliable to hold that it was the accused petitioner who dealt the cut blow upon the victim. 8. The ground of filing the FIR after 2 (two) days delay and also the non-examination of medical officer, that was raised by the petitioner before the appellate Court was also duly appreciated by the Court in the impugned judgment. 8. The ground of filing the FIR after 2 (two) days delay and also the non-examination of medical officer, that was raised by the petitioner before the appellate Court was also duly appreciated by the Court in the impugned judgment. I has been held that the FIR was filed before the O/C concerned on the very day of occurrence that is on 28.12.2000 but the O/C has registered the same after two days delay, and the same cannot be attributed to the informant. The non-examination of medical doctor although is the lapse on the part of prosecution, the Court is of the opinion that in view of the overwhelming evidence on record in a case of such nature, the prosecution case cannot be thwarted. It was held that the accused petitioner has criminal intention to attack and assault the informant for holding the public meeting for return of money taken by him, for which he carried a knife. On the basis of the evidence on record which was corroborating and convincing the learned appellate Court on proper appreciation of the matters on record has upheld the conviction and has reduced the sentence as discussed above. No any illegality and perversity is found while arriving the aforesaid decision so as to interfere into the findings. But however, taking into note of the fact that the incident is of 2000 and by this time 18 years has elapsed and the incident arose out of trifling matters of taking money of Rs. 1,000/- and there being no any criminal antecedent on the part of the accused petitioner, this Court is of opinion that it would met the ends of justice if the sentence is converted to a fine with a view to compensate the victim/the informant, who did not receive the amount due to him rather he has to go for medical treatment, in which he might have incurred expenses apart from suffering of pain and agony. 9. Resultantly while maintaining the conviction u/s 324 IPC the accused is hereby sentence to pay a fine of Rs. 10,000/- (ten thousand), in default RI for 3 (three) months. Amount of fine, if recovered, be given to the informant as a compensation. Return the LCR. 10. Present Revision Petition stands disposed with modification of sentence as indicated above.