1
IN THE COURT OF THE ADDITIONAL SESSIONS JUDGE (FTC) AT SILCHAR.
Present: - Sri S. K. Dhar,
Addl. Sessions Judge (FTC),
Cachar, Silchar.
CRIMINAL APPEAL No. 01/13
1. Md. Habibur Rahman.
2. Md. Talibur Rahman.
……….Appellants/Accuseds.
-Vs-
The State of Assam.
………..
Respondant/Compltt.
Date of hearing: - 08-01-15
Date of judgment: - 21-01-15
ADVOCATE APPEARED
For the appellants: - Mr. P. Deb.
For the respondent: - Mr. P. Deb, Ld. Addl. P.P.
JUDGMENT
1.
Aggrieved by and dissatisfied with the judgment of conviction and
sentence dated 14-12-12 passed by the court of ld. Assistant Sessions Judge
No. 2, Cachar, Silchar, in S.C. (Sessions Case) No. 68/09 the accused
persons/convicts/appellants have preferred this instant appeal.
2.
The brief of the prosecution case of the S.C. No. 68/09, as unfolded in
the trial is that, on 26-05-05 at about 10-30 at night the informant Fakrul
Islam Mazumder (examined as P.W. 3), Nasir Uddin (P.W. 1), Nazrul Islam
(P.W. 2), Sadiqur Rahman (P.W. 4) and Ripon (P.W. 6) were returning home
from the house of one Munni Begum. They were on foot. Nazrul (P.W. 2)
and Sadiqur (P.W.4) were proceeding ahead of the rest. When they reached
near the Madhurbond Hazari Mosque/house of the accused persons; the
appellants along with one Hifzur, armed with lathi/ dao, attacked them on
their way by restraining them on the P.W.D road. Accused Habibur and
Talibur dealt dao blow on the head of Nazrul and caused grievous injuries on
his head.
(i) It is further case of the prosecution that hearing scream when the
(P.W.3) came forward and tried to resist the accused persons from assaulting
Nazrul, the accused persons also assaulted him with dao causing injury on
his left thumb, left hand and right leg. It is also alleged that the accused
persons assaulted all of them by lathi. As a result of injury Nazrul fell down
on the road and there was severe bleeding from his injury.
Contd….P/2.
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(ii) It is further more case of the prosecution that all the injured
persons immediately went to the Silchar Sadar P.S. The police forwarded
them to the Silchar Medical College Hospital where doctor examined and
treat them.
3.
Alleging as above Fakrul Islam Mazumder (P.W. 3) lodged a written
ejahar (proved and marked as Ext. 1) on the very following day of the
occurrence. On that basis a regular police station case was registered,
investigated into by the I.O. and upon completion of investigation charge
sheet was filed by the I.O. (P.W. 7) against the present appellants and
accused Hifzur (who has been acquitted of the charges by the impugned
judgment) U/S 341/323/324/326/307/34 I.P.C. The charge sheet was
forwarded to the court of ld. C.J.M. The ld. C.J.M. made over the case
record to the court of ld. Addl. C.J.M. Receiving the case record on transfer
for disposal the ld. Addl. C.J.M. took cognizance of offence and issued
process to procure the attendance of the accused persons.
4.
In due course of time the accused persons entered into appearance.
They were furnished with copies of the prosecution documents U/S 207
Cr.P.C. and considering the offences involved in the case to be triable
exclusively by the court of Sessions the ld. Addl. C.J.M. committed the case
record to the court of Sessions. The ld. Sessions Judge, however, made over
the case record to the court of the Assistant Sessions Judge No. 2 for
disposal.
5.
The ld. trial court receiving the case record on transfer for disposal
framed charges U/S 341/323/324/326/307/34 I.P.C. against all the accused
persons. The accused persons pleaded not guilty to the charges framed
against them when the particulars of offences were read over and explained
to them.
6.
To bring home the charges against the accused persons prosecution
side examined in all nine P.Ws and exhibited some document. Defence side
took full scope for cross examination. Upon closure of prosecution evidence
the statements of the accused persons were recorded U/S 313 Cr.P.C.
wherein the accused persons took the plea of total denial and innocence and
also declined to adduce evidence in defence. Thereafter the ld. trial court
heard argument advanced by both the sides and by passing the impugned
judgment acquitted the accused Hifzur from all the charges but convicted the
appellants U/S 324 I.P.C. only and sentenced them each to R/I for one (1)
year and a fine of Rs. 10,000/- each in default to R/I for another three (3)
months each. Aggrieved by and dissatisfied with the impugned judgment of
conviction and sentence the appellants have preferred this appeal on various
grounds narrated in the memo of appeal. No cross appeal has been filed
either by the informant/aggrieved persons or the State of Assam.
7.
The appeal was admitted for hearing. Lower Court’s record was
Contd…P/3.
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called for and notice was issued to the respondent. L.C.R received.
Respondent also appeared. I have gone through the record including the
lower court’s record and also heard argument advanced by both the sides’ ld.
Advocates.
8.
For just disposal of this appeal the following point is taken up for
determination:Whether the impugned judgment of conviction and sentence is
sustainable in law as well as in fact?
9.
Discussion, decision and reasons there for:-
(a)
During hearing of the appeal the ld. Addl. P.P. supported the
impugned judgment of conviction and sentence of the appellants and
submitted for upholding the same. On the other hand the ld. Advocate for the
appellants submitted that the evidence and materials in the case record do
not justify the conviction and sentence impugned in this appeal. According
to him non examination of material witness Munni Begum by the
prosecution, contradictions in the testimonies of the P.Ws, delay in lodging
the Ext. 1, omission on the part of the police to make G.D.E. on the very
night of the occurrence, discrepancies in the date of examination of the
injured persons go to show that the prosecution has failed to prove its case
beyond all reasonable doubt and as such the appellants are entitled to be
acquitted.
(b) As per Ext. 1 the occurrence took place at 10-30 p.m. when the
P.W. 1, 2, 3, 4 and 6 were returning home from the house of one Munni
Begum. The place of occurrence is over P.W. D road near the Madhurbond
Hazari Mosque and house of the accused persons. At the time of occurrence
P.W. 2 and P.W. 4 were proceeding ahead of their rest companions i.e. P.W.
1, 3 and 6. It is prosecution case that P.W. 2 was assaulted by the accused
persons and sustained grievous injuries on his head and when the P.W. 4 and
other P.Ws tried to resist the accused persons the accused persons also
assaulted them with dao, lathi etc causing injuries to their persons also.
P.Ws. 1, 2 & 4 sustained injuries at the hands of the accused persons and
they have deposed direct eye witness account of the occurrence. In any
criminal trial direct eye witness evidence weigh much importance compared
to indirect and circumstantial evidence. So the direct eye witness testimonies
of the P.W. 1, 2 and 4 bear much importance in deciding the guilt or
innocence of the accused persons in relation to the charges levelled against
them. It may be reiterated here that in a criminal case the burden of proof of
its case as well as charge levelled against the accused lies squarely upon the
shoulder of the prosecution and prosecution is required in law to discharge
its burden beyond all reasonable doubt. It is settled principle of law that an
accused is not required proving his innocence and if any doubt arises in the
prosecution case the benefit goes in favour of the accused persons. In this
Contd…P/4.
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case the accused persons’ case is one of total denial and plea of innocence.
Accused persons have not led any evidence in their defence.
(c) Let us now scan the evidences of the material P.Ws. who have
testified as eye witnesses. P.W. 2 Md. Nazrul Islam Mazumder is one of the
injured persons of the occurrence. In his evidence he has categorically stated
that on the night of occurrence at about 10/10-30 PM when he along with
P.W. 1, 3, 4 and 6 were returning home from the house of Munni Begum all
the three accused persons namely Habibur Rahman, Talibur Rahman and
Hifzur Rahman restrained them in front of Madhurbond Hazari Mosque and
started abusing them. P.W. 4 was along with him and they were proceeding
ahead of the rest P.Ws. Thereafter Accused Habibur and Talibur inflicted two
dao blows on his head as a result of which he fell down and became
unconscious. According to him he identified the accused persons from the
focus of electricity light. In cross examination except confronting the P.W. 2
with some suggestions denying the involvement of the accused persons no
contradiction, omission or infirmity could be extracted by the defence to
dislodge the direct evidence of this P.W. 2.
(d) P.W. 4 Md. Sadiqur Rahman Mazumder, who was accompanying
the P.W. 2 at the time of occurrence, also testified in this case as an eye
witness. He completely corroborated the P.W. 2 that when they were
returning home and reached near the house of the accused persons the
accused Habibur Rahman, Talibur Rahman and Hifzur Rahman armed with
dao, kiris attacked them. According to him accused Habibur Rahman
assaulted the P.W. 2 on his head by a dao. Seeing this he tried to restrain
Habibur but he was also assaulted which resulted in injury on his left hand.
He raised hulla. P.W. 1, 3 and 6 who were behind them by 30 feets came
forward to rescue. Seeing them the accused persons fled away. He also
corroborated the P.W. 2 that the accused persons could be identified in the
focus of electricity light of nearby work shop, mosque and house of the
accused persons. He corroborated P.W. 2 stating that the P.W. 2 fell down.
According to him P.W. 2 was immediately taken to the Silchar Police Station
and seeing seriousness of his injury police forwarded them to the S.M.C.H.
In cross examination except confronting with some suggestions denying the
occurrence, which the P.W. 4 categorically denied, nothing has been
extracted to dislodge the evidence of the P.W. 4.
(e) From the eye witness evidence of the P.W. 2 and 4 it becomes
crystal clear that on the way of returning to their home the three accused
persons (Habibur, Talibur and Hifzur) restrained them on the road and
accused Habibur and Talibur dealt dao blows on the head of the P.W. 2
causing serious injuries on his person. This corroborative eye witness
evidence of these P.Ws. (i.e. P.W. 2 & 4) who were to-gather at the time of
occurrence is free from any kind of contradiction, omission or infirmity to
shake their credibility as reliable witness. So relying upon the testimonies of
Contd…. P/5.
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this two vital witness we are left in no hesitation to believe the prosecution
case that on the date of occurrence when the P.Ws. were returning home and
reached near the mosque the three accused persons restrained them on the
road and accused Habibur and Talibur inflicted dao blows on the head of the
P.W. 2 causing grievous injury on his head and when the other P.Ws. tried to
resist the accused persons also assaulted them. The ld. Advocate for the
appellants argued that Munni Begum, from whose house the P.Ws. claimed
that they were returning on the night of occurrence, has not come forward to
lend support to the prosecution case. He also submitted that there is
discrepancy in describing the place of occurrence by the P.W. 2 and P.W. 4.
According to him where P.W. 2 stated the place of occurrence to be on the
road in front of mosque or workshop the P.W. 4 stated the place of
occurrence to be near the house of the accused and there is no evidence that
both the place of occurrence meant the same place. Going through the
materials it becomes very much clear that the place of occurrence depicted
by the P.W. 2 & 4 is the same which the I.O. marked in the sketch map i.e.
Ext. 2. Careful perusal of the contents of the Ext. 1also shows that the
occurrence took place over P.W.D. road near the mosque and/or house of the
accused. Ext. 2 shows that the workshop also situates nearby the place of
occurrence. So the description of the place of occurrence by P.W. 2 & P.W. 4
meant the same place. Munni Begum is not a witness of the occurrence and
as such she cannot be considered to be a material witness and her non
examination in this case cannot belie the eye witness account of the
occurrence given by the P.W. 2 and P.W. 4 nor belie the prosecution case in
any manner. So the submission of the ld. defence Advocate bears no merit.
(f) P.W. 1 Nasir Uddin Mazumder and P.W. 3 Fakrul Islam
Mazumder, who were accompanying the P.W. 2 & 4 on the date of
occurrence, were about 30 feet behind of P.W. 2 & 4 and witnessed the
occurrence from that distance. In their evidence they also lent full
corroboration of the prosecution case as well as the testimonies of the P.W. 2
& 4 in material particulars. Both of them had seen the accused Habibur,
Talibur and Hifzur restraining the P.W. 2 & 4 on their way. They also had
seen the accused Habibur and Talibur assaulting the P.W. 2 on his head by
dao/kiris. According to them seeing the occurrence when they came forward
the accused persons also assaulted them. These P.Ws. categorically stated to
have identified the accused persons in the focus of electricity light in the
mosque and house of the accused persons. These witnesses have deposed
about the injuries sustained by the P.W. 2 and their own injuries sustained in
the occurrence. P.W. 3 is the informant of the case and in his evidence he
proved in record the written ejahar vide Ext. 1 lodged on the very following
day of the occurrence where in a reasonable explanation for non filing of
ejahar instantly is shown. Delay explained in Ext. 1 appears to be quite
reasonable and cogent. It cannot be expected of the P.W. 3 to lodge the Ext.
1instantly leaving the seriously injured P.W. 2 unattended. The evidence of
Contd….P/6.
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P.W. 3 found materially corroborated the contents of the Ext. 1. In cross
examination of the P.W. 1 & 3 no material could be extracted by the defence
to impeach their credibility as eye witness nor could the defence disprove
the facts stated by them. These two P.Ws. are also found to be believable and
corroborative to the evidence of the P.W. 2 & 4.
(g)
The ld. Advocate for the accused persons argued that in their
evidence both P.W. 1 & 3 have admitted the fact of gathering of people of
the neighbourhood. According to him in such case it was the duty of the
prosecution to examine uninterested persons. Non corroboration of
prosecution case by uninterested witness, according to the ld. Advocate,
gives rise to doubt about the prosecution case. He also submitted that Ripon
Islam Mazumder (P.W.6), who according to the prosecution case were with
the P.W. 1, 2, 3 and 4 and stated to have sustained injury, has not lent support
to the prosecution case. According to the ld. defence Advocate non
corroboration of prosecution case by any disinterested witness and by the
P.W. 6 give rise to doubt and the ld. court below ought to have acquitted the
appellants by extending benefit of doubt to them. It is true that P.W. 6 has
not supported the prosecution case and went hostile. So also the sole
uninterested witness Zakir Hussian Mazumder (P.W. 5) also has not lent
corroboration to the prosecution case and went hostile. But the fact that
remains intact in their evidence is that both of them admitted the fact of an
occurrence of marpit taking place between the parties in which injuries was
sustained. The occurrence took place in the neighbourhood of the accused
persons. In such circumstances it is not expected that any neighbouring
person would come forward and depose against their neighbour. So also the
fact that P.W. 6 has not supported the prosecution case cannot belie the
trustworthy and eye witness evidence of P.W. 2, 4, 1 and 3. I am therefore
unable to subscribe to the submission made by the ld. Advocate as no
uninterested person has come forward or that P.W. 6 has not supported the
prosecution case would negate the truthfulness of the prosecution case as
well as the direct eye witness evidence of the P.W. 2, 4, 1 and 3.
(h) From the material in the record it appears on the very night of the
occurrence the injured persons went to the Silchar Medical College Hospital
and were examined by on duty doctor. The prosecution has examined the
doctor/medical officer who examined the injured persons and issued
certificate in respect of his finding of injuries. Since there is charge of
causing grievous hurt to the P.W. 2 including hurt to the persons of the other
P.Ws let us scrutinise the evidence of the doctor.
(i) P.W. 9 Dr. Pinak Pani Dhar is the doctor of the SMCH who
examined the injured persons and issued medical certificates in support of
his findings. According to the P.W. 9 on 27-05-05 he was working as
Registrar in the department of Surgery at the S.M.C.H. According to him on
that day at about 1-50 A.M. he examined Nazrul Islam Mazumder on police
Contd….P/7.
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requisition and found the following injuries:(i) An incised wound over the side of forehead with under lying cut
measuring 10x2x3 cm with active bleeding. C.T. scan of the brain reveals
that left frontal bone was fractured;
(ii) Incised wound over vertex measuring 10x1x1 cm,
(iii) Lacerated wound over the middle finger (left),
(iv) Abrasion over the sternum.
According to him all the injuries are fresh, injury No (i) is grievous
in nature and rest injuries are simple in nature. Injury No (i) & (ii) are
caused by sharp weapon and injury No. (iii) & (iv) are caused by blunt
object. He proved the injury reports vide Ext. 5 and his signatures thereon
vide Ext. 5(1).
According to the P.W. 9 on same day at 2-30 AM he also examined
one Nasir Uddin Mazumder on police requisition and found the following
injuries:(i) Small laceration over left nostril,
(ii) Small laceration over right shoulder.
He opined the injuries to be fresh, simple in nature and caused by
blunt weapon. He proved the injury certificates vide Ext. 3 and his signature
thereon vides Ext. 3(1).
P.W. 9 further stated that on the same day under police requisition and
escorted by constable No. 189 NK Birkamal Singha he also examined the
following persons and found the injuries shown against their names.
Name of the persons
Injury found
(a) Rian Uddin Mazumder.- (a) Lacerated injury over the left arm
measuring 1x1cm. Injury is fresh, simple in nature and caused by blunt
weapon.
(b) Sadiqur Rahman Mazumder.- (b) Mild tenderness over medial
object of left hand. Injury is fresh, simple in nature and caused by blunt
weapon.
(c) Fakrul Islam Mazumder.- (c) Lacerated injury over the base of
left thumb. Injury is fresh, simple in nature and caused by blunt weapon. He
proved the medical certificate vide Ext. 4 and his signature thereon vide Ext.
4(1).
In cross examination of the P.W. 9 the defence side did not dispute or
challenge the injuries detected on the persons of the injured persons but
extracted that the incised injury on the persons of P.W. 2 may be caused by
Contd…P/8.
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fall on sharp object and rest injuries on the persons of the injured persons
may be caused by fall on hard substance/object. It was extracted in cross
examination that in Ext. 4 date of examination is written as 07-05-05.
(j) From the medical evidence of the P.W. 9 it is clear that P.W. 2
sustained both grievous and simple injuries on his person and P.W. 1, 3, 4 &
6 also sustained simple injuries on their person. All the injuries were opined
by the P.W. 9 to be fresh in nature. Injury No. 1 & 2 on the person of the
P.W. 2 was opined to have been caused by sharp weapon and rest injuries by
blunt weapons. The injuries on the person of P.W. 1, 3, 4 and 6 are opined to
be caused by blunt weapon. So it is apparent that the prosecution case that
soon after the occurrence the injured persons were treated at the S.M.C.H.
Silchar is fully corroborated by the evidence of the P.W. 9. The examination
of the injured on police requisition and under escort of police personal also
lend complete corroboration to the prosecution case that the injured persons
first went to the P.S. from where they were sent for medical examination.
The ld. Advocate for the appellants submitted that though the P.W. 3 stated
to have gone to the Silchar P.S. prior to getting treatment at the S.M.C.H but
there is no G.D.E. to substantiate that fact. He also submitted that police
without making any G.D.E. or registering a case cannot proceed to collect
evidence by referring the injured persons to the S.M.C.H. According to him
as there is no G.D.E. there is legal defect on the part of the prosecuting
agency and the appellants are entitled to be acquitted. It is true that there is
no G.D.E by the Silchar P.S. and Ext. 1 shows that the case was registered on
the following day of the occurrence. But for omission on the part of the
investigating agency the aggrieved persons cannot be denied justice. It may
be noted here that when any information regarding commission of any
cognizable offence is given to the police it is the statutory duty of the police
to reduce the information in writing and then proceed to collect evidence. In
the present case there appears serious lapse on the part of the police of the
Silchar P.S. in not making a G.D.E. first and then refer the injured persons to
the S.M.C.H for their medical examination. But for lapse on the part of the
police justice cannot be denied to the real aggrieved persons.
(k) The injury No. (i) on the forehead of the P.W. 2 detected by the
P.W. 9 is opined to be grievous in nature as because C.T. scan revealed
fracture of frontal bone. Section 320 I.P.C. defines “GRIEVOUS HURT”
wherein fracture of bone or teeth is also included. The reason assigned by
the ld. lower court to consider the injury sustained by the P.W. 2 to be not
included within the definition of grievous hurt defined appears to be not
acceptable as the injury of fracture of bone attracts the injury included in
serial number ‘seventhly’ U/S 320 I.P.C. and also opined by the P.W. 9 to be
grievous in nature and caused by sharp weapon.
(l) The ld. lower court while convicting the appellants believed the
evidence of the P.W. 2 and 4 to be trustworthy. In such circumstances it was
Contd…P/9.
9
unjust on the part of the ld. lower court to acquit them of the charges U/S
341/323/34 I.P.C. as these P.Ws. in their evidence very categorically stated
that the accused persons restrained them over the P.W.D. road and then
assaulted them by both sharp and blunt objects. Medical evidence of P.W. 9
shows that he detected fresh, simple injuries on the persons of P.W. 1, 2, 3 &
4 which clearly attracts both the offences U/S 341/323 I.P.C. The accused
persons (i.e. the present appellants and accused Hifzur who has been
acquitted by the impugned judgment) together attacked the P.Ws. armed
with dao, lathi etc. Although no overt act on the part off accused Hifzur is
attributed by the P.Ws. in assaulting the P.Ws. but their in a body attack
clearly establishes sharing of common intention in assaulting the P.Ws. The
ld. Court appears to have failed to properly appreciate the evidences on
record and thereby fell in error in arriving at an erroneous decision. The ld.
court below ought to have held the present appellants guilty of the offences
U/S 341/323/326/34 I.P.C. instead of convicting and sentencing them U/S
324 I.P.C. As accused Hifzur also shared common intention he ought to have
not been acquitted of the charges U/S 341/323/326/34 I.P.C. The ld. lower
court appears to have fell into error in convicting and sentencing the present
appellants for a lesser punishment U/S 324 I.P.C. However, as there is no
cross appeals this court has no jurisdiction to interfere with the judgment of
conviction and sentence impugned in this appeal.
(m) The point in hand is thus decided in the affirmative. The appeal is
thus dismissed on contest. The conviction and sentence of the appellants are
upheld. The appellants are directed to surrender before the ld. lower court
within 15 days from today to serve out the sentences passed against them.
(n) Lower court’s record be sent back with a copy of this judgment
for information and doing the needful.
10.
Given under my hand and seal of this court on this the 21st day of
January 2015 at Silchar.
Dictated & corrected
By me.
Sri. S. K. Dhar.
Addl. Sessions Judge, (F.T.C.)
Cachar, Silchar.
Sri. S. K. Dhar.
Addl. Sessions Judge, (F.T.C.)
Cachar, Silchar.
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