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2019 DIGILAW 713 (GAU)

Abdul Malek Ahmed v. State of Assam

2019-06-10

RUMI KUMARI PHUKAN

body2019
JUDGMENT : RUMI KUMARI PHUKAN, J. 1. Heard Mr. HRA Choudhury, learned Senior Counsel assisted by Mr. Azad Ahmed for and on behalf of the petitioner and Mr. D. Das, learned Additional Public Prosecutor for and on behalf of the respondent/State. 2. The present revision petition has been preferred against the concurrent findings of the learned trial court as well as the learned appellate court, whereby the present petitioner has been convicted by the learned trial court under sections 448/326 IPC and sentenced to simple imprisonment for three months under section 448 IPC, and sentenced to undergo S.I. for 3 (three) years and to pay a fine of Rs. 5,000/-, in default to undergo S.I. for one year under Section 326 IPC. The sentence was directed to run concurrently. 3. The petitioner preferred an appeal being C.A. No. 1(2)/2010 before the learned appellate court against the judgment and order of the learned trial court, which was dismissed by the learned appellate court. Hence, this revision. 4. The factual matrix of the case is that an ejahar was lodged by one Jahir Ali on 10-06-2004 to the effect that on that day at about 2 pm, the accused Abdul Malek Ahmed by entering into the house of his uncle Dayal Sk. inflicted a grievous stab injury on his stomach by a dagger, as a result of which, he sustained serious injury, hence the injured was taken to the hospital and was treated therein. On the basis of the ejahar, Bilasipara P.S. Case No. 93/2004 was registered under sections 447/326/307/34 IPC. 5. On receipt of the ejahar, police started investigation, prepared the sketch map, and collected the medical report and at the conclusion of the investigation, submitted charge-sheet against the accused/petitioner Abdul Malek Ahmed under sections 448/326/307 IPC. Other accused persons named in the FIR were not sent up for trial. The case was committed to the court of Sessions being the offence triable by Sessions court. 6. The accused/petitioner stood the trial and denied the charges that were framed against him under sections 448/326/307 IPC. Prosecution examined eight witnesses in support of the case including the medical officer and investigating officer and at the conclusion of the trial, learned trial court convicted the accused petitioner under sections 448/326 IPC and acquitted him from the charge under section 307 IPC. Prosecution examined eight witnesses in support of the case including the medical officer and investigating officer and at the conclusion of the trial, learned trial court convicted the accused petitioner under sections 448/326 IPC and acquitted him from the charge under section 307 IPC. Against the order of conviction an appeal was preferred, which was dismissed by the learned trial court. 7. Assailing the judgment of the learned appellate court, Mr. Azad Ahmed, learned counsel for the petitioner submitted that there is a great confusion whether the injured person mentioned in the FIR is the same person that has been examined in course of the trial. Referring to the charge-sheet, it has been submitted by Mr. Ahmed, learned counsel that one Dayal Sk., son of Akbar Hussain has been named in the charge-sheet, whereas, another person named as Dayal Sk., son of Gazi Rahman has been examined by prosecution as a witness. Further it has been contended that the person named in the charge-sheet is totally a different person as his address is also different apart from the name of his father. That being so, according to the learned counsel for the petitioner the case cannot rest upon such testimony of the PW-2, who is stated to be an injured person in the present case. 8. Over and above, it has also been contended that the evidence of PW-1, PW-3 and PW-4 cannot be accepted in view of the contradictions on different aspect. It has been pointed out that PW-2 (the injured) stated before the I.O. at the time of the incident he was sleeping with PW-3, but the same was not stated during the course of trial. Similarly it has also been submitted that the evidence of the PW 2 that he sustained severe injury in the said incident cannot be acted upon because the I/O, who immediately visited the place of occurrence after few hours of the occurrence, found no stain of blood in the room of the injured. That apart, it has also come out from the mouth of the witnesses that there was no separate room, where the injured was sleeping at the time of occurrence, which is shop premises of injured. 9. That apart, it has also come out from the mouth of the witnesses that there was no separate room, where the injured was sleeping at the time of occurrence, which is shop premises of injured. 9. It is also contended that regarding the medical report that has been exhibited by PW-7, the prosecution has not been able to give a clear picture as to how it has come on record and the prosecution is under the obligation to prove the same in view of the fact that the name of the victim appears to be different in this case, and it was not explained by the prosecution. It has also been pointed out that there is neither any mention about the GD entry in the medical report, nor in the report of the I.O. at any stage, which is doubtful one. 10. I have considered the submission of the learned counsel for the petitioner, who submitted at length pointing out to the statements of the witnesses examined by the prosecution, which according to him, is not enough to prove the guilt of the accused beyond all reasonable doubt. 11. Learned Addl. P.P., Mr. Das has contended that the evidence on record that has been examined, coupled with the factum narrated in the FIR and the medical report all indicated that it was the PW-2 (the injured) Dayal Sk., son of Gaji Sheikh who was the injured in the present case. Only because the name of the injured is wrongly mentioned in the charge-sheet, itself cannot be a ground to thwart the prosecution case. Evidence of several witnesses has been read out before this Court to submit that in fact other witnesses including the victim himself has clearly stated that the name of the injured is Dayal Sk., S/o. Gaji Sheikh and he has also been examined by the I.O. during the course of trial. That apart, the medical officer/PW-7 has also stated that he examined the injured on the same day of the occurrence and the said person is Dayal Sk., son of Gazi Sk. But however, his father's name is wrongly mentioned in chargesheet. 12. Regarding the contradiction and omission etc, it has been submitted by the learned Addl. That apart, the medical officer/PW-7 has also stated that he examined the injured on the same day of the occurrence and the said person is Dayal Sk., son of Gazi Sk. But however, his father's name is wrongly mentioned in chargesheet. 12. Regarding the contradiction and omission etc, it has been submitted by the learned Addl. P. P. that such omission or exaggeration is natural and in the present case, however, there is no such material contradiction on the part of any witness so as to raise doubt over the authenticity of allegation. 13. I have duly considered the submission and also gone through the evidence on record, more particularly, the case diary. I have also gone through the impugned judgment and order passed by the learned court below. 14. This Court exercising the revisional jurisdiction has a limited role to play to examine whether there is any illegality or perversity committed by the courts below while arriving at the decision. 15. The first and foremost thing to dispel the doubt about the identity of the victim, I have considered the materials on record including the case diary. 16. The I.O. in his cross-examination has admitted that the injured in the said case was Dayal Sk., son of Akbar Ali and the medical report reveals that the injured was Dayal Sk., son of Gazi Rahman and his address is also different, but the fact remains that the I.O. examined the PW- 2, Dayal Sk. and his statement totally tallied with the facts and circumstances of the case, the incident that has been referred in the FIR, the name of the witnesses and the accused. The same I.O. during the course of investigation also while communicating with the medical officer has also called for the medical report of the said Dayal Sk., son of Gazi Rahman, which reveals from his different forwarding report. The medical officer who examined the PW-2 (the injured) has also found the injury of the nature that has been stated by the PW-2 himself. 17. The medical officer who examined the PW-2 (the injured) has also found the injury of the nature that has been stated by the PW-2 himself. 17. Taking note of all the above, it can safely be held that mentioning the name of the father of the accused including the address in the charge-sheet is a mere slip on the part of the I.O. and this aspect can no more be taken as a doubtful, as to the identity of the injured person and for such mere lapse on the part of the I/O, if any, the entire prosecution case cannot be thrown overboard. 18. It is to be noted that the said aspect was also very much contested by the petitioner's side by way of cross-examination of the witnesses as well as the I.O and there is nothing to show that the PW- 2 is not the injured in the present case. 19. Coming to the next point of argument it can be seen that the learned trial court has examined and appreciated all the evidence on record including the cross-examination part. It is discernible that out of the six witnesses, apart from the M.O. and the I.O., three witnesses have categorically supported the version of injured. The PW- 5 and PW- 6 although they had not seen the occurrence, but the rest of the witnesses PW- 1, 3 and 4 have categorically submitted that the person that was injured in the incident was PW-2. According to PW-2 the injured Dayal Sk. while he was sleeping in a different room, at the time the accused person entered into his room and stabbed into his abdomen with a dagger as a result of which the intestinal part of his stomach came out and his attempt to catch the accused failed. The evidence of PW-1, PW-3 and PW-4 reveals that hearing hue and cry of the PW-2 they arrived at the place of occurrence. PW-1 saw the accused fleeing away from the place of occurrence with a dagger in his hand. While PW-3 stated that he was told by PW-2 that it was the accused who inflicted the aforesaid injury to him. Although PW- 1 and PW-3 did not see the entire occurrence, but there is sufficient evidence to suggest the complexity of the accused person. 20. While PW-3 stated that he was told by PW-2 that it was the accused who inflicted the aforesaid injury to him. Although PW- 1 and PW-3 did not see the entire occurrence, but there is sufficient evidence to suggest the complexity of the accused person. 20. The evidence of PW-4, the informant, is relevant, who is stated to be an eye witness to the occurrence. According to her, the occurrence took place in her house. She stated that while she entered the room, where the victim was sleeping in a cot, she saw the accused giving blow on the abdomen of Dayal Sk. with a dagger. Hearing hue and cry raised by her, her husband (PW-1) arrived at the place of occurrence, but the accused managed to fled away. It also clarified that the house of Dayal Sk, the victim is situated near the house of PW-4. 21. Although the learned counsel for the petitioner has tried to impress upon the court by saying that there is some contradiction in the statement of PW-1, PW-3 and PW-4 given before the investigating officer regarding the incident, but on examination of the same, it is found that there is no such material deviation in the statement of those witnesses, except the fact that they have narrated the incident in detail during the course of trial, and their statement before the I.O. was not recorded in detail. The sum and substance of the statement recorded before the I.O. and in course of trial remained the same. 22. The evidence of the medical officer reveals that he examined the PW-2 Dayal Sk. S/o. of Gaji Rahman and found the following injuries: "1. Penetrating injury in the abdomen just above the umbilicus. (1) Transversely : Size after wound:- 1" X ½" x 5" There is prolapse of the loops of intestine through the external injury. Operation was done under G.A. on the same date and per-operative findings of intra-abdomen. There is haemoperitorim with perforation of the transverse colon. Repair of the perforation and abdomen wound is done." 23. Obviously the medical evidence reflects that the injury sustained by PW-2 is of grievous in nature and the learned trial court as well as the appellate court has elaborately dealt with the evidence on record in proper perspective. There is haemoperitorim with perforation of the transverse colon. Repair of the perforation and abdomen wound is done." 23. Obviously the medical evidence reflects that the injury sustained by PW-2 is of grievous in nature and the learned trial court as well as the appellate court has elaborately dealt with the evidence on record in proper perspective. The learned trial court also opined that the offence is of serious nature and the victim narrowly escaped from death. However, both the courts acquitted the accused/petitioner from the charge under section 307 IPC and convicted him under sections 448/326 IPC. There is no illegality and impropriety in the aforesaid findings of the courts below, which may call for interference. 24. While maintaining the conviction that has been passed by the learned courts below and taking note of the fact that the accused was of tender age at the time of occurrence, i.e. 18 years according to the forwarding report, and also that there was business rivalry between the parties, his sentence is reduced to 2(two) years from 3 (three) years under section 326 IPC, without any modification in the fine amount. The period of sentence already undergone by the accused in jail shall be set off against the substantive sentence. 25. Revision is allowed to the extent indicated above. 26. The accused petitioner is directed to surrender before the learned trial court within a period of 2 (two) months from today. 27. Return the LCR.