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2020 DIGILAW 365 (GAU)

Junti Medhi v. State Of Assam

2020-03-11

HITESH KUMAR SARMA

body2020
JUDGMENT 1. This is an appeal against the judgment and order, dated 08.05.2012, passed by the learned Sessions Judge, Nagaon in Sessions Case No. 223/2005 convicting the appellants under Sections 341/324/34 of the IPC and sentencing them to rigorous imprisonment for 3 (three) years under Section 324 of the IPC finding no requirement for sentence under Section 341 of the IPC 2. I have heard Mr. SC Biswas, learned counsel for the appellant assisted by Mr. B Choudhury as well as Mr. S Das. I have also heard Mr. BB Gogoi, learned Additional Public prosecutor, appearing for the respondent No. 16. 3. I have also perused the impugned judgment and the evidence on record. 4. The fact of the case is that on 20.09.2004, at about 6:30 pm while the injured Thanuram Hira was proceeding through the PWD road, infront of the house of one Sankar Sarma of village Bagalajan, the appellants wrongfully restrained him and struck blows on his person by means of sharp cutting weapon in order to cause his death. The said Thanuram Hira sustained severe injuries on his person and was rushed to the hospital for medical treatment. His son, Kushal Hira examined as PW1, lodged the FIR with the Kampur Police Station which registered a case being No. 108/2004 under Sections 341/326/307/34 of the IPC, investigated into it, collected evidence, and on completion of the investigation, laid the charge-sheet against the appellants under the aforesaid sections of law. 5. The learned court below framed a formal charge against the appellants under Sections 341/324/307/34 of the IPC to which the appellants pleaded innocence, and therefore, the trial commence. 6. During the course of trial, the prosecution examined as many as 10 (ten) witnesses, including the injured, the informant and the Investigating Police Officer. 7. The informant/PW1 is the son of the injured Thanuram Hira (PW50. He deposed that while the occurrence had taken place at about 6:30 pm, on 20.09.2004, he was at his house but left for the place of occurrence after hearing hue and cry and came to know that his father was assaulted. He had found his father in a pool of blood in the courtyard. His father/injured/PW5 was brought to his residence by one Dulal Hira/PW3. His father/injured was then taken to the hospital at Kampur and Nagaon wherefrom he was shifted to Down Town Hospital at Guwahati. He had found his father in a pool of blood in the courtyard. His father/injured/PW5 was brought to his residence by one Dulal Hira/PW3. His father/injured was then taken to the hospital at Kampur and Nagaon wherefrom he was shifted to Down Town Hospital at Guwahati. The further evidence of this witness is that he was told by his father/injured that the appellants had assaulted him causing the injuries. He also deposed that his father/injured told him that he could identify the appellants with the help of the torch light in his hand. 8. The PW5/injured deposed that at about 6:30 pm, on the date of occurrence, while he was returning from the house of one Tileswar Hira by holding a torch light, infront of the house of one Sankar Sarma, three persons restrained him and then he could identify them to be the appellants, and out of them, appellant Narendra was holding a dao, appellant Homeswar was standing by his side and appellant Junti was holding a Khukuri in his hand. He was assaulted by appellant Narendra with a dao in the left side of his face four times. He further deposed that appellant Junti assaulted him by means of a Khukuri and as a result of the assaults inflicted on him, he fell down and the villagers came to the place of occurrence a little after and he was ultimately taken to Kampur hospital for medical treatment and therefrom to Nagaon hospital. Subsequently, he was shifted to Down Town Hospital at Guwahati where he had regained his sense. 9. The evidence of PW5 is most vital in the case, he being the injured as well as the eye-witness. He even identified the appellants with the help of the torch light in his hand. 10. The evidence of PW1/informant appears to be hearsay in nature as his evidence that he had heard about the occurrence from the injured/PW5 is not corroborated by the PW5 himself and as such, the PW1 could not establish the source of his knowledge about the occurrence. Accordingly, as stated above, his evidence is a piece of hearsay evidence only. 11. The PWs 2 and 3 appeared at the place of occurrence later on and they all had heard that the appellants had assaulted the injured/PW5. 12. Accordingly, as stated above, his evidence is a piece of hearsay evidence only. 11. The PWs 2 and 3 appeared at the place of occurrence later on and they all had heard that the appellants had assaulted the injured/PW5. 12. The PW4 has not implicated the appellants at all with the commission of the alleged offence as he came to know about the occurrence only after 3 (three) days. 13. The PW6 is the daughter of the injured, who appeared at the place of occurrence later on and did not witness the occurrence. She has adduced evidence about the injuries sustained by her father/injured/PW5 and his treatment at the hospital as well as the fact that she heard that the appellants had caused the injuries to her father/injured. 14. The PW7 also did not see the occurrence. He only heard about the occurrence when he hcame to the place of occurrence. 15. The PW8 did not even hear that the appellants had committed the crime. What he had heard is that somebody has assaulted the injured/PW5. 16. The PW9 is a witness to the seizure vide Ext. 2 by which the torch light and the dao were seized by the police from the house of the appellant Junti. 17. The PW10 is the Investigating Police Officer, who deposed about the various stages of investigation of the case from receipt of the FIR till completion of the investigation and laying of the charge-sheet against the appellants. 18. From the evidence on record, particularly the evidence of PW5/injured, it appears that he is not only the injured, but he could also identify the assailants in the place of occurrence with the help of the torch light in his hands. The appellants being known to the injured from before, this is not a case of mistaken identity of the appellants by him. This court has noticed one important fact that the medical report of injury of PW5 has not been produced and exhibited by the prosecution in evidence. The Investigating Police Officer, examined as PW10, has made it clear that he did not collect any medical report in respect of the injured. This court has noticed one important fact that the medical report of injury of PW5 has not been produced and exhibited by the prosecution in evidence. The Investigating Police Officer, examined as PW10, has made it clear that he did not collect any medical report in respect of the injured. But, the fact remains that even if the medical report would have been produced, then also it could have been considered by this court as an opinion only and when there is a conflict between the ocular testimony and the medical evidence, naturally the ocular testimony prevails. However, the evidence of the injured is that appellant Narendra had inflicted dao blows on his person and appellant Junti had inflicted blows on his person with a Khukuri. It is a common knowledge of all of us that a dao and khukuri are sharp weapons which can cause cut injuries, penetrating or otherwise in nature. In the absence of any medical evidence, the unassailed ocular testimony in respect of the injuries sustained by the injured/PW5 has to be relied upon. This court is also mindful of the fact that the witnesses, who appeared at the scene of occurrence, immediately after the occurrence, had also noticed injuries on the person of the victim/PW5. His treatment at Kampur PHC first, then at Nagaon Civil Hospital, and finally, at Down Town Hospital at Guwahati speaks volume of the nature of injuries he sustained. Had it been simple injuries, lacerated or bruises or of other light nature, there would not have been any occasion to refer him to the hospital at Guwahati. Such facts of his treatment at various hospitals remain unassailed and undisputed during the entire cross-examination of the defence. 19. However, this court has noticed from the judgment of the learned trial court that the appellants were acquitted of the charge under Section 307 of the IPC holding that no common intention could be gathered from the evidence on record to hold that the appellants had intended to cause death of the injured. 20. Considering the nature of the injuries, as appears from the ocular testimony on record and the consistent evidence as regard the weapon used in inflicting the injuries, this court is not inclined to interfere with the decision of the learned court below that the appellants Junti and Narendra had inflicted the injuries to the PW5. 21. 20. Considering the nature of the injuries, as appears from the ocular testimony on record and the consistent evidence as regard the weapon used in inflicting the injuries, this court is not inclined to interfere with the decision of the learned court below that the appellants Junti and Narendra had inflicted the injuries to the PW5. 21. This court is conscious of the fact that PW5 himself has not ascribe any role in inflicting injuries on his person by appellant Homeswar and his evidence shows that appellant Homeswar was standing by the appellant Narendra Medhi. However, the learned court below has categorically indicated in the impugned judgment that no common intention of the appellants was there, and if it is so, the appellant Homeswar Hira cannot be roped in with the commission of the alleged offence. The specific evidence is against the appellants Junti Medhi and Narendra Medhi. 22. Therefore, the order recording conviction of appellant Homeswar Hira is set aside. He be set at liberty forthwith. His bail bond, if any, stands discharged. So far the order of conviction recorded in respect of appellants, Junti Medhi and Narendra Medhi are concerned, the same appears to have been based on evidence on record, requiring no interference. 23. The learned counsel for the appellants has submitted that the sentence imposed upon the appellants is in the higher side and not proportionate to the offence, and therefore, a lenient view may be taken in respect of the punishment. 24. Considering the evidence on record and the nature of the offence, this court is of the view that fine, if imposed in lieu of substantive sentence will meet the ends of justice. Accordingly, the appellants Junti Medhi and Narendra Medhi are sentenced to pay a fine of Rs. 20,000 each and in default of payment of fine, simple imprisonment for 3 (three) months each. The substantive sentence imposed by the learned court below in respect of the said appellants is set aside. 25. The appellants, Junti Medhi and Narendra Medhi are directed to appear before the learned court below within 45 (forty five) days from today with a certified copy of this judgment to undergo the sentence. 26. Send down the LCR along with a copy of this judgment.