Gauhati High Court
Page No.# 1/3 vs The State Of Assam And Anr on 27 March, 2025
Page No.# 1/30
GAHC010227122021
2025:GAU-AS:3602
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.A./26/2022
DHANANJOY RAY @ DHANO RAY
S/O LATE NAGENDRA NATH RAY
RESIDENT OF VILLAGE DEBOTTAR HASDAHA PART 2, PS AND DIST
DHUBRI, ASSAM.
VERSUS
THE STATE OF ASSAM AND ANR.
REPRESENTED BY PP ASSAM
2:SRI NILKANTA RAY
S/O LATE KHAGENDRA NATH RAY
RESIDENT OF VILLAGE DEBOTTAR HASDAHA PART 2
PS AND DIST DHUBRI
ASSAM
Advocate for the Petitioner : MR S BORTHAKUR, MR. D GOGOI,MR. V RAJKHOWA
Advocate for the Respondent : PP, ASSAM, MR. A T SARKAR (r-2)
:::BEFORE:::
HON'BLE MRS. JUSTICE MITALI THAKURIA Date of hearing : 10.12.2024 Date of Judgment & Order : 27.03.2025 Page No.# 2/30 JUDGMENT & ORDER (CAV) Heard Mr. S. Borthakur, learned counsel for the appellant. Also heard Mr. R. J. Baruah, learned Additional Public Prosecutor for the State respondent No. 1 and Mr. A. T. Sarkar, learned counsel for the respondent No. 2.
2. This is an appeal under Section 374/389 of the Code of Criminal Procedure, 1973 against the judgment and order dated 16.07.2021, passed by the learned Sessions Judge, Dhubri in Sessions Case No. 11/2019, under Sections 457/326/307 of the Indian Penal Code, corresponding to PRC No. 750/2018 (GR No. 4997/2017) and Dhubri P.S. Case No. 1437/2017, whereby the appellant has been sentenced to suffer R.I. for 7 (seven) years and to pay fine of Rs. 50,000/- (Rupees fifty thousand) only, in default of payment of fine, R.I. for 1 (one) year of the offence under Section 326 of the Indian Penal Code and also to suffer R.I. for 5 (five) years and to pay fine of Rs. 25,000/- (Rupees twenty five thousand) only, in default of payment of fine, R.I. for 1 (one) year for the offence under Section 457 of the Indian Penal Code and further directed that both the sentences to be run concurrently.
3. The prosecution case, in brief, is that on 06.12.2017, one Shri Nilkanta Ray, lodged an F.I.R. before the I/C Soulmari Police Petrol Post, which was subsequently forwarded to the Officer-In-Charge-Dhubri Police Station, alleging that on the night of 05.12.2017, at about 3.00 a.m., the accused- Dhanu Ray forcefully entered the house of the brother of informant, Shri Ramesh Chandra Ray, by cutting the bamboo wall of his house and inflicted severe injury by a Page No.# 3/30 sharp dao to him, his wife and his son. Thereafter, on hearing hue and cry made by them, the village people arrived there and found them in moribund condition and with the help of police, they took the injured to Dhubri Civil Hospital for undergoing treatment. Upon receipt of the said F.I.R., the Officer-In-Charge, Dhubri Police Station registered a case, being Dhubri P.S. Case No. 1437/2021, under Sections 457/427/326/307, and started investigation. During investigation, the I.O. visited the place of occurrence, drawn the sketch map, recorded the statement of the witnesses and also collected the medical report.
4. Thereafter, on completion of investigation, the I.O. laid Charge-Sheet against the present accused/appellant before the learned Sessions Judge, Dhubri on 31.05.2018 under Sections 447/324/326/307 of IPC. Accordingly, the learned Sessions Judge, Dhubri, after considering the materials available on record and also finding prima facie case, framed charge against the present accused/appellant under the aforesaid Sections. The charges were read over and explained to the accused/appellant, to which he pleaded not guilty and claimed to be tried.
5. During the trial of the case, the prosecution examined as many as 11 (eleven) numbers of witnesses including the I.O. and the Medical Officer. The accused was also examined under Section 313 Cr.P.C. Thereafter, the learned Sessions Judge, Dhubri, after hearing the parties and on perusal of the materials available on records, vide judgment & order dated 16.07.2021, in Sessions Case No. 11/2019, convicted the accused/appellant under Sections 326/457 of the Indian Penal Code and sentenced him, as aforesaid.
Page No.# 4/30
6. On being aggrieved and dissatisfied with the aforesaid impugned judgment and order dated 16.07.2021, passed by the learned Sessions Judge, Dhubri in Sessions Case No. 11/2019, under Sections 457/326/307 of the Indian Penal Code, the present appeal has been preferred by the accused/appellant from jail.
7. Mr. Borthakur, learned counsel for the appellant, submitted that the learned Trial Court below had failed to appreciate the evidence in its true perspective and thus came to an erroneous finding of guilt of the accused/appellant. The prosecution also failed to establish any motive on the part of the accused/ appellant regarding his alleged house trespass on 05.12.2017, at around 3.00 a.m., in the dwelling house of one Ramesh Ch. Ray causing grievous hurt to him, his wife and his son. He further submitted that as per allegation, the accused used to make telephone calls with the wife of the victim- Ramesh Ch. Ray and his wife, i.e. PW-9, also particularly stated that the accused used to send slang messages to her, but the prosecution did not produce any call records or call details or messages which were allegedly made to the wife of the victim (PW-5) by the present accused/appellant. He further submitted that the victim- Ramesh Ch. Ray (PW-5), in his deposition, stated that the houses of Pradip Ray, Hriday Kr. Shil, Robin Shil, Nural, Jelal are near to his house, but there is no evidence to that effect as to whether the neighbours also saw the incident or came to the house of the victim at the time of alleged incident on hearing hue and cry from the house of the victim. However, the learned Sessions Judge, without making any observation on those prosecution witnesses, had passed the order of conviction, which is not tenable in the eye of law and liable to be set aside and quashed. Further, from the deposition of PW- 8, i.e. the son of victim- Ramesh Ray (PW-5), it is seen that his sister was Page No.# 5/30 sleeping with his grandmother, but he could not say as to whether his grandmother saw the incident and the grandmother was also not examined by the prosecution, though it is claimed that the sister of the PW-8 was also sleeping along with his grandmother. Furthermore, as per PW-4, the injured did not disclose the name of the person who attacked them and he deposed that the injured told him that there were 3 (three) persons attacked him but, due to darkness, he could not recognized them, which itself shows that the victims/injured are not confirmed as to who attacked them nor they could identify the 3 (three) persons who attacked them. That apart, the PWs- 1, 2, 3, 4, 6 & 7 are the hearsay witnesses and PWs- 10 & 11 are the M.O. and the I.O., respectively, and none of them were present at the time of occurrence at the house of the injured. Thus, he submitted that there are no convincing evidence to warrant conviction against the present accused/appellant. But, without scrutinizing the PWs in its true perspective, the learned Sessions Judge had passed the impugned judgment and order which is liable to be set aside and quashed.
8. Mr. Borthakur further submitted that from the seizure list also, it is seen that the witnesses put their signatures only after 4/5 days of the occurrence. More so, the prosecution did not take any steps to exhibit the GD Entry on the basis of which the investigation was initiated and non-production of the GD Entry is itself fatal to the prosecution case. The prosecution also did not examine the neighbouring witnesses, though it is claimed that the neighbours also arrived at the place of occurrence after hearing hue and cry. As the investigation is initiated on the basis of the GD Entry, the complaint cannot be considered as the F.I.R., rather, it may be a statement made under Section 162 Page No.# 6/30 Cr.P.C. He further submitted that it is highly improbable for an accused person to left the weapon in the house of the victims after attacking them. He also submitted that at present, the accused is behind the bar for more than 3 (three) years and thus, he has already spent half of his period of sentence and that aspect may also be considered and the accused/appellant may be released accordingly.
9. In regards to non-production of the GD Entry, as stated above, Mr. Borthakur also relied on a decision of Co-ordinate Bench of this Court reported in 1997 SCC OnLine Gau 49 (Lal Kalandi & Anr. Vs. State of Assam) and emphasized on paragraph No. 4 of the said judgment, which reads as under:
"4. Learned Public Prosecutor appearing for the respondent State, on the other hand, argued that notwithstanding the infirmities as pointed out by the learned Amicus Curiae, the prosecution has proved its case and no interference is called for. It cannot be disputed that the investigation had in fact commenced in pursuance to G.D. Entry 191 dt. 22.9.93 and it was at the time of the visit of the I.0. to the place of occurrence, that the 'ejahar', Ext. 1, was handed over to him by Mina, P.W.-2. It is apparent hit by section 161. It was nothing but a statement made to the police during the course of investigation. It should not have been admitted in evidence and must held to be inadmissible, it cannot be treated as an FIR within the meaning of Section 154 Cr. P.C. The trial court was palpably wrong in treating it to be so. The importance of earliest version of the prosecution case cannot be overstated. There is not a whisper in the evidence of P.W.-9, the I.O. as to what prevented him from producing the G.D. entry before the Court, why suppressed the earliest version? It was the duty of the Public Prosecutor to have seen to it that the G.D. Entry was produced before the trial court. If the Prosecutor failed, it was the duty of the Court to direct its production. A criminal trial is not a game of hide and seek, a fair trial is the right of the accused and suppression of earliest version of the case by the prosecuting agency deserves to be condemned in no uncertain terms. As has been pointed out by the Privy Council in Emperor v. Khaja Nazimuddin, AIR 1945 P.C. 18, the object of the FIR is to obtain early information of alleged crime activity and to record the circumstances before there is time put for them to be affected and embellished. The learned trial Judge has completely overlooked this prime object of the FIR under Section 154 Cr. P.C. The trial court contrary to the statutory prohibitions contained in Section 162 Cr. P.C. has very liberally and freely used the case diary statements of witnesses. Coming Page No.# 7/30 to the evidence of P.W.-6 and 8, so heavily relied upon by the trial court, learned Amicus Curiae pointed out that P.W.-6 is a hostile witness. While agreeing to the proposition that the testimony of a hostile witness is not to be outrightly rejected, learned counsel argued that there is no corroboration from reliable quarters of his evidence. The learned trial court has approached his statement from a very narrow angle restricting himself to the examination-in-chief. It is a cardinal rule of appreciation of evidence that the statement as a whole ought to be read and not merely a part thereof. The cross-examination also forms part of the statement and cannot be lightly brushed aside. P.W.-8 is the witness who testified to the effect that accused Lal Kalandi assaulted Sudhir with a Dao but this statement is not supported by medical evidence. He has further testified that accused Manto also dealt few blows with a blunt weapon but there is no corresponding Injury found on Sudhir. The medical evidence does not support this allegation. There is no a single injury found on Sudhir which can be attributed to a blunt weapon. Even according to the learned trial Judge, "Mantu Kalandi did not cause these Injuries, but he shared the intention of Lal Kalandi by inflicting few blows with blunt weapon." If it was so, then naturally some injuries caused by blunt weapon should have been found on Sudhir's body but there is none. The trial court has noted and rightly so, that P.W.-8 is the solitary eye witness. No doubt conviction can be based on the testimony of a solitary eye witness but such testimony must be free from any infirmity. The learned Judge has imposed the circumstances as narrated by P.W.-8 in which Mantu is said to have assaulted Sudhir. Admittedly he was not present, he came running and the witnesses stated:
"Accused Montu Kalandi came running to the place of occurrence, as if to get hold of (somebody). Brandishing the rod Sudhir tried to assault Lal and at that time Montu got hold of the rod. Then Sudhir fell down. Montu dealt few blows on Sudhir. I left the place after Lal had hacked Sudhir."
10. Mr. Borthakur further submitted that there are lots of contradictions in the evidences of the PWs and the prosecution could not establish the case beyond all reasonable doubt which is required in a criminal trial. More so, it is a settled principle of law that if two views are possible on the evidence produced in a case, one indicating to the guilt of the accused and other to his innocence, the view favourable to the accused is to be accepted. In that context, he also cited a decision of Hon'ble Apex Court which was reported in (2009) 17 SCC 497 (Chikkarangaiah & Ors. Vs. State of Karnataka) and emphasized on paragraph Nos. 36 & 37 of the said judgments:
Page No.# 8/30 "36. With regard to the conviction of the accused persons under Section 3 with Section 149 IPC Is concerned, before dwelling into the evidences, we would like to reiterate the well-established legal position. In our criminal law jurisprudence, which is based on the adversarial model, an accused is presumed to be innocent unless a presumption is rebutted by the prosecution by establishing guilt of the accused beyond reasonable doubt by producing the evidence to show him to be guilt offence with which he is charged.
37. Further, if two views are possible on the evidence produced in the ca Indicating to the guilt of the accused and the other to his innocence, the view favourable to the accused is to be accepted. In cases where the court entertains reasonable doubt regarding the guilt of the accused the benefit of such doubt should go in favour of the accused. However, at the same time, the court must not reject the evidence of the prosecution taking it as false, untrustworthy or unreliable on fanciful or purely imaginary grounds or on the basis of conjectures and surmises. The case of the prosecution must be judged as a whole having regard to the totality of the evidence.
In reaching a conclusion about the guilt of the accused, the court has to appreciate, analyse and assess the evidence placed before it by the yardstick of probabilities, its intrinsic value and the animus of witnesses. It must be noted that ultima finally the decision in every case depends upon the facts of each case."
11. Mr. Borthakur, in support of his submission regarding the improbable version of the prosecution in regards to leaving the weapon of assault on the ground of the house of the injured victim, also cited a decision of Hon'ble Apex Court reported in (2000) 3 SCC 50 (Kallikatt Kunhu Vs. State of Kerala).
12. Mr. Borthakur, accordingly, submitted that the accused/appellant deserves for acquittal and therefore the interference of this Court is necessary in the judgment and order, dated 16.07.2021, passed by the learned Sessions Judge, Dhubri in Sessions Case No. 11/2019.
13. Mr. Baruah, learned Additional Public Prosecutor, submitted in this regard that the learned Sessions Judge had scrutinized all the evidence on record and Page No.# 9/30 accordingly arrived at a decision convicting the present accused/appellant vide its judgment and order. There are sufficient evidence produced by the prosecution to substantiate their plea that the accused/ appellant had entered into the house of the injured/victims by breaking the wall, inflicted grievous injuries on the victim- Ramesh Ray, his wife and his son. The medical evidence also supports the ocular evidence and thus, considering all these aspects of the case, the learned Sessions Judge had passed the judgment and order which needs no interference of this Court. He further submitted that the non- examination of the grandmother and the sister of the PW-8 and also non- examination of the neighbours, as raised by the learned counsel for the appellant, is not tenable in the eye of law as it is not mandatory that all the witnesses have to be examined by the prosecution. The case proceeded on the basis of the GD Entry made in the police station and subsequent to that only, the F.I.R. was lodged by the informant. The prosecution has established the case against the present accused/appellant beyond all reasonable doubt on the basis of the evidences of the PWs and accordingly, he submitted that present appeal is liable to be dismissed.
14. Mr. Sarkar, learned counsel for the respondent No. 2, also submitted that the learned Sessions Judge discussed in detail in regards to the motive of this case and it is also observed in paragraph No. 40 of the judgment that when the evidence of the witnesses are very clear, the motive is immaterial. However, in the case in hand, it is seen that the motive is also brought by the prosecution behind the attack by the accused/appellant to 3 (three) victims. It is evident that the accused used to send obscene messages and also used to made telephonic calls to the wife of the injured/victim- Ramesh Ch. Ray and when the Page No.# 10/30 injured asked the accused not to repeat such things, he attacked the 3 (three) victims, i.e. Ramesh Ch. Ray, his wife and his son. Thus, it is not a case that the prosecution could only brought evidence, but the motive is also brought by the prosecution for the commission of the offence by the accused/appellant. More so, the ocular evidence is completely corroborated with the medical evidence and there is no scope to disbelieve the medical evidence which supports the ocular evidence in regards to the injuries sustained by the injured as well as his wife and son.
15. In support of his submission, Mr. Sarkar further relied on a decision of Hon'ble Apex Court, which is reported in (2003) 10 SCC 414 (State of M.P. Vs. Mansingh & Ors.), wherein it has been held that the evidence of the injured witness has greater evidentiary value and unless compelling reasons exist, their statements are not be discarded lightly. He accordingly emphasized on paragraph Nos. 9 & 12 of the judgment, which read as under:
"9. The evidence of injured witnesses have greater evidentiary value and unless compelling reasons exist, their statements are not to be discarded lightly. Merely because there was no mention of a knife in the first information report. That does not wash away the effect of evidence tendered by the injured witnesses PWs 4 and 7. Minor discrepancies do not corrode credibility of otherwise acceptable evidence. The circumstances highlighted by the High Court to attach vulnerability to evidence of the injured witnesses are clearly inconsequential. Though, it is fairly conceded by learned counsel for the accused that though mere non-mention of the assailant's names in the requisition memo of injury is not sufficient to discard the prosecution version in entirety, according to him it is a doubtful circumstance and forms a vital link to determine whether prosecution version is credible. It is a settled position in law that omission to mention the name of the assailants in the requisition memo perforce does not render prosecution version brittle.
12. Even if it is accepted that there were deficiencies in investigation as pointed out by the High Court, that cannot be a ground to discard the prosecution version which is Page No.# 11/30 authentic, credible and cogent. Non-examination of Hira Lal is also not a factor to cast doubt on the prosecution version. He was not an eye-witness, and according to the version of PW 8 he arrived after PW 8. When PW 8 has been examined, the non- examination of Hira Lal is of no consequence."
16. He also relied on another decision of Hon'ble Apex Court passed in Criminal Appeal No. 1243 of 2007, Criminal Appeal No. 1399 of 2008 & Criminal Appeals No. 1363 of 2010, which was reported in (2010) 10 SCC 259 (Abdul Sayeed & Ors. Vs. State of Madhya Pradesh), wherein also, the evidence of the injured witnesses have been discussed by the Hon'ble Apex Court in paragraph Nos. 28, 29 & 30 of the judgment, which reads as under:
"28. The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by this Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. "Convincing evidence is required to discredit an injured witness". (Vide Ramlagan Singh & Ors. v. State of Bihar,5 AIR 1972 SC 2593; Malkhan Singh & Anr. v. State of Uttar Pradesh,6 AIR 1975 SC 12; Machhi Singh & Ors. v. State of Punjab,7 AIR 1983 SC 957; Appabhai & Anr. v. State of Gujarat, 8 AIR 1988 SC 696; Bonkya alias Bharat Shivaji Mane & Ors. v. State of Maharashtra,9 (1995) 6 SCC 447; Bhag Singh & Ors. (supra); Mohar & Anr. v. State of Uttar Pradesh,10 (2002) 7 SCC 606; Dinesh Kumar v.
State of Rajasthan,11 (2008) 8 SCC 270; Vishnu & Ors. v. State of Rajasthan,12 (2009) 10 SCC 477; Annareddy Sambasiva Reddy & Ors. v. State of Andhra Pradesh,13 AIR 2009 SC 2261; Balraje alias Trimbak v. State of Maharashtra,14 (2010) 6 SCC 673).
29. While deciding this issue, a similar view was taken in, Jarnail Singh v. State of Punjab,15 (2009) 9 SCC 719, where this Court reiterated the special evidentiary status accorded to the testimony of an injured accused and relying on its earlier judgments held as under:-
"28. Darshan Singh (PW 4) was an injured witness. He had been examined by the doctor. His testimony could not be brushed aside lightly. He had given full details of the incident as he was present at the time when the assailants reached the tubewell. In Shivalingappa Kallayanappa v. State of Karnataka, 1994 Supp (3) SCC 235, this Court has held that the deposition of the injured witness should be relied upon unless there are strong grounds for Page No.# 12/30 rejection of his evidence on the basis of major contradictions and discrepancies, for the reason that his presence on the scene stands established in case it is proved that he suffered the injury during the said incident.
29. In State of U.P. v. Kishan Chand, (2004) 7 SCC 629, a similar view has been reiterated observing that the testimony of a stamped witness has its own relevance and efficacy. The fact that the witness sustained injuries at the time and place of occurrence, lends support to his testimony that he was present during the occurrence. In case the injured witness is subjected to lengthy cross- examination and nothing can be elicited to discard his testimony, it should be relied upon (vide Krishan v. State of Haryana, (2006) 12 SCC 459). Thus, we are of the considered opinion that evidence of Darshan Singh (PW 4) has rightly been relied upon by the courts below."
30. The law on the point can be summarised to the effect that the testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an in-built guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein."
17. Accordingly, Mr. Sarkar submitted that the learned Sessions Judge had rightly passed the order of conviction against the present accused/appellant who caused such grievous injuries on the persons of the injured/victim as well as to his wife and son. More so, the prosecution witnesses had supported the case of the prosecution and the medical evidence is also supported by the ocular evidence completely and there cannot be any reason to disbelieve the ocular evidence as well as the medical evidence and hence, the interference of this Court is not at all necessary in the judgment and order passed by the learned Sessions Judge, Dhubri in Sessions Case No. 11/2019 and accordingly prayed for dismissal of the present appeal.
18. I have given my anxious consideration to the submissions made by the Page No.# 13/30 learned counsels appearing on behalf of the parties and also perused the materials available on record.
19. Before analyzing the other prosecution witnesses or arriving at any decision, let us first scrutinize the medical evidence of the doctor.
20. As per the evidence of the doctor (PW-10), on 06.12.2017, while he was working as S.D.M & H.O. at Dhubri Civil Hospital, he examined the victim- Ramesh Ray, his wife- Binota Ray & his son- Jyotu Roy @ Jitu Ray on being requisitioned by police in connection with Dhubri P.S. G.D. Entry No. 67 and accordingly he examined 3 (three) injured victims, namely, Ramesh Ray, Binota Ray and Jyotu Roy @ Jitu Ray.
21. On examination of the victims, he found following injuries:-
1) Ramesh Ray, aged 50 years, S/O- Late Khogendra Nath Ray, Vill Debottar Hashdah Part-II under Dhubri P.S. Registration no. 30085/17, examined on 06-12-2017 at 05:00 AM and referred to GMCH on 07-12-2017.
On examination, I found (i) cut injury in the forehead, size 2" x 1" x 1/2 ", (ii) Cut injury in the left temporal region of the scalp, size 1" x 1/2 " x 1/2 ", (iii) Cut injury in the right parietal area of the scalp, size 2" x 1" x 1/2 ", (iv) Cut injury in the back f the left elbow, size 4" x 2 x 1", (v) Cut injury in the left arm, size 1" X ½ x ½", (vi) Cut injury in the right hand, size 3"x1" x ½", (vii) Cut injury in the right shoulder area, size 2"x 1" x 1", (viii) Cut injury in the right lip, size 3" x 2" x 1", (ix) Cut injury in the right thigh, size 4" x 2" x 1", (x) fracture shaft of ulna right (xi) fracture shaft of femur right
(xii) fracture lower end of the left humerus.
Opinion: Age of injury is less than 24 hours. Injury No. (x), (xi) (xiii) are grievous and the others are simple and compound effect of all the injuries are endangered to life. Injury nos. (i) to (ix) caused by sharp heavy objects and injury nos. (x) to (xii) are due to applied force for causing injury no. (iv), (v) and (ix).
(2) Binota Ray, 42 years, W/O- Ramesh Ray, Vill- Debottar Hashdah Part-II under Dhubri P.S., registration no. 30113/17, examined on 06.12.2017 at 05:10 AM, Page No.# 14/30 referred to GMCH on 07.12.2017.
On examination I found: i) Cut injury in the left parietal area of the scalp, size 3" x 1" x Bone deep, ii) Cut injury in the parieto occipital area (right), size 3" x 1" x Bone deep, iii) Cut injury in the left side of the neck, size 3" x 1" x 1", iv) Cut injury in the temporal region of the scalp, size 4" x 1" x 1", v) Cut injury in the right cheek, size 2 ½" x ½ " x ½ ", vi) Cut injury in the left scapular area, size 2" x ½ " x ½ ", vii) Cut injury in the right forearm, size 2" x 1" x 1", viii) CT scan of the scalp shows sharp fracture involving the outer aspect of the right parietal bone along with left coronal suture.
Opinion: Age of injury is less than 24 hours. Injury no. i), ii), iii), iv), v), vi) and
vii) are simple and injury no. viii) is grievous. All the injuries are caused by sharp and heavy objects. Injury no. viii) is due to force applied causing injury no. i) and ii). Compound effect of all the injuries endangered to life.
3) Jyotu Roy @ Jitu Ray, 16 years, S/O- Ramesh Ray, Vill-Debottar Hasdah Part-II under Dhubri P.S., registration no. 30084/17, examined on 06-12-2017 at 05:15 AM, referred to GMCH on 07-12-2017.
On examination, I found i) Cut injury in the submandibular area left side 2" x 1"
x ½ ", ii) Cut injury in the right wrist size 2" x 1" x ½", cutting the ligament of the ulna side of the wrist right iii) Cut injury in the forehand size 1" x ½" x ½", iv) Cut injury in the pinna right size 1" x ½" x ½", v) Cut injury in the neck left side size 1" x ½" x ½",
vi) C.T. scan shows sharp oblique fracture involving the left lateral aspect of frontal bone with hematoma.
Opinion: Age of the injury (less than 24 hours). Injury nos. (i), (ii), (iii), (iv), (v) are simple, injury no. (vi) is grievous. All the injuries are caused by sharp and heavy objects. Injury no. (vi) is due to the force applied causing injury no. (iii).
22. From the medical evidence as well as from the Injury Report of the victims, it is seen that all the victims sustained severe injuries on their persons including the grievous injury which were caused by sharp and heavy objects and some of the injuries are caused due to force applied while causing the injuries. Thus, as per the nature and type of injuries sustained by the victims, it can be held that the victims sustained the injuries due to assault with a sharp and heavy object. Now, it is to be decided as to who caused injuries on the 3 (three) victims for which they sustained simple as well as grievous injuries on their persons. It is the case of the prosecution that the accused/appellant entered Page No.# 15/30 into the house of the injured/victim (PW-5) by breaking the wall and came with a dagger and thereby assaulted the PW-5 initially and thereafter he also assaulted and caused injuries to his son and wife, i.e. PWs- 8 & 9, respectively.
23. To substantiate the plea of the prosecution, as stated above, the prosecution examined as many as 11 (eleven) numbers of witnesses including the informant, victims, I.O. and M.O. So, let us now analyze the evidence of the other PWs.
24. PW-1 is one Nil Kanta Ray, who is the complainant and the cousin brother of the victim- Ramesh Ray. He testified that about 1½ years back, at about 3.30 a.m., one of his neighbor- Rabin Singh informed him that his brother had been attacked by someone. Accordingly, he immediately rushed to the house of his brother, which is about 2 and ½ km away from his house, and saw that his brother- Ramesh Ray, his wife- Binata Ray and his son- Jitu Ray sustained severe injuries on their persons. On being asked, his brother- Ramesh Ray told him that the accused- Dhananjay Ray @ Dhono attacked them by means of a dagger. Accordingly, he brought them to the Dhubri Civil Hospital and thereafter Ramesh Ray, his wife- Binata Ray were referred to GMCH for further treatment. He also deposed that he lodged the F.I.R. before the Soulmari Police Check Post on the day of incident itself. He also exhibited the F.I.R. and the Seizure List as Ext-1 & Ext-2, respectively.
25. However, in his cross-evidence, he stated that he did not remember as to whether he told the police that Rabin Singh informed him about the incident and his brother- Ramesh Ray told him that the accused attacked them by means of Page No.# 16/30 a dagger. He also stated that the houses of Jellal, Intaz and Rabin are near to the house of his brother.
26. PW-2 deposed that he heard the incident from the women of his village that the accused- Dhananjay Ray attacked his brother-in-law Ramesh Ray, his wife and son. He also visited the house of Ramesh Ray after their return from the hospital, wherein also, he was told that the accused attacked them on the night of incident.
27. In his cross-evidence, he stated that his house is near to the house of the accused- Dhananjay Ray and on the next day morning, at about 4.30 a.m., while he visited the house of the Ramesh, the accused was also with him. He denied when suggested that Ramesh did not disclose to him that the accused attacked them.
28. PWs-3 is one of the co-villagers and he heard about the incident, but he does not know as to who were involved in the incident.
29. PW-4 is another co-villager. As per him also, on the night of incident, at about 3.00 a.m., he heard hue and cry in the house of Ramesh Ray and he found Ramesh Ray, his wife and his son in injured condition. Accordingly, he along with other co-villagers sent them to Dhubri Civil Hospital for treatment. He also deposed that the injured did not disclose the names of the persons who attacked them, though he asked them after their regaining of sense.
30. However, he deposed in his cross-examination that the injured told him Page No.# 17/30 that there were three persons, but due to darkness, they could not recognize them.
31. PW-5 is Ramesh Ch. Ray, who is one of the victim of the incident. He deposed that on the night of incident, at about 3.00 a.m., the accused, who is his co-villager, entered into his room by breaking the wall and attacked him by means of Khukri resulting him cut injuries in his both hands and right legs as well as in his right shoulder and right back. Thereafter, on being raised alarm by him, his wife, his daughter and his son, who were sleeping in separate room, came to his room. He accordingly saw the accused attacked his wife and his son and thereafter the accused left his house. He also deposed that on being informed about the incident by his son, one Pradip Ray, who is his neighbor, visited his house and took them to Dhubri Civil Hospital, wherefrom they were referred to G.M.C.H. for further treatment. He also testified that the accused used to visit his house and used to send bad messages to his wife and when he asked the accused not to visit his house, he attacked him. He also deposed that someone informed his brother- Nilkanta Ray, who subsequently lodged the ejahar.
32. He, however, in his cross-evidence, stated that he did not file any case against the accused for sending bad messages to his wife. He also denied when suggested that he did not disclose before the I.O. that on hearing his alarm, his wife, his daughter and his son, who were sleeping in separate room, came to his room and on the light, he saw the accused and the accused also attacked his wife and son. He stated further that the accused entered into his room, where he was sleeping separately, by breaking the wooden door, which was seen by Page No.# 18/30 the police and he disclosed the name of the accused before the police personnel who visited his house. He denied when suggested that the house of Nilkanta is about 2½ km away from his house.
33. PW-6 is another independent witness and as per him, on the night of incident, at about 4.30 a.m., one Dharani called him and told him that the accused attacked Ramesh and asked him to call his son Krishna Kanta Ray. He accordingly called his son and went to the house of the complainant. He also put his signature as Ext.-2(2) in the seizure list (Ext.-2), which was obtained by the police after 4-5 days of the incident.
34. However, in his cross-examination, he stated that he did not know the contents of the Ext.-2.
35. PW-7 is one Dharani Kanta Ray, who is the younger brother of the complainant and victim. He deposed that on the night of incident, at about 2.30 to 3.00 a.m., the accused entered into the house of the victim and attacked him and his family members and after the incident, he was called by the villagers. The victim Ramesh Ch. Ray told him that the accused attacked him. The police seized one dagger, one blood-stained cloth and some other articles from the house of Ramesh Ch. Ray and he put his signature in the seizure list after 2-3 days of incident. He also verified his signature in seizure list as Ext.-2(3), seized dagger with cover as Material Ext.-1, blood stained cloth as Material Ext.-2, a pair of chappal as Material Ext.-3 and a cap as Material Ext.-4.
36. In his cross-evidence, he stated that he was informed about the seizure of Page No.# 19/30 the articles by one Nikanta Ray.
37. PW-8 is also one of the victims, who is the son of the victim- Ramesh Ch. Roy (PW-5). As per him, on the night of 06.12.2017, at about 3.00 a.m., while he was sleeping alone in other room, he heard the sound of his father and when he woke up, he saw that the accused- Dhananjoy Ray had assaulted his father on his head, hands, leg etc. with sharp weapon. Subsequently, he along with his mother was also assaulted by the accused. However, he could somehow come out from his house and met his elder brother- Haren Ray. He accordingly approached the I/C Solmari O.P., but the police came to the place of occurrence after sometime. People from locality also came. Thereafter, they were taken to the Dhubri Civil Hospital and subsequently referred to GMCH for further treatment, wherein his father undergone treatment for about 1 (one) month, mother for 15 days and himself for 3 (three) days.
38. In his cross-evidence, he stated that though his house is surrounded by three household families, but none of the villagers came out when he was shouting and approaching the police station and the people gathered at P.O. only after arrival of the police. He also stated that their house wall is made of bamboo and the police also saw the damaged wall. He stated further that his wearing apparels, which was stained with blood, was not seized by the police and his statement was recorded by police in the hospital. He denied when suggested that he did not state before the police that he came out from his house and approached the police station by shouting and police came to their house and took the photographs etc. He also denied when suggested that he deposed falsely only to implicate the accused out of any private revenge. He Page No.# 20/30 stated further that prior to the incident, they do not have any dispute with the accused.
39. PW-9 is one Binota Roy, who is the wife of Ramesh Ch. Roy (PW-5) and also one of the victims of the present case. She deposed that the accused- Dhanajoy used to make telephone calls to her by using slang words and when her husband prohibited the accused not to make any communication with her, the accused entered into their house on 06.12.2017, at about 3.00 a.m., by cutting their house wall and assaulted her husband with the help of a Khukuri by stabbing him randomly. Her husband became unconscious. Thereafter, when the light was switch on, she saw the accused- Dhananjoy stabbing her over her head, neck, hand, back and every part of the body. At that time, her son approached to prevent her, but he was also assaulted and stabbed by the accused thereby causing serious injuries to him also. Immediately after occurrence, her son rushed to the police station by shouting himself and the police came to P.O. and took them to Dhubri Civil Hospital and thereafter they were referred to GMCH for further treatment, wherein they were admitted therein for about a month. She also deposed that when they came out from their house, she also saw Haren Ray standing by the side of the wall of their house. The FIR was filed by her brother-in-law Nil Kanta. She also deposed that for the said occurrence, her children could not attend their examinations and her son along with her husband became handicapped and the certificate for handicap person is also awarded to them.
40. In her cross-evidence, she stated that her wearing apparels were stained with blood and were lying in a pool of blood, but the police did not seize the Page No.# 21/30 articles or blood stained cloth. She also stated that the one Rup Singh, Robin and Sonai were there arrived in their house and Sonai and Pradip took them to the hospital. People of the locality were also gathered at the P.O. They were in very serious condition and as such they were not in a position to talk much. Subsequently, they were admitted in the hospital and her brother-in-law Nil Kanta lodged the F.I.R. She however stated that she could not remember as to whether she stated before the police that she saw the accused while the light was on. She also stated that the accused entered into their house by breaking the door, which was made of tin, and bamboo. She further denied when suggested that the accused did not call her on phone every time using slang words for which she complained her husband. She also stated that after one and half months of the occurrence, her statement was taken by police at the instance of Haren Ray.
41. PW-11 is the I.O. of the case and as per him, on 31.05.2018, while he was working as S.I. at Solmari P.P., under Dhubri P.S., he laid the charge-sheet against the accused- Dhananjoy Roy @ Dhanu Roy under Sections 447/324/326/307 IPC, on the basis of investigation made upon an F.I.R. lodged by one Nilkanta Roy to the effect that the said accused criminally trespassed into the house of his brother- Ramesh Ch. Roy by cutting the wall of his house and thereby assaulted the victim, his wife and his son. He also deposed that on the night of incident, at about 3.00 a.m., the son of Ramesh in blood stained condition reported in their P.P., which is around 250 mtrs from P.O., that the accused assaulted him and his family members. Accordingly, he along with other police constable immediately rushed to the P.O. and found the door of Ramesh Ch. Roy broken and when he entered into the house, he found chappal, blood Page No.# 22/30 stain cloth and a dagger with blood stained falling on the ground and also found the injured/victims in serious condition. Accordingly, he seized the articles like chappal, blood stained cloth and dagger and thereafter immediately took the injured to Dhubri Civil Hospital and recorded the statements of the injured at hospital, however they could not precisely talk about the incident being in serious condition. He also deposed that initially he investigated the case on the basis of Solmari P.P. G.D. Entry No. 74, dated 06.12.2017, at 11.30 a.m. and upon receiving the F.I.R. to that effect, he forwarded the same to O/C, Dhubri P.S. for registering the case and after registration of case, he was endorsed with the investigation of the case formally and accordingly, after completion of investigation, he laid charge-sheet against the accused. He also collected the medical report, prepared the sketch map and recorded the statement of the witnesses under Section 161 Cr.P.C.
42. In his cross-evidence, he stated that he did not record the statements of the injured persons for the second time after their treatment. He also stated that at the relevant time, he along with four other police constables came to P.O., but their statements were not recorded. He also did not enter the matter in G.D. Entry as he was informed about the occurrence at about 3.00 a.m. by one Jitu. He also stated that he did not meet any immediate neighbour of the injured persons at the time of investigation. One Hemanta Mondal accompanied the injured to the hospital. He also did not show in the sketch map that one can enter into the house since the broken door was not seized by them. He found the mother and daughter of Ramesh available in the house, but he did not examine them as witness in connection with this case. He seized the articles vide Solmari P.P. G.D.E. No. 66, dated 06.12.2017, however the said G.D.E. was Page No.# 23/30 not found available in the Case Diary. He seized the articles from the possession of Nilakanta Roy. However, he did not examine any person hailing from the locality on the day of incident or thereafter and also did not prepare the sketch map showing the articles laying scattered on the floor of the house. He further stated in his cross-evidence that the victim Ramesh Ray did not state before him that on hearing his alarm, his wife, daughter and son came to his room and saw the accused attacking his wife and son. PW-8 also did not narrate the said incident before him. He also found that the injured persons in conscious stage to speak to him, but they could not speak precisely. He also denied when suggested that he did not conduct the investigation properly and with an ulterior motive, he falsely implicated the accused in this case.
43. Thus, from the evidences of the PWs, as discussed above, it is seen that the PW-1 is the informant of this case, who is the cousin brother of the victim/PW-5 (Ramesh Ray), and getting the information from one Robin Singh, he immediately rushed to the house of his brother and saw the victims in injured condition and coming to know the fact that the present accused/appellant assaulted the victims, he brought them to the Dhubri Civil Hospital and thereafter he lodged the F.I.R. Thus, it is an admitted position that the PW-1 had not seen the occurrence, but immediately after hearing about the incident, he rushed to the place of occurrence and saw the 3 (three) victims in injured condition with severe injuries on their persons and it is also learnt from the injured that the accused/appellant (Dhananjoy Roy) had caused injuries on them with a sharp object.
44. Further it is seen that PWs- 2, 3, 4 & 6 are the independent witnesses, Page No.# 24/30 who also heard about the incident, but none of them had seen the occurrence while the victims were assaulted by the accused/appellant. PW-2 also visited to the house of the victim after getting the information and as per her, she heard about the incident from the victim- Ramesh Ray after his return form the hospital. But, from her cross-evidence, it is seen that the accused was also with her when she visited to the house of the injured. Similarly, PWs- 3 & 4 also heard about the incident from the co-villagers, but PW-3 is not aware as to who was involved in the incident and PW-4 also stated that the victim did not disclose the name of the person who attacked them. Rather, in his cross- evidence, he stated that due to darkness the victim could not recognize 3 (three) persons who attacked them. More so, from the evidence of PW-6, it is seen that he also put his signature in the Seizure List and he claim that in his presence, the materials were seized by police. However, in his cross-evidence, he stated that he is not aware about the contents of the Exhibit-2 (Seizure List).
45. PW-7 is the younger brother of the complainant and the victim and as per him also, the accused entered into the house of the victim and attacked him and his family members. He was also not present at the time of incident, but he was called by the villagers where the victim discloses the name of the accused who attacked them. Police arrived and seized one dagger, blood stain cloths and some other articles and he also put his signatures as seizure witness in the Exhibit-2 (Seizure List).
46. PWs- 5, 8 & 9 are the victims of this case. As per all these victims/injured, the incident occurred at 3.00 a.m. when the accused entered into the room by breaking the wall and attacked PW-5 initially by means of a Kukuri for which he Page No.# 25/30 sustained cut injuries on his both hands, right legs as well as on right shoulder and back. When he raised alarm, his wife, his daughter and his son, who were sleeping in separate room, came to his room and then the accused attacked his wife, his son and then left his house. His son somehow managed to inform the incident to one Pradip Roy, who is their neighbour, and then he came and took the injured to Dhubri Civil Hospital and wherefrom they were referred to GMCH. PW-8, another victim of this case and the son of PW-5, also corroborated the statement made by the PW-5, and as per him also, he heard about the screaming of his father and when he woke up and saw the accused assaulting his father causing injuries on his person and thereafter the accused also attacked them. However, he managed to came out of his house, met his elder brother and accordingly he approached the I/C, Solmari O.P. and informed about the incident. PW-9, who is the wife of PW-5 and also another victim of the case, also deposed that the accused came with a sharp object like Khukuri and stabbed randomly to her husband and for which he fell unconscious and thereafter the accused also attacked her and her son causing serious injuries. Further, she also narrated the same story that her son somehow managed and rushed to the Police Station by shouting and thereafter came to P.O. and informed about the incident and accordingly they were initially referred to Dhubri Civil Hospital and thereafter to GMCH.
47. Coming to the evidence of PW-11, i.e. the I.O. of this case, it is seen that on the day of incident, initially the matter was informed to the Police Station by the PW-8, one of the victim, and on the basis of which, Solmari P.P. G.D. Entry No. 74, dated 06.12.2017, was registered and on the basis of which, he, along with other police staffs, rushed to the place of occurrence, found the injured Page No.# 26/30 with stabbed injuries and also found that the door of the victim's house was broken and thereafter he prepared the seizure list. Subsequently, the informant lodged the F.I.R. in the police station which was forwarded to Dhubri Police Station for registering a case and thereafter he was endorsed with the case and he recorded the statement of the witnesses during investigation, collected the medical reports and accordingly filed the charge-sheet against the present accused/appellant. However, from his cross-evidence, it is seen that he did not record the statement of the injured for the second time as they were found conscious after getting the treatment. Further, from his cross-evidence, it is also seen that G.D. Entry was made on the basis of the information given by one Jitu (PW-8). But, at the time of investigation, he did not meet any immediate neighbour of the injured persons. One Hemanta Mondal accompanied the injured to the hospital. It also reveals that the mother of Ramesh and his daughter were not examined as witness, though they were present in the same house. Further from his cross-evidence, it is seen that there are some minor omissions found in the statement made by the witnesses before him under Section 161 Cr.P.C., but the facts remain same that all the injured persons reported/stated before him that the accused/ appellant entered into the house by breaking the wall and attacked them by sharp weapon causing grievous injuries on their persons.
48. Thus, from the evidences of the PWs, it is seen that admittedly there are no other eye witnesses to the prosecution case, however the evidence of all the injured/victims, i.e. PWs- 5, 8 & 9, are found corroborating and they stated that the accused/appellant entered into their house by breaking the wall of their house, caused grievous injuries on their persons by assaulting them with a Page No.# 27/30 sharp object (Khukuri). It is also admitted fact that all other witnesses including the PW-1, the informant of this case, saw the victims in injured condition who were initially brought to the Dhubri Civil Hospital and thereafter they were referred to GMCH for further treatment. It is a fact that the I.O. did not examine the mother of PW-5 and his daughter, who were also present at the relevant time of incident, but the non-examination of those 2 (two) witnesses will not affect the veracity of the prosecution case wherein all the victims, who were of the same family members, narrated the same story alleging that they were assaulted by the accused/appellant. It is also evident from the evidences of all the injured/victims that the accused/appellant initially attacked the PW-5 with a Khukuri causing grievous injuries on his person and while his son and wife, i.e. the PWs- 8 & 9, respectively, came to the room of the PW-5, the accused assaulted them also with a Khukuri. This part of evidence could not be rebutted by the prosecution by cross-examining them or by producing any rebuttal evidence.
49. It is a fact that there are some minor contradictions in the evidences of PWs as the PW-4 deposed that the victims did not disclose the name of the person who attacked them and due to darkness, they also could not recognize the 3 (three) persons who were the attackers or entered into their house. However, due to such minor contradictions of the PW-4, there cannot be any doubt regarding the veracity of the prosecution case and even if the statement made by the PW-4 that the victim could not recognize the attackers, the facts remain same that all the victims in their deposition has clearly and specifically deposed that the accused/appellant entered into their house at the night of occurrence and assaulted them with a sharp weapon like Khukuri. Further, the Page No.# 28/30 evidence of the I.O. also corroborated the evidence of PW-8, who deposed that he immediately somehow rushed to the Police Station and informed about the incident and on the basis of which, the G.D. Entry was made and investigation was initiated.
50. Thus, it is seen that though there is no other eye witness to the prosecution case, except the PWs- 5, 8 & 9 who are the victims of this case and belong to same family, but these witnesses, including the PW-1, who is also the brother of the victim- Ramesh Ray (PW-5), cannot be discarded only because of their relationship when the witnesses are otherwise trustworthy and believable. Merely because the victims belong to same family members, they cannot be regarded as interested witnesses and to disbelieve or to discard their evidence. Though the PW-1, i.e. the informant of this case, is not an eye witness, but from his evidence it is seen that he immediately after the occurrence rushed to the house of the victim and saw all the injured laying in the house and on being asked, Ramesh, i.e. his brother (PW-5), reported as to who attacked him along with his family members. Though the independent witnesses have not seen that occurrence, but their evidence also cannot be discarded only as a hearsay witness because they came to know about the incident and they apprise before the Court that the injured were stabbed/attacked by the accused/appellant and they were in serious condition.
51. There may be some contradictions in the evidence of some of the witnesses, as discussed above, regarding the identification of the accused/appellant and the breaking of door/wall etc., but the basic version of the prosecution that the accused entered into the house of the victims in the Page No.# 29/30 night itself and caused severe injuries to the victims, i.e. PWs- 5, 8 & 9, goes unrebutted and in the same time, such contradictions cannot be considered as material and do not go to the root of the prosecution case to disbelieve the other vital witness of the prosecution. Further it is seen that the prosecution has also brought the motive behind the attack as the victims had elaborately stated in their evidence that the accused/appellant used to send bad messages to PW- 9 and when PW-5 asked the accused/appellant not to send such messages or not to call her, he took the revenge and with an intention to cause hurt, he entered into the house of PW-5 and caused grievous injuries on his person and when PWs- 8 & 9 came to the room, he also attacked them with Khukuri. Further, the learned Sessions Judge has rightly observed that when the evidence of victim his clear, then the motive is immaterial.
52. In the case of Mansingh (supra), as relied by the learned counsel for the respondent Nos. 2 & 3, the Hon'ble Apex Court had observed that the evidence of injured witnesses have greater evidentiary value and unless compelling reasons exist, their statements are not to be discarded lightly.
53. Similar view has also been expressed by the Hon'ble Apex Court in the case of Abdul Sayeed (supra), as relied by the learned counsel for the respondents, wherein also, same observation has been made that the testimony of the injured witness is accorded a special status in law and because these witnesses will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence.
54. Here in the instant case also, it is seen that all the injured witnesses Page No.# 30/30 alleged that the accused/appellant is the only person who came in the night of occurrence and attacked them causing serious/grievous injuries on their persons.
55. So, from the entire discussions made above and also considering the entire facts and circumstances of the case, in the considered opinion of this Court, the prosecution has able to establish the case against the present accused/appellant beyond all reasonable doubt and hence, I find that the learned Sessions Judge, Dhubri has committed no error or mistake while convicting the accused/appellant under Sections 457/326 of the Indian Penal Code and therefore, I do not find any reason to make any interference in the judgment & order dated 16.07.2021, passed by the learned Sessions Judge, Dhubri in Sessions Case No. 11/2019, under Sections 457/326/307 of the Indian Penal Code, and accordingly the same stands upheld. Consequently, the appeal stands dismissed.
56. Send back the case record of the Trial Court along with a copy of this judgment and order.
57. In terms of above, this criminal appeal stands disposed of.
JUDGE Comparing Assistant