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2019 DIGILAW 607 (GAU)

Uttam Das v. State of Assam

2019-05-16

HITESH KUMAR SARMA

body2019
JUDGMENT : 1. This is a Criminal Revision Petition, filed under Sections 397/401 of the Cr.PC, challenging the legality, propriety and correctness of the judgment and order, dated 16.06.2011, passed by the learned Chief Judicial Magistrate, Lakhimpur, North Lakhimpur in GR Case No. 292/2004 convicting and sentencing the accused-petitioner under Section 324 of the IPC to rigorous imprisonment for 2 (two) years and to pay a fine of Rs. 2,000/- with a default clause as well as the judgment and order, dated 08.09.2011, passed by the learned Additional Sessions Judge, FTC, Lakhimpur, North Lakhimpur in Criminal Appeal No. 13(3)/2011 affirming the order of conviction and modifying the substantive sentence of rigorous imprisonment of 2 (two) years to rigorous imprisonment for 1 (one) year with the fine amount remaining uninterferred with. 2. I have heard Ms. P Bhattacharjee, learned counsel for the petitioner as well as Mr. RJ Baruah, learned Additional Public Prosecutor, appearing for the State respondent. 3. I have also perused the LCR including the evidence in the judgments of both the courts below. 4. The fact of the case is that, on 26.03.2004, at about 6:30 p.m. some unknown person caused injuries by means of sharp weapon to one Santosh Biswas, examined as PW1. The injured sustained injuries on different parts of his body including on his face. He was rescued by some local people and with the help of police of Khelmati Police Out Post was taken to North Lakhimpur Civil Hospital. 5. The PW2, the informant, lodged an FIR on 29.03.2004 with the Khelmati Police Out Post and on receipt of the FIR through Khelmati Police Out Post, the North Lakhimpur Police Station registered a case. After investigation, charge-sheet was laid against the accused person under Section 326 of the IPC. 6. After exhausting all required legal formalities, a formal charge was framed against the accused-petitioner under Sections 324/326 of the IPC. 7. To bring home the charge against the accused-petitioner, 6 (six) witnesses were examined by the prosecution, including the medical officer and the investigating police officer who were subjected to cross-examination by the defence. The defence examined none. 8. In his statement recorded under Section 313 of the Cr.PC, the accused-petitioner denied the accusations and even declined to adduce defence evidence. 9. After closure of the trial, the learned court below convicted and sentenced the accused-petitioner, as indicated above. The defence examined none. 8. In his statement recorded under Section 313 of the Cr.PC, the accused-petitioner denied the accusations and even declined to adduce defence evidence. 9. After closure of the trial, the learned court below convicted and sentenced the accused-petitioner, as indicated above. The learned appellate court also did not interfere with the order recording conviction of the accused-petitioner and only reduced the substantive sentence from rigorous imprisonment for 2 (two) years to rigorous imprisonment for 1 (one) year. 10. This court proposes to take up the evidence of the medical officer, examined as PW4, at first for convenience to decide as to the injuries and nature thereof. The PW4 deposed in his evidence that he had examined the injured on 26.03.2004, i.e., on the date of occurrence itself, in the North Lakhimpur Civil Hospital and found the following injuries:- "(1) Multiple cut injuries ranging from 4" x "x bone deep to 2" x "x bone deep over the vault, multiple fracture (x-ray No. 2x573). The injury was caused by sharp cutting weapon and grievous in nature. (2) Cut injuries two in numbers of sizes, (i) 5" x "x bone deep, (ii) 1" x "x" over the nape of the neck. The injuries were caused by sharp cutting weapon and simple in nature. (3) Cut injuries two in numbers of sizes, (i) 3" x "x bone deep, (ii) 2" x "x bone deep over the forehead, both the injuries are caused by sharp cutting weapon and simple in nature. (4) Cut injury over the lateral cartillery of the right eye. The injury was caused by sharp cutting weapon and simple in nature. (5) Cut injury of size 5" x 2" x muscle deep over the left side of the face. The injury was caused by sharp weapon and simple in nature. (6) Cut injury over the nose of size 1" x "x" caused by sharp cutting weapon and was simple in nature. (7) Cut injury over the upper part of the back of size, 1" x "x" caused by sharp cutting weapon and simple in nature." He opined that the injury No. 1 is grievous in nature and the other injuries are simple in nature and they were caused by sharp weapon. The injured was also referred to Gauhati Medical College & Hospital for further treatment. The medical report has been exhibited vide Ext.-2. 11. The injured was also referred to Gauhati Medical College & Hospital for further treatment. The medical report has been exhibited vide Ext.-2. 11. From the evidence of PW1/the injured, it is also found that he sustained the said injuries. There is no dispute raised at the bar as regard the injuries sustained by the injured. As indicated earlier, in this judgment, the accused-petitioner was convicted and sentenced under Section 324 of the IPC and not under Section 326 of the IPC, and therefore, in the absence of any State Appeal, this court is bound to confine itself to the judgments of the learned courts below as they stand today. 12. The learned counsel for the accused-petitioner, during the course of argument, while not disputing the evidence on record as to the role of the accused-petitioner in causing the injuries to the injured/PW1 has submitted that since 2004, the accused-petitioner has been fighting a long drawn legal battle and the sentence imposed upon the accused-petitioner is on the higher side. 13. On examination of the evidence of all the witnesses, it appears that both the learned courts below have correctly appreciated the evidence on record to hold the accused- petitioner guilty for commission of the offence involved in this case. 14. The learned Additional Public Prosecutor has submitted that considering the nature of injuries caused to the injured by the accused-petitioner the punishment inflicted upon him is rather in the lower side. He has also submitted that, in fact, instead of Section 324 of the IPC, the accused-petitioner ought to have been convicted and sentenced under Section 326 of the IPC. However, since this is not a State Appeal, as stated above, this court is not inclined to embark upon such argument. 15. In view of the argument canvassed before this court by the respective learned counsel for the parties, I have considered the sentence imposed upon the accused-petitioner for the offence under Section 324 of the IPC. 16. On perusal of the materials in the record of the learned trial court, it is found that since 06.04.2004 to 06.07.2004, the accused-petitioner was in custody for 91 (ninety one) days. 17. In the instant case, the injured was examined by the investigating police officer after 3 years as pointed out by the learned counsel for the petitioner. 18. 16. On perusal of the materials in the record of the learned trial court, it is found that since 06.04.2004 to 06.07.2004, the accused-petitioner was in custody for 91 (ninety one) days. 17. In the instant case, the injured was examined by the investigating police officer after 3 years as pointed out by the learned counsel for the petitioner. 18. The learned counsel for the petitioner has referred to a decision of this court in the case of Ram Babu Sarma & Ors. -vrs- State of Assam, reported in 2009 2 GLT 34. I have gone through the said decision of this court and found that on facts, the same is not applicable to the case at hand, particularly, in view of the fact that the doctor who on the date of occurrence itself, examined the injured/PW1 found the injuries, as indicated above, and examination of the injured as witness, during investigation, if delayed and on that count the accused-petitioner gets an acquittal, none but the justice will be the casualty. The injuries sustained by the accused-petitioner and the medical report of injuries is so consistent that there is no scope for this court to take a different view that the injured really sustained the injuries. As to the person who caused the injuries, there should be cogent reason to disbelieve the evidence of injured/PW1. Omission on the part of the investigating police officer to examine the victim as witness for about 3 years is indicative of the intention of the investigating police officer that he is hell bent to destroy the prosecution case. The duty of a court is to arrive at the truth so as to hold the accused guilty or otherwise. There is no straight jacket formula for holding such a view. It also depends on the facts of each case and the evidence produced therein. Therefore, this court is of the view that the said decision is not applicable in the facts as well as the evidence of this case. 19. Whatever it may be, the evidence on record makes it appears that the accused is the tenant under the victim and as such, the victim was his landlord. The evidence further reveals that the accused developed some affair with the wife of the injured. 19. Whatever it may be, the evidence on record makes it appears that the accused is the tenant under the victim and as such, the victim was his landlord. The evidence further reveals that the accused developed some affair with the wife of the injured. All such facts, taken cumulatively, make it appear that although no plea of provocation has been taken by the defence, yet in the inner mind of the accused-petitioner, such fact might have been working as a motive to cause the injuries. 20. Considering such background facts of the case, this court is of the view that the substantive punishment imposed upon the accused-petitioner is, in fact, in the higher side. Therefore, while the substantive sentence of the accused-petitioner is reduced to the period already undergone during investigation and trial, the punishment in the form of fine is enhanced to Rs. 10,000/- and in default of payment of fine, simple imprisonment for 20 (twenty) days. 21. The accused-petitioner shall surrender before the learned court below within a period of one month from today to serve out the sentence. 22. With the above modifications, this revision petition is partly allowed. 23. Send down the LCR along with a copy of this judgment.