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2019 DIGILAW 720 (GAU)

Jagadish Mondal v. State of Assam

2019-06-11

RUMI KUMARI PHUKAN

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JUDGMENT : Rumi Kumari Phukan, J. 1. Present revision is preferred against the judgment and order, passed by the learned Session Judge, Barpeta, in Criminal Appeal No. 16(A)/2008, whereby, by its judgment and order dated 25.05.2009, the learned Sessions Court has affirmed the judgment and order of the learned Chief Judicial Magistrate, Barpeta in GR Case No. 1340/2000, whereby the present accused persons are convicted by the learned Chief Judicial Magistrate, under Section 325/34 IPC and sentenced each of the accused persons to undergo rigorous imprisonment for six months with fine of Rs. 300/- each, in default, simple imprisonment for another three months. 2. I have heard Mr. K. Baruah, learned counsel for the petitioners and Mr. D. Das, learned Additional Public Prosecutor, Assam appearing for the State. 3. Necessary factual matrix that emerges from the record is that on 05.10.2000, at about 9.30 am, there was a quarrel between the parties on the matter of destruction of cultivation of Moran Mandal and other three family members of Moran Mandal, namely, Parbati Mandal, Pradip Mandal and Jyotshna Mandal. In the said incident, four persons, named above, have sustained injuries and the informant, namely, Krishna Kt. Bhowmic, lodged an FIR on 07.10.2000, appraising the entire incident. The injured were taken for medical treatment. 4. On receipt of the aforesaid FIR, Sarthebari Police Station registered a case under Section 341/325/34 IPC against the accused persons and after completion of the investigation; chargesheet was submitted against them under the said sections of law. 5. The accused persons stood in the trial, denied the charge famed under Section 325/34 IPC. Prosecution examined eight witnesses and defence examine none. The plea of defence is of total denial. At the conclusion of trial, the learned trial court convicted the accused persons under Section 325/34 IPC and sentence them for imprisonment as aforesaid. The appeal preferred was also dismissed by the learned appellate court affirming the judgment of the learned trial court. 6. Challenging the legality and validity of the order passed by the learned court below, the present revision has been preferred on the ground that the learned court below has failed to appreciate the matter in proper perspective of law and there is absolutely no evidence to prove the offence under Section 325 IPC. 6. Challenging the legality and validity of the order passed by the learned court below, the present revision has been preferred on the ground that the learned court below has failed to appreciate the matter in proper perspective of law and there is absolutely no evidence to prove the offence under Section 325 IPC. Moreover, the learned trial court has failed to take note of factum of hostile relation between the parties and the quarrel between the parties on the fateful day. That apart, the prosecution has not been able to explain the delay of two days in filing the FIR. 7. I have heard the submission of the learned counsel for the petitioner, who has appraised this Court about the evidence that was adduced by the prosecution and submitted that the prosecution out of four injured persons only two injured have been examined. Attention has also been drawn to the evidence on record as well as the evidence of the Medical Officer and also the quarrel between the parties on the fateful day. 8. I have also heard the submission of the learned counsel for the State. 9. On careful examination of the evidence on record it is to be noted that the FIR was filed by the PW-1 with the allegation of assault upon the four injured persons by the accused persons with weapons in their hand. According to the informant/PW-1, although he was not present at the place of occurrence, but on his return he found those injured persons with injury on their persons and they appraised that it was the accused persons, who assaulted them. On query made by PW-1, he was appraised by the persons, who happened to be present at the place of occurrence i.e. Sridam Mandal (PW-2), Anil Kr. Sarkar (PW-5) and Polan Mandal (PW-6) that the accused persons has inflicted such injury upon those injured persons. Out of the aforesaid four injured persons, only two injured, namely, Parbati Mandal (PW-3) and Jyotshna Mandal (PW-4) have been examined. It is to be noted that although the defence has stated that they were assaulted by the accused persons, namely, Jagadish Mandal and Manik Mandal and as a result of which they sustained some injuries, but they have not mentioned the nature of injury they sustained. Their simple assertion was that they were assaulted by the accused persons and thereafter they were taken to hospital. Their simple assertion was that they were assaulted by the accused persons and thereafter they were taken to hospital. On the other hand, the Medical Officer (PW-7), who examined the injured, Parvati Mandal, although has stated that he found some injuries on the person of Parvati Mandal, but in cross-examination he has clarified that the injuries sustained by her is not grievous one. So from totality of evidence of these two injured coupled with the evidence of Medical Officer it can be held that they sustained simple injury on their person. 10. It is found that PW-5 and PW-6 have stated that they arrived at the place of occurrence only after the incident and came to know that the accused Manik Mandal and Jagadish Mandal assaulted Jyotshna. From their evidence, it emerges that there was serious dispute between the parties regarding the drainage of water from the boundary of Jagadish Mandals paddy field. All these witnesses have also specifically stated that there was mutual marpit between the parties for the said incident. In such backdrop, no serious culpability can be attributed to the accused person for the incident. 11. The evidence so far recorded do not reflected that the accused persons with ill motive attacked and assaulted them but because of the dispute pertaining to release of water from paddy field there happens a mutual fight between the parties. Although all four injured were not examined by prosecution, but from the evidence of the two injured, namely, Parvati (PW- 3) and Jyotshna (PW-4) a case of simple injury is made out. In absence of any medical evidence regarding grievous injury, the accused can be held guilty under Section 323 of the IPC. Thus, the findings of the learned trial court as well as the learned appellate court regarding grievous injury under Section 325 of the IPC is erroneous which is not supported by any medical evidence. 12. Taking note of all above, while maintaining the conviction of the accused persons under Section 323/34 IPC and also taking note of old pendency of the matter, each of the accused persons is hereby sentenced to pay a fine of Rs. 500/- each, in default, to suffer simple imprisonment for three months. 13. The fine aforementioned will be deposited before the trial Court within two months from today. 14. Send down the LCR.