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2019 DIGILAW 866 (GAU)

Md Mirajuddin Ahmed v. State Of Assam

2019-08-01

RUMI KUMARI PHUKAN

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JUDGMENT : Rumi Kumari Phukan, J. I have heard Ms. B Sarma, learned Amicus Curiae appearing for the appellant and also heard Mr. BJ Dutta, learned Additional Public Prosecutor, Assam. 2. The appellant, Md. Mirajuddin Ahmed faced the trial under Section 326/307 IPC read with Section 27(1) of Arms Act before the court of learned Additional Sessions Judge (FTC), Sivsagar and at the conclusion of the trial he was convicted under said section of law and sentenced RI for 7 years and fine of Rs.20,000/- in default RI for six months under Section 326 IPC. He further sentenced to RI for ten years with a fine of Rs.30,000/- in default RI for six months under Section 307 IPC. Further, he was sentenced to RI for seven years and fine of Rs.20,000/- under Section 27(1) of the Arms Act in default RI for three months. 3. The prosecution case in a nutshell is that on 05.02.2014 at the evening hour at about 8.15 pm while Asifur Rahman was waiting near the Employment Exchange of Sivsagar along with three friends having conversation, suddenly the accused person arrived at that place and after some conversation between the parties the accused suddenly pull up his pistol and made a gunshot upon Asifur Rahman, as a result of which he sustained gun injury at his legs. People gathered there apprehend the accused along with the pistol. Police had also arrived and the injured was shifted to AMCH, Dibrugarh and gun was seized from him. On the facts, an ejahar was lodged by his brother on 06.02.2014 and on the basis of which Sivsagar PS Case No.152/2014 under Section 326 (307) IPC read with Section 25(a)/27(2) Arms Act was made. As accused was apprehended so he faced the trial from behind the bar. 4. Necessary charges under the aforesaid section of law was framed against the accused person and he denied the charges. 5. The prosecution examined 12 witnesses to substantiate the charge and defence examined none. Plea of defence is of total denial. The accused person's statement was recorded under Section 313 Cr.P.C. wherein he has also denied all the accusation against him. 6. At the conclusion of the trial, the learned trial court found and held the accused guilty and convicted him as mentioned above by its order dated 14.03.2017. Plea of defence is of total denial. The accused person's statement was recorded under Section 313 Cr.P.C. wherein he has also denied all the accusation against him. 6. At the conclusion of the trial, the learned trial court found and held the accused guilty and convicted him as mentioned above by its order dated 14.03.2017. Present appeal is preferred challenging the legality and validity of the above findings of the trial court. 7. The learned Amicus Curiae, Ms. Sarma submitted that the prosecution case rests on the sole evidence of the victim which cannot be relied upon inasmuch as his own friends (three in number) who were along with him at the time of occurrence have not supported his evidence and all other witnesses are hear say witnesses and hence, the finding of the trial court solely on the basis of the victim is not proper and liable to be interfered into. In this context, the leaned Amicus Curiae has pointed out the discrepancy in the evidence on record and submitted that none of the witnesses has supported the evidence of PW-2. On the other hand, it is also contended that the evidence is also not conclusive that the accused person inflicted bullet injury upon the victim and the armour/PW-12 has also failed to prove that the aforesaid seized arms was used in commission of the offence. Over and above it is stated that there was no earlier enmities between the parties so as to cause death of the informant by such vigorous attempt but it is a result of altercation between the parties and it is a mitigative circumstances against the accused appellant which is to be considered. 8. The learned counsel for the respondent, Mr. Dutta has however submitted that there being no any other reason what so ever for false implication of the accused appellant on the part of the injured, his evidence cannot be discarded. The other evidence emerged against the accused cannot be discarded. It was the accused person, who inflicted such grievous injury to the victim which is also supported by the medical officer examined by prosecution. From the conjoint reading of the Medical Officer as well as the armour it reveals that injured sustained is bullet injury and the accused has been rightly held guilty for the offence by the learned trial court which calls for no interference, it contends. 9. From the conjoint reading of the Medical Officer as well as the armour it reveals that injured sustained is bullet injury and the accused has been rightly held guilty for the offence by the learned trial court which calls for no interference, it contends. 9. Pursuant to the submission, this Court also appreciates the evidence on record and the appreciation made by the trial court. 10. The evidence of the victim (PW-2) which is crucial for the prosecution. According to him while he was sitting with his three friends Sono Singh/PW-10, Sonu Ali/PW-9 and Dipu Thakur/PW-8 near the Employment Exchange, Sivsagar then the accused suddenly came and took out the pistol and fired twice upon the accused person which hit his thigh area. His friends fled away from the spot and shouted for help. At that point of time police arrived at the spot and apprehended the accused. He was taken to the nearby hospital and thereafter shifted to AMCH, Dibrugarh for proper treatment wherein he was hospitalized for 22 days. This is the sum and substance of the evidence of the victim person. In cross-examination, he has admitted that he has no enmities with the accused person and denied the suggestion that he misbehaved with the accused and his girl friend, who went there to drop his girl friend. 11. The Medical Officer, PW-3, who examined the PW-2 has found one entry wound on the middle aspect of left thigh and one exit wound on the posterior aspect of left thigh and the injuries were grievous in nature. It appears that the evidence of PW-2 is substantially supported by the Medical Officer on the point of injury and the evidence of Medical Officer obviously indicates that it was a gun injury. 12. The another important witness is PW-4, who happened to arrive at the place of occurrence immediately hearing the commotion and found the accused with a pistol in his hand and he was also informed by the PW-2 that the accused made a gun shot at him resulting injury at his thigh. According to PW-4, the accused was apprehended by the people and police also arrived and the aforesaid pistol was recovered from him and seized, exhibit-3. So the evidence of PW-4 is crucial inasmuch as he arrived at the place of occurrence immediately and he was also reported by the PW-2 all about the incident. According to PW-4, the accused was apprehended by the people and police also arrived and the aforesaid pistol was recovered from him and seized, exhibit-3. So the evidence of PW-4 is crucial inasmuch as he arrived at the place of occurrence immediately and he was also reported by the PW-2 all about the incident. The evidence of PW-1, PW-5, PW-6 and PW-7 although are not eye witness to the occurrence but they arrived at the place of occurrence after the incident and heard that PW-2 sustained injuries on his person in the said incident. All of them also signed the seizure list whereby the police seized the pistol. 13. Now it will be found that the evidence of PW-8, PW-9 and PW-10 happened to be present with the injured has denied to have seen the occurrence for which they were declared hostile but Investigating Officer has proved their statement all about the incident. Even by keeping aside the evidence of these three witnesses it will be found that the evidence of PW2/injured has substantially corroborated by PW-3, PW-4 and PW-12 and PW-1. The victim immediately reported to these witnesses about the occurrence that it was the accused person, who inflicted such injury on his person. There is no denial that the arms were recovered and seized from the possession of the accused person and he failed to disprove the prosecution case on such material aspect. Merely because some of the witnesses did not support the case, the entire case cannot be thwarted, where there is no reason on the part of the injured for false implication of the accused person in any manner, there being no earlier enmities or hostile relation between them. That being the position, I fine no illegality or irregularity in the findings of the trial court while appreciating the matter. 14. In the instant case, the matter was immediately informed to the police and police rescued the victim and the FIR was also lodged on the very next day by PW-1/brother of the injured and PW-2 intimated PW-1 all about the incident. Considering all entirety of the matter, there appears no scope for any false implication of the accused/appellant. 14. In the instant case, the matter was immediately informed to the police and police rescued the victim and the FIR was also lodged on the very next day by PW-1/brother of the injured and PW-2 intimated PW-1 all about the incident. Considering all entirety of the matter, there appears no scope for any false implication of the accused/appellant. Some omission and contradiction is found to have appeared in the case can be ignored as observation and reaction of every person is different and prosecution case succeeded if the entire genesis of the case remain intact and beyond doubt. As it appears that PW-2/victim has no occasion for false implication of the accused person. 15. Taking note of all above, it can be held that the trial court has rightly found and held the accused guilty under the said Section of law but it is considered that as there is no earlier enmities between the parties and the entire incident happened all of a sudden. In fact there was some sort of provocation on the part of the injured when the accused appellant went there to drop his girlfriend, which has triggered the occurrence. Both the accused as well as the injured is of same age i.e. 30 years and out of emotional expansion such incident has happened without there being any pre planned intent to do the harm and this is the mitigating circumstance in favour of the accused. 16. Considering all entirety of the matter and also the facts that the accused is behind the bar since the day of his arrest i.e. on 06.02.2014 sentence is reduced to five years under each Section of law and fine is also reduced to Rs.2,000/- in each Section of law in default RI for one month. Period of detention shall be set of as per law. 17. Appeal is partly allowed as indicated above. 18. Appreciating the assistance rendered by learned Amicus Curiae Ms. B Sarma in conducting the case, Gauhati Legal Service Authority is hereby directed to provide him a sum of Rs.7,000/-(Rupees seven thousand) only as her professional fees. 19. Send down the LCR along with the copy of this judgment.