Gauhati High Court
Md. Kashem Ali @ Abul Kashem vs The State Of Assam on 28 February, 2014
Author: P.K. Saikia
Bench: P.K. Saikia
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL
PRADESH)
CRL.REV.(P) NO.427/2011
Md. Kashem Ali @ Abul Kashem
Son of Abul Hussain
Village - Downmari,
P.S- Laharighat,
District- Morigaon, Assam
.....Accused/Petitioner
-Versus-
State of Assam
.....Respondent
Advocate for the appellant : Mr. A. Ahmed
Advocates for the respondents : Mr. D. Das
-B E F O R E-
HON'BLE MR. JUSTICE P.K. SAIKIA
Date of Hearing & Judgment & Order : 28-02-2014
JUDGMENT & ORDER
Heard Mr. A. Ahmed, learned counsel for the petitioner and the learned Addl. PP appearing for the state respondent.
2. This revision proceeding has been directed against the judgment dated 24th September, 2009, passed by the Chief Judicial Magistrate, Morigaon, in GR Case No.1284/2007 convicting the accused Kasem Ali of offences under Sections 335/341 IPC and sentencing him to RI for 1 year for offence under Section 325 IPC and to pay a fine of Rs.500/- in default, imprisonment for 1 month and also to pay a fine of Rs. 500/- in default SI for one month for offence under Section 341 IPC.
3. By the same judgment, the learned trial court while acquitting accused Nazrul Islam of offence under section 325 IPC, also convicted him of offence under section 341 IPC and sentenced him to pay a fine of Rs. 500 in default SI for one month.
4. Being aggrieved by and dissatisfied with the aforesaid judgment, accused Kasem Ali and Nazzrul Islam had preferred an appeal against such judgment citing several infirmities therein. On hearing the parties, learned Sessions judge, Morigaon, affirmed the judgment of the trial court and dismissed the appeal vide judgment dated 12th September, 2011 passed in criminal appeal No.21/2009.
5. Still being aggrieved, Kasem Ali preferred this revision stating that judgments of the court below are not sustainable in law since such judgments were not rendered in accordance with law.
6. The facts which gave rise to the present revision, in short, are that on 21-11-2007 at about 2.00 pm, while one Faizul Haque was working in his field, accused Kasem Ali and Nazrul Islam came there and assaulted him with lathi for which he sustained grievous injuries on his person. An FIR to that effect on being lodged with OC Lahori Ghat Police Station on 2-12-2007, Police registered a case and ordered investigation.
7. In due course, the IO visited the place of occurrence, examined witnesses including the Medical officer who examined the victims in the hospital on police requisition. On completion of investigation, IO submitted the charge-sheet under Section 341/325 IPC against the accused persons and forwarded them to the court to stand trial.
8. When accused persons appeared before the court, charge of offences under section 341/325 IPC were framed against both accused persons and charges, so framed, on being read over and explained to them, accused persons pleaded not guilty and claimed to be tried.
9. During trial, the prosecution side has examined as many as 5 witnesses including the Medical Officer and Investigating Officer of the case. The statements of the accused person under section 313 Cr.PC were recorded. On completion of trial, the learned trial court convicted the accused persons, of the offences as aforesaid and sentenced them to punishment in accordance with law.
10. However, such a judgment, rendered by the trial court on being challenged preferring an appeal before the court of Sessions at Morigaon, later, on hearing the parties thereto, affirmed the judgment of the learned trial court. Therefore, being aggrieved, accused petitioner Kasem Ali had preferred this revision.
11. Opening up argument, the learned counsel for the petitioner has submitted the judgment of the trial court as well as the Appellate court are unsustainable in law since they are riddled with serious infirmities. In that connection, it has been pointed out that incident in question occurred on 21-11-2007. Yet the matter was reported to the police only on 2-12-2007. Thus, there was delay of about 10 days in launching the case at hand but such delay remains unexplained which throws the entire prosecution case into a maze of suspicion.
12. It has also been contended that the incident under consideration was reportedly witnessed by a good number of people. Some of them are neutral and natural witnesses to such incident. In spite of that, the prosecution has founded its case only on the evidence of those persons which were hell bent in securing conviction of the accused persons since they are closely related to the victim.
13. The further case of the accused petitioner was that the prosecution case suffers from some other infirmities as well. In that regard, it has been stated that on some very fundamental points, PW- 1, PW-3 and PW-4 rendered evidence which are totally inconsistent to say the least. This is because of the fact that while PW-1 states that it was accused Nazrul who administered fatal blow on the victim on the day in question, the other two witnesses told that such blow was inflicted by accused Kasem Ali.
14. All those make the prosecution case extremely doubtful and therefore, learned trial court ought not to have convicted the accused persons as aforesaid. Therefore, learned counsel for the accused petitioner submits this court to acquit the accused petitioner of offence under section 325/341 IPC on setting aside the judgment which gave rise to the present revision proceeding.
15. On the other hand, the learned Addl. PP, Mr. D Das has contended that it is true that there was delay in lodging the case under consideration. It is also true that there are some inconsistencies in the evidence rendered by PW-1, PW-3 and PW-4. But those are no grounds for disbelieving the evidence of PWs, more particularly PW-1, PW-2 and PW-3. This is because of the fact that delays in lodging case had properly been explained.
16. In so far inconsistencies in the evidence, rendered by PW1, PW3 and PW4 on the point of assailant is concerned, it has been stated that despite there being some inconsistencies in the testimonies, rendered by those PWs on the assailant, yet, there is undeniable evidence to show that assailant, who allegedly inflicted wound on the victim on the day in question, was none other than Kasem Ali, although other accused was very much there when the incident under consideration was going on.
17. In regard to non-examination of neutral and natural witnesses, it has been submitted that there is convincing and indisputable evidence to show that PW1, PW3 and PW4 were present at the P.O. when incident in question was going on and being the eye witnesses to such an incident, they could render before the court during trial an accurate account of such an incident. Being so, there is nothing on record requiring this Court to discard the testimonies, rendered by those PWs.
18. In view of above, the learned Addl. Addl. P.P., appearing for the State, contends that the learned trial court did not commit any wrong in convicting accused Kasem Ali of offence under section 341/325 IPC and in sentencing him to punishment as aforesaid. Therefore, he urges this court to affirm the judgments under challenge on dismissing the revision at hand.
19. I have considered the rival submissions having regard to the evidence on record as well as the judgment under challenge. A careful perusal of the evidence on record reveals that on the fateful day, there was a quarrel between the parties at the place of occurrence and such quarrel was for non-payment of the sale proceeds which accused persons, Kasem Ali in particular, reportedly owed to the victim.
20. The evidence on record further reveals that such quarrel soon turned violent and in that process, the victim sustained grievous wound on his person, being caused by blunt object. Such evidence again reveals that the person responsible for inflicting such wound was none other than accused Kasem Ali and he did so over a quarrel at the place of occurrence on the fateful day in the afternoon.
21. It may be stated here that there was delay in lodging the case in question, but then, sufficient explanation has been given as to why the FIR was not lodged soon after the incident. Further, although there were some inconsistencies in the testimony of those PWs, yet, I have found reason to believe the testimony, rendered by PWs, PW-1, PW-3 and PW-4 in particular.
22. This is because of the fact that those infirmities do not go to the root of the prosecution case. Quite contrary to it, such infirmities, in the face of very positive evidence of the victim on the point of assailant in particular, could cause no harm to the prosecution case or for that matter, affect the credibility of the witnesses, the star campaigners from the side of the prosecution in particular.
23. Consequently, I am to hold that on the fateful day, to be precise, 21.11.2007, accused Kasem Ali and Nazrul Islam quarreled with Faijul Hoque at the place of occurrence for which accused Kasem Ali had assaulted him with a stick thereby inflicting grievous injury on his left hand. More importantly, he did so without there being any rhyme and reason and therefore, he inflicted such wound voluntarily.
24. In view of above, I have found that prosecution has proved the charges u/s 341/325 IPC against the accused Kasem Ali beyond all reasonable doubt and as such, learned trial Court did commit no wrong in convicting said accused persons of offence u/s 341/335 IPC.
25. I have heard the learned counsel for the parties. The incident in question occurred as back as 21-11-2007 and present appellant along with Nazrul Islam stood convicted of aforesaid offences by the trial Court on 24.09.2009. I have found that when accused Kasem Ali was convicted of those offences on 24.09.2009, he was a man of about 50 years of age.
26. It may also be noticed here that no previous conviction against any of the aforesaid accused persons was alleged or proved. Therefore, considering all aspects including the fact that father and son duo have been facing the trial over a period close to 8 years, I am of the opinion that sentence of imprisonment needs to be interfered with.
27. Therefore, instead of sentencing the petitioner to imprisonment, I find it necessary to require him to pay a fine of Rs.2000/- in default, SI for 3 month for offence u/s 341 IPC. He is also asked to pay a fine of Rs. 5,000/- in default, S.I., for 6 months for offence u/s 325 IPC.
28. However, in the event of realization of fine, an amount to the tune of Rs. 5,000/- be paid to the victim as being compensation and same has to be paid within a period of two months from today.
29. Consequently, this revision is partly allowed.
30. Return the LCR.
31. On receipt of the same, the learned trial court would do the needful as indicated above.
JUDGE Smita