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2019 DIGILAW 376 (GAU)

Subal Chandra Das v. State of Assam

2019-03-25

RUMI KUMARI PHUKAN

body2019
JUDGMENT : 1. Heard the Mr. S.K. Jain, learned counsel for the petitioners-accused as well as Mr. R.J. Baruah, learned Addl. P.P., Assam appearing for and on behalf of the State respondent. 2. By filing this revision under section 401 read with section 397, Cr.PC, the petitioners have prayed for setting aside and quash the judgment and order, passed by the learned CJM, Kamrup at Amingaon in G.R. Case No. 5638/2008, dated 17.10.2014 convicting the accused-petitioners under section 325, IPC, which was upheld by the court of learned Sessions Judge, Kamrup, Amingaon on 28.7.2015, in Criminal Appeal No. 33(K-A)/2014. 3. The Palashbari P.S. Case No. 131/2006 was registered on 10.8.2006, under section 447/325/34, IPC, on the basis of a complaint petition filed by the informant Rubul Nath, before the learned CJM, Kamrup, who forwarded it to the Palashbari P.S., for filing of F.F. 4. The case of the prosecution as stated is that on 30.7.2006, the accused-persons assaulted the father of the informant, causing serious injuries to him, when he went to tell about their encroachment over a plot of land belonged to the village Namghar. 5. Police conducted investigation over the matter and after completion of the same, submitted charge sheet against the accused-persons under section 325/447/34, IPC. Both the accused-persons appeared before the trial court and denied the charges under section 325/34, IPC, that was framed against them. 6. The prosecution examined nine witnesses in support of their case and the defence also examined one witness. 7. The accused-persons were examined under section 313, Cr.PC, wherein also they have denied the allegations. At the conclusion of the trial, the learned trial court by its order dated 17.10.2014, passed in G.R. Case No. 5638/2008 held both the accused-persons guilty and convicted them under section 325, IPC and sentenced each of them to undergo simple imprisonment for three years and to pay a fine of Rs. 500, in default simple imprisonment for two months. On the appeal so preferred against the judgment, the learned appellate court upheld the judgment and reduced the sentence to simple imprisonment for six months and to pay a fine of Rs. 30,000 each and the amount of fine was directed to be given to the victim as compensation, by its order dated 28.7.2015, in Criminal Appeal No. 33(K-A)/2014. 8. On the appeal so preferred against the judgment, the learned appellate court upheld the judgment and reduced the sentence to simple imprisonment for six months and to pay a fine of Rs. 30,000 each and the amount of fine was directed to be given to the victim as compensation, by its order dated 28.7.2015, in Criminal Appeal No. 33(K-A)/2014. 8. Challenging the legality and validity of the aforesaid order, the present revision petition has been preferred by the accused-persons on the ground that the learned appellate court has committed error while affirming the conviction and sentence and failed to appreciate the evidence in a proper perspective. 9. I have heard the submission of learned counsel Mr. S.K. Jain for and on behalf of the accused-petitioners and Mr. R.J. Baruah, learned Addl. P.P., Assam, representing the State/respondent No. 2. 10. Referring to the evidence on record, the learned counsel for the petitioners has submitted that there was no any eye witness to the occurrence even though the occurrence took place in a populated area and the so called eye witness, i.e., PW1 has admitted in his cross-examination that he has not seen the occurrence. Further it has also been submitted that there was no earlier enmity between the parties and the incident happened due to sudden altercation between the parties, without premeditation and considering the fact that the matter relates to the year 2006 (about 13 years back) and the accused-persons have no earlier criminal antecedent, their case should be considered leniently. 11. The learned counsel for the State-respondent has, however, contended that the victim has sustained fracture injury on his nose which is supported by Medical Officers and the evidence of the victim cannot be discarded for having no eye witness to the occurrence, as it was a evening time. It is submitted that in view of the evidence of the victim supported by Medical Officers and all other facts and circumstances, the complicity of the accused-persons have been proved. 12. Due consideration is given to the submission made before this court. I have also gone through the evidence on record. 13. It is submitted that in view of the evidence of the victim supported by Medical Officers and all other facts and circumstances, the complicity of the accused-persons have been proved. 12. Due consideration is given to the submission made before this court. I have also gone through the evidence on record. 13. The victim in his evidence as PW3 has stated that due to the dispute regarding the boundary of the village Namghar and the adjacent land of the accused-petitioners, as he made some protest, suddenly he was assaulted by the accused with a stone for which his nose got fractured with bleeding. He was taken to a nearby PHC, wherefrom he was referred to GMCH but however, he was admitted in the Sanjeevani Hospital, where his nose was operated. 14. The evidence of the victim that he sustained injury is supported by PW1 (son of the victim) and PW4 (a neighbour) that hearing hue and cry at the time of occurrence, when they arrived there, they found the victim in an injured condition with bleeding from his nose. The victim reported them that it was the accused-persons who assaulted them. 15. Although the evidence of PW2 is not so reliable, the evidence of PW5 and PW6 are not take into confidence as they were hearsay witnesses. 16. The PW7 (the Medical Officer), who immediately attended the injured after the incident has stated that on his examination on 30.7.2006, he found one lacerated wound over left foot, size 3cm x 6cm x 5cm and another lacerated wound over the upper part of the nose, size 1 cm x 0.5 cm, with bleeding and he was referred to the GMCH for better investigation. 17. Similarly the victim (PW3) was examined by another Medical Officer/PW9 at Sanjeevani Hospital, who is also testified that he found fracture injury on the person of the PW3. 18. The learned trial court although did not place explicit reliance upon the evidence of PW1 and PW2, they being not eye witnesses to the occurrence, but has relying upon the evidence of PW3/injured, which is supported by two Medical Officers, came to the finding that the victim sustained fracture injury on his nose for the assault made by the accused-petitioners. 19. The evidence of DW1 being cryptic was not taken into consideration. 20. 19. The evidence of DW1 being cryptic was not taken into consideration. 20. The PW4 although not an eye witness to the occurrence but has arrived at the place of occurrence immediately after the occurrence and found the injured lying on the road and he came to know that it was the accused-petitioners had assaulted him. 21. It is to be noted that the learned trial court as well as the appellate Court has duly relied upon the evidence of victim and was of the view that evidence of the injured cannot be ignored in absence of enmity between the parties and his evidence can be accepted irrespective of corroboration and it is not at par with the evidence of accomplish. 22. After going through all entirety of the matter, it appears that there is no infirmity in the order of the appellate court while affirming the sentence passed by the learned trial court. Accordingly it can be held that in view of the injury sustained by the injured, the case is liable to be convicted under section 325/34, IPC. 23. At this juncture, I considered the submission of learned counsel for the petitioners that there was no earlier enmity between the parties and the incident has happened due to the sudden altercation between the parties and the injured was assaulted with a stone lying on the road but not by any sort of weapon even though they have iron rods in their hand. It has also been submitted that both the parties being neighbor, residing peacefully since after the incident that happened in the year 2006 and any severe punishment would lead to strain relation again between the parties and would result disharmony in the society. 24. In view of the submission made above as well as the nature of injury and the fact that there was no earlier criminal antecedent between the parties and to maintain their proper relation in the main stream of the society, while maintaining the conviction under section 325/34 IPC, it is hereby directed that the accused-petitioners is hereby released, on due admonition and the petitioners will pay the fine amount of Rs. 30,000 each, totaling Rs. 60,000 (as directed in by the trial court), as compensation to the injured, within a period of two months from the date of order. 25. In view of above, the revision stands disposed accordingly. 26. 30,000 each, totaling Rs. 60,000 (as directed in by the trial court), as compensation to the injured, within a period of two months from the date of order. 25. In view of above, the revision stands disposed accordingly. 26. Return the LCR along with a copy of this judgment immediately.