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2024 DIGILAW 714 (CAL)

Rakesh Kumar v. State

2024-04-03

DEBANGSU BASAK

body2024
JUDGMENT : Debangsu Basak, J. 1. The appeal is directed against the judgment of conviction dated July 08, 2022 and the order of sentence dated July 11, 2022 passed by the learned Additional Sessions Judge, North and Middle Andaman, Mayabunder in Sessions Case No.03 of 2021, Sessions Trial No.17 of 2021. 2. By the impugned judgment of conviction, learned Trial Court found the appellant guilty of offence punishable under section 308 of the Indian Penal Code, 1860. By the impugned order of conviction, the learned Judge sentenced the appellant to undergo rigorous imprisonment for three years. 3. Learned advocate appearing for the appellant submits that, the ingredients of section 308 of the Indian Penal Code, 1860 were not established at the trial. He draws the attention of the Court to the injuries suffered by the victim. He refers to section 308 of the IPC, 1860. He submits that, intention to inflict hurt for culpable homicide not amounting to murder was not established at the trial. In support of his contention, he draws the attention of the Court to the depositions of various prosecution witnesses and the injury report marked as exhibits at the trial. 4. He therefore submits that, the impugned judgment of conviction and the order of sentence should be reversed. 5. Learned advocate for the State submits that, the prosecution was able to establish the charge under section 308 of the IPC, 1860 by cogent evidence beyond reasonable doubt. She refers to the depositions of various prosecution witnesses including the documents marked as exhibits at the trial. 6. Police registered the First Information Report on the basis of a complaint dated March 10, 2020 of prosecution witness (PW-1). On the basis of the first information report dated March 10, 2020, police conducted investigation and submitted the charge sheet as against the accused. Charge against the accused was framed on November 02, 2021 under section 308 of the IPC, 1860. 7. The appellant pleaded not guilty and claimed to be tried in respect of such charge. 8. In order to establish the charge, prosecution examined ten witnesses. Prosecution also relied upon various documents which were marked as exhibits at the trial. On conclusion of the evidence of prosecution, the appellant was examined under section 313 of the Cr.P.C where he claimed to be innocent. He denied examining any defence witnesses at the trial. 9. 8. In order to establish the charge, prosecution examined ten witnesses. Prosecution also relied upon various documents which were marked as exhibits at the trial. On conclusion of the evidence of prosecution, the appellant was examined under section 313 of the Cr.P.C where he claimed to be innocent. He denied examining any defence witnesses at the trial. 9. At the trial, the case of the prosecution was that the appellant, on March 09, 2020 at about 8 PM in the house of the victim, assaulted the victim with wooden batton causing her hurt with the intention of committing culpable homicide not amounting to murder. 10. The victim as examined as prosecution witness (PW)-1. In cross-examination in chief, the victim stated that the incident took place at about 8.30 PM on the fateful day. The appellant was standing near a newly constructed shed. When she was trying to close the door of her house, the appellant entered into the room. Appellant wanted to sleep and she requested him to go away from the room. The appellant also stated that his parents did not allow him and again sought permission to sleep in the room. Appellant wanted some drinking water. When the victim gave water to the appellant, he assaulted the victim with a wooden batton. Thereafter, the victim went out of the room to the house of Rajkumar and informed the fact. Thereafter, Rajkumar took the victim to her house. After that, the victim was shifted to hospital. She identified the appellant in Court. She also stated that, she made a statement before the police. She also handed over the wearing apparels to the police. In cross-examination, the victim stated that the appellant did not enter into the house forcefully. 11. PW-2 is the person who took the victim to the hospital. He stated that, there was an incident of assault which took place between two persons on March 09, 2020 at about 8.30 PM at the house of the victim. He identified his signature on the seizure as exhibits 1 and 2. He identified the appellant in Court. In cross-examination, he stated that he did not have personal knowledge about the incident that he was not present at the place of occurrence. 12. PW-3 stated that he knew nothing about the case. He is a seizure list witness, who identified his signature on the seizure list. He identified the appellant in Court. In cross-examination, he stated that he did not have personal knowledge about the incident that he was not present at the place of occurrence. 12. PW-3 stated that he knew nothing about the case. He is a seizure list witness, who identified his signature on the seizure list. He also identified the appellant in Court. 13. A neighbour of the victim deposed as PW-4. He stated that, he knew both the victim and the appellant. He said that, he heard a shout of cry from the house of the victim, reached there and saw blood oozing out from the victim. He identified the appellant in Court. In cross-examination as also in the examination in chief, he stated that he did not have any idea about the case. 14. Another neighbour of the victim deposed as PW-5. He stated that he knew both the victim and the appellant. He stated that, at the time of the incident he was sleeping. He stated that the victim knocked the door and on opening the door, he saw the victim with bleeding injury and blood oozing from her head. He along with his wife took the victim to her house and thereafter PW-2 came and they shifted the victim to the hospital. Victim told that the victim was pouring water at the time when the appellant assaulted her on her head. In cross-examination, he stated that he did not have any personal knowledge about the incident. 15. The wife of the PW-5 deposed as PW-6. She corroborated the statements of PW-5. 16. The Doctor who examined the victim deposed as PW-7. He described the injury suffered by the victim. He described the nature of the injury as dangerous. He tendered the medical examination report which was marked as Exhibit-3. He also tendered the treatment sheet of the victim which was marked as Exibit-4 collectively. He stated that he examined the appellant also and he found no injuries on the appellant. He tendered the medical examination report of the appellant which was marked as Exhibit-5. 17. In cross-examination, the PW-7 stated that the medical report does not show name of the person who assaulted the victim. 18. Another neighbour of the victim deposed as PW-8. He stated that, on March 09, 2020, he heard a noise from the house of the PW-5. 17. In cross-examination, the PW-7 stated that the medical report does not show name of the person who assaulted the victim. 18. Another neighbour of the victim deposed as PW-8. He stated that, on March 09, 2020, he heard a noise from the house of the PW-5. He went to the house of PW-5 with his wife and saw bleeding injury from the head of the victim. He also saw that the appellant was standing there, he took the victim to her house. Thereafter, he and PW-5 took the victim to the hospital. 19. The Inspector Incharge who took up the investigation of the police case deposed as PW-9. He narrated about the course of investigation. He seized offending weapon. He arrested the accused. He tendered various documents which were marked as Exhibits 6 & 7, He also identified the appellant in Court. 20. PW-10 is Sub-Inspector of Police, who recorded the Fardbayan of the victim which tendered in evidence and marked as Exhibit-8. On the basis of such complaint, the First Information Report was drawn by him which tendered in evidence and marked as Exhibit-9. He stated that, he collected the medical examination report of the victim. 21. On conclusion of the evidence of the prosecution, the appellant was examined under section 313 of the Code of Criminal Procedure where he pleaded not guilty and refused to adduce any evidence in support of his defence. 22. By the impugned judgment of conviction, the learned Trial Judge, considered the evidence led by the prosecution, and was pleased to find that the appellant guilty under section 308 of the Indian Penal Code, 1860. 23. As noted above, by the impugned order of sentence, the learned Trial Judge sentenced the appellant three years rigorous imprisonment. Attention of this Court is drawn by the learned advocate of the appellant, to the fact that the appellant underwent incarceration during the investigation as also the trial amounting to 230 days. 24. The evidence led at the trial establishes that, the appellant assaulted the victim by a wooden batton. Victim suffered injuries which were not classified as grievous hurt. Doctor treating the victim in his deposition stated that the injuries were of dangerous nature. Indian Penal Code, 1860 however does not define what a dangerous injury is. Its classified injuries as simple or grievous. 25. Victim suffered injuries which were not classified as grievous hurt. Doctor treating the victim in his deposition stated that the injuries were of dangerous nature. Indian Penal Code, 1860 however does not define what a dangerous injury is. Its classified injuries as simple or grievous. 25. Injury suffered by the victim was obviously not classified as grievous hurt. The victim did not undergo any hospitalization for the prescribed period to make the injuries as grievous hurt. In fact, the victim did not undergo any hospitalization save and except being treated upon the injury. 26. One mitigating circumstance in favour of the appellant is that during the entire episode, he was present at the place of occurrence and did not attempt to flee the place of occurrence. No evidence on record to suggest that the appellant fled the spot after the incident. Prosecution witnesses stated that, the appellant found at the place of occurrence. He did not assault the victim any further. 27. The other mitigating circumstances in favour of the appellant is that he did not enter the room of the victim forcibly. This was admitted to be so by the victim in her cross-examination. 28. There are, in my view, mitigating circumstances in favour of the appellant namely; the nature of the injuries suffered by the victim, the fact that appellant did not attempt to flee away from the spot and that he did not make any forcible entry into the room of the victim. 29. Taking such mitigating circumstances into consideration and the period of incarceration that the appellant underwent during the trial, and taking into consideration the quantum of punishment imposed, I am of the view that interest of justice would be sub-served by treating the period of incarceration as quantum of punishment to be imposed under section 308 of the Indian Penal Code, 1860. In my view learned trial Judge did not consider the mitigating circumstances present while deciding the quantum of punishment to be imposed when Section 308 provides a bandwidth of punishment to be imposed. 30. Impugned judgment of conviction is upheld. Impugned order of sentence is modified to the extent as indicated above. The Court is informed that the appellant obtained suspension of sentence during pendency of the appeal. 31. The appellant is hereby set at liberty. 30. Impugned judgment of conviction is upheld. Impugned order of sentence is modified to the extent as indicated above. The Court is informed that the appellant obtained suspension of sentence during pendency of the appeal. 31. The appellant is hereby set at liberty. However, the subsisting bail bond of the appellant shall remain in force for six months from date in terms of Section 437 (A) of the Code of Criminal Procedure. 32. CRA(SB)/3/2023 is disposed of. 33. Let the trial court records be sent down immediately along with copy of this judgment and order.