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2020 DIGILAW 331 (GAU)

Basanta Hazarika v. State of Assam

2020-03-03

MIR ALFAZ ALI

body2020
JUDGMENT : Mir Alfaz Ali, J. 1. Heard Mr. TJ Mahanta, learned senior counsel for the appellants and Mr. H.K. Sarma, learned Addl. Public Prosecutor for the respondent. 2. This appeal is directed against the judgment and order passed by learned Addl. Sessions Judge, Lakhimpur in Sessions Case No. 27(NL)/2009, whereby the learned Sessions Judge convicted the appellant under Sections 147/448/326 IPC read with Sections 149/366/511 IPC and sentenced him to imprisonment for 2 (two) years and to pay fine of Rs. 4,000/- (Rupees four thousand) each with default stipulation u/s. 326 IPC and further imprisonment for 6 (six) months with fine of Rs. 1,000/- (Rupees one thousand) each with default stipulation u/s. 366/511 IPC. The appellants were also sentenced to pay fine of Rs. 500/- (Rupees five hundred) each under Sections 147/448 IPC with default stipulation. 3. As per prosecution case, on 10.01.2009 at about 6.30 in the evening, six accused persons named in the FIR trespassed into the house of the informant by covering their faces with clothes and attempted to kidnap the daughter of the informant When the inmates of the house resisted them, accused Basanta Hazarika inflicted injury to the husband of the informant. It was also stated that the accused Nikhani Bani a assaulted the informant and the other accused persons assaulted all the members of the informant's family and attempted to abduct her daughter Lakhimai Bora. PW-1, Sri Tejamai Bora lodged an FIR, on the basis of which, police registered Bihpuria P.S. Case No. 9/09 u/s. 147/148/149/448/366/511/326/325/34 IPC and on conclusion of the investigation submitted charge-sheet against the present appellants, who eventually stood trial. 4. In course of trial, learned Addl. Sessions judge framed charges against all the appellants u/s. 147/448/366/326 IPC, to which they pleaded not guilty. In order to bring home the charges, nine witnesses were examined by the prosecution. The appellants also examined three witnesses in their defence. On appreciation of evidence, learned Sessions Judge convicted the appellants and awarded sentence as has been indicated above. 5. Aggrieved, the appellants preferred the instant appeal. 6. I have considered the submissions made by the learned senior counsel Mr. TJ Mahanta and the learned Addl. Public Prosecutor, Mr. HK Sarma. Also scrutinized the evidence brought on record. 7. The first witness examined by the prosecution was Tejamai Bora (PW-1), who lodged the FIR. 5. Aggrieved, the appellants preferred the instant appeal. 6. I have considered the submissions made by the learned senior counsel Mr. TJ Mahanta and the learned Addl. Public Prosecutor, Mr. HK Sarma. Also scrutinized the evidence brought on record. 7. The first witness examined by the prosecution was Tejamai Bora (PW-1), who lodged the FIR. She deposed that at about 5 pm on the day of occurrence when her daughter Lakhimai Bora (PW-3) was watching T.V. inside the house, accused Basanta Hazarika, Nikhani Bania and three others entered their house. According to her, except Basanta Hazarika and Nikhani Bania, all the other accused persons covered their faces with clothes. She further stated that all the five accused persons named in the FIR dragged her daughter Lakhimai Bora from the bed and consequently she fell down on the ground. When she tried to resist the accused persons, one of the accused inflicted injury on her leg. Hearing alarm raised by them, her husband (PW-4) came out of the temple. When PW-4 tried to assault the accused persons, the accused Basanta Hazarika gave him a dao blow on his head. According to PW-1, another dao blow fell on the neck of her husband, but she could not notice as to who gave the second blow. The accused persons dragged her daughter to the paddy field. Hearing hue and cry raised by her daughter, the neighbouring people assembled and the accused persons had fled away leaving the victim. During cross-examination, she denied the suggestion put by the defence that her daughter was in relationship with the accused Basanta Hazarika. She also proved her previous statement recorded u/s.164 Cr.P.C. and marked as Ext.-4, which transpires that in her previous statement recorded u/s. 164 Cr.P.C. she had implicated only the appellants Nikhani Bania, Basanta Hazarika and Binit Saikia. 8. The second witness, PW-2, Bornali Bora examined by the prosecution was the granddaughter of PW-1. PW-2 deposed that while she was viewing T. V. with her aunt, Lakhimai Bora at about 5 pm, the accused Basanta Hazarika and Nikhani Bania entered their house. She further stated, that later on the other accused persons also entered their house and dragged Lakhimai Bora. As they raised hue and cry, her grandfather (P W-4) came out from the 'mandir' (temple) and resisted the accused persons from dragging Lakhimai. She further stated, that later on the other accused persons also entered their house and dragged Lakhimai Bora. As they raised hue and cry, her grandfather (P W-4) came out from the 'mandir' (temple) and resisted the accused persons from dragging Lakhimai. The accused persons Basanta Hazarika gave a dao blow to his grandfather and having sustained the injury, he fell down. She further stated that other accused persons assaulted her grandmother. During cross-examination, she (PW-2) stated that she could not say the exact time when the occurrence took place. 9. PW-3, Lakhimai Bora deposed that while she was watching TV. with her niece (PW-2), accused Basanta Hazarika and Nikhani Bania entered their house and caught hold of her by hand and thereafter the other accused persons entered the house. According to her, all the accused persons tried to drag her and when her mother resisted them, accused Nikhani Bania kicked her mother and Basanta dragged her out of the house. PW-3 further deposed, that when her father (PW-4) came out of the temple and tried to resist the accused Basanta Hazarika from dragging her, the accused Basanta Hazarika assaulted her father. According to PW-3, the accused persons dragged her to the paddy field. However, on her request Basanta Hazarika allowed her to come back home. She also stated, that at that point of time her cousin brother Pranab Jyoti also arrived there and she along with Pranab Jyoti took the injured to Dholpur hospital. She also stated to have sustained lacerated injury in course of the occurrence. 10. PW-4, Kumud Bora testified, that while he was performing puja in the 'mandir', heard his daughter calling him 'Baba, Baba'. As soon as he came out of the 'mandir', he saw that accused Basanta Hazarika was dragging his daughter (PW-3). When he tried to resist, the accused Basanta Hazarika gave a dao blow on the left side of his head, a result of which, he fell down. He further stated, that another blow was given by someone, but he could not notice, as to who had given the second blow. It was elicited during his cross-examination that when he (PW-4) was assaulted by accused Basanta Hazarika, Binit Sakia and his children were present there. 11. He further stated, that another blow was given by someone, but he could not notice, as to who had given the second blow. It was elicited during his cross-examination that when he (PW-4) was assaulted by accused Basanta Hazarika, Binit Sakia and his children were present there. 11. PW-5, Dulal Das deposed, that while he was coming from market, he had noticed Basanta Hazarika and Lakhimai Bora having conversation near a bush under the light post. After sometime hearing hue and cry, he came and found Kumud Bora, PW-4, sitting on a "mura" and he was informed by Tezamai (PW-1), that the accused Basanta Hazarika assaulted her husband Kumud Bora. This witness, was however, declared hostile by the prosecution. PW-6 was not an eye witness to the occurrence. According to him, he was not present at the time of occurrence. Having received the information, he immediately came to the house of the informant, but on the way he came to know that the injured was already taken to hospital. PW-6 further stated, that he was informed by PW-1 that Basanta Hazarika assaulted her daughter (PW-3). PW-7 also came later, and met the injured in the hospital, where Tezamai Bora told him that accused Basanta Hazarika assaulted the injured Kumud Borah. 12. PW-8, the doctor, who examined the injured (P W-4) found the following injuries:- "I) stitched wound over fore head. Size about 2 inches. The injury was caused by sharp cutting object and the nature of the injury was simple. (II) Stitched wound over nape of the neck. Size about 3 inches. Fracture of cervical spine." In the opinion of the doctor the injury no. (ii) was grievous and both the injuries were caused by sharp weapon. During cross-examination, he also stated that the injury no. 2 might be caused by falling on a sharp edged substance. 13. Though, three DWs were examined by the accused, their testimony was basically limited to the fact, that the accused Basanta and P W-3 had affairs. They further stated that the relationship between PW-1 and Basanta Hazarika became strained due to Basanta participating in election against PW-1, and therefore, they were not willing to support the relationship of Basanta with P W-3, though, Lakhimai Bora(PW-2) was willing to continue her relationship with the accused. 14. They further stated that the relationship between PW-1 and Basanta Hazarika became strained due to Basanta participating in election against PW-1, and therefore, they were not willing to support the relationship of Basanta with P W-3, though, Lakhimai Bora(PW-2) was willing to continue her relationship with the accused. 14. A dispassionate scrutiny of the oral testimony of PW-1, PW-2, PW-3, PW-4, PW-5, PW- 6 & PW-7 shows, that although P W-1 while deposing in court, mentioned the name of as many as five persons committing the offence, inner previous statement recorded u/s. 164 Cr.P.C., admittedly she implicated only three persons, namely, Basanta Hazarika, Nikhani Bora and Nitul Saikia. She also stated in her evidence, that except Basanta and Nikhani Saikia, the other accused were covering their faces with clothes. However, she has stated nothing as to how could she recognize the other accused, who were covering their faces with clothes. According to PW-6 & PW-7, the PW-1 told them immediately after the occurrence, that Basanta Hazarika assaulted her husband (PW-4). The injured (PW-4), also stated that it was only Basanta Hazarika who assaulted him and did not implicate any other appellant. Thus, from careful scrutiny of the oral testimony of the prosecution witnesses, viz., PW-1, PW-2, PW-3 and PW-4 as well as PW-6 & PW-7, it appears that regarding involvement of the accused/appellant Basanta Hazarika, testimony of all the witness was consistent So far the involvement of rest of the accused/appellants are concerned, apparently the injured himself has not implicated anyone, except Basanta Hazarika. The evidence of PW-6 & PW-7, that immediately after the occurrence, P W-1 told them, that only Basanta Hazarika assaulted the (PW-4), also lent support to the evidence of PW-4, that it was Basanta Hazarika, who assaulted the injured (PW-4). What therefore, crystallizes from the oral testimony of all the six prosecution witnesses is that though, involvement of the accused/appellant Basanta has been proved beyond doubt. However, prosecution evidence regarding the involvement of other accused/appellant does not appear to be worthy of inspiring confidence, in view of glaring inconsistency and the contradictions in the evidence of the prosecution witnesses. 15. All the three witnesses, viz., PW-1, PW-2 & PW-3 have stated, that they had seen accused Basanta giving a single blow to PW-4, causing injury on his head and having sustained the injury on the head, he fell on the ground. 15. All the three witnesses, viz., PW-1, PW-2 & PW-3 have stated, that they had seen accused Basanta giving a single blow to PW-4, causing injury on his head and having sustained the injury on the head, he fell on the ground. PW-4 himself also stated that Basanta had given one blow on his head and he could not say, as to who had given the 2nd blow on the backside of his neck. Though PW-4 received another injury on the nape of his neck including fracture of spine, no one including the injured (PW-4) could say, as to who inflicted the said injury. All of them simply stated that PW-4 also sustained a second injury. The medical evidence shows, that during cross-examination, the doctor opined that the said injury on the backside of the neck might be caused by falling on sharp edged object. Therefore, the possibility of the second injury by falling in course of the occurrence has not been ruled out for the simple reason, that there was none, except Basanta, who evidently did not inflict the 2nd injury. When the injured himself (PW-4) has stated, that he had not seen as to who had caused the second injury, PW-1, PW-2 & PW-3, who were present at the place of occurrence had also not stated as to who inflicted the second injury to PW-4, Basanta cannot be held responsible for the second injury, more particularly when the possibility of the second injury being caused accidentally due to fall could not be ruled out In view of the above evidence of the prosecution witnesses, it is difficult to saddle the accused Basanta Hazarika with the responsibility of causing the second injury, which the PW-4 sustained on the nape of the neck. As already indicated above, prosecution evidence was grossly inadequate to establish the involvement of rest of the appellants, except the appellant Basanta and even the presence of the other appellants has not been proved beyond reasonable doubt. When the presence and participation of the rest of the appellants were not proved and infact, no evidence could be brought on record to establish the formation of any unlawful a assembly, there was no question of any charge u/s. 147/148/149 IPC. 16. When the presence and participation of the rest of the appellants were not proved and infact, no evidence could be brought on record to establish the formation of any unlawful a assembly, there was no question of any charge u/s. 147/148/149 IPC. 16. The PW-4 sustained two injuries, one on his head and the other on the back of the neck, but the prosecution evidence was not conclusive to establish beyond reasonable doubt that the second injury resulting in grievous hurt was caused by the accused/appellant, Basanta Hazarika. When the testimony of the eye witnesses was not conclusive to rope in the accused Basanta Hazarika with the commission of grievous hurt due to the second injury and such injury being caused accidentally due to fall in course of the occurrence has also not been ruled out the accused Basanta could not be convicted u/s. 326 IPC for the injury sustained by PW-4 on the back of his neck. 17. The PW-3, alleged victim Lakhimai clearly deposed that when she was being dragged out of her house, on her request, she was left by accused Basanta and she was allowed to return home. The evidence of the defence witness also suggested that PW-3 had relationship with the accused Basanta, which was not supported by her parents. I find no reason to discard such defence evidence, which is found to have stood the cross-examination. There is no rule of evidence, that defence evidence has to be rejected irrespective of its merit or trustworthiness. Rather, rules of evidence demands that the evidence adduced by prosecution as well as defence are required to be weighed in the same scale. From the evidence of the PW-3, it is abundantly clear that accused Basanta left the P W-3 not because of any external intervention beyond his control, rather on his own volition because of the request of PW-3. Therefore the offence of attempt to kidnap or abduction has also not been conclusively proved. An attempt to commit an offence is an act or a series of act, which leads, invariably to the commission of the offence, unless something, which the doer of the act neither foresaw, nor intended happens to prevent the act." (See Kappula Venkata Rao Vs. State of A.P., AIR 2004 (SC) 1847). An attempt to commit an offence is an act or a series of act, which leads, invariably to the commission of the offence, unless something, which the doer of the act neither foresaw, nor intended happens to prevent the act." (See Kappula Venkata Rao Vs. State of A.P., AIR 2004 (SC) 1847). The evidence brought on record at best established the intention of the accused Basanta to take away the P W-3 forcibly or the preparation to do the offence and nothing more and as such, the offence u/s.365/511 IPC is also not found to have been proved beyond doubt Therefore, having regard to the facts and circumstances of the case and the evidence brought on record, the conviction of the appellants under Sections 147/148/149/326 as well as under Sections 366/511 IPC cannot be sustained. 18. From the medical evidence, it appears that the first injury on the head of P W-4, evidently caused by sharp weapon by appellant Basanta Hazarika was simple in nature and as such, the accused/appellant, namely, Basanta Hazarika alone shall be liable for causing such injuries, inasmuch as, the involvement of other appellants, as indicated above, has not been established beyond doubt, nor the prosecution could prove the formation of any unlawful assembly. The said injury evidently caused by sharp weapon and simple in nature which, made out only an offence u/s. 324 IPC, and as such, he also could not have been convicted u/s. 326 IPC, rather the conviction of Basanta Hazarika ought to have been recorded u/s. 324 IPC. Therefore, accused Basanta Hazarika is convicted u/s. 324 PC for causing hurt voluntarily by sharp weapon. Having modified the conviction of the appellant Basanta, this Court is of the view that sentence imprisonment for the period, which the appellant Basanta Hazarika has already undergone would meet the ends of justice. Accordingly, the accused Basanta Hazarika is sentenced to imprisonment for the period which he has already undergone in jail during investigation, trial and thereafter and to pay fine of Rs. 10,000/-, in default to undergo simple imprisonment for 15 days. 19. Accordingly, the appeal qua the appellant Nitul Bania, Binit Saikia & Putul Bania stands allowed. The appeal qua the appellant Basanta Hazarika stands partly allowed to the extent indicated above. Since the appellants are on bail, the bail bonds with regard to the appellants Binit Saikia, Nitul Bania and Putul Bania stands discharged. 19. Accordingly, the appeal qua the appellant Nitul Bania, Binit Saikia & Putul Bania stands allowed. The appeal qua the appellant Basanta Hazarika stands partly allowed to the extent indicated above. Since the appellants are on bail, the bail bonds with regard to the appellants Binit Saikia, Nitul Bania and Putul Bania stands discharged. 20. The appellant Basanta Hazarika is directed to surrender before the trial court within 2(two) months to pay the fine of Rs. 10,000/- or to serve out the default sentence. On realization, the fine amount shall be paid to the victim, PW-4. 21. Send back the LCR.