Shri Abdul Haque vs Md.Abdul Kadir on 17 January, 2022

[Cites 47, Cited by 0]

Tripura High Court

Shri Abdul Haque vs Md.Abdul Kadir on 17 January, 2022

Bench: Arindam Lodh

                      THE HIGH COURT OF TRIPURA
                            AGARTALA
                           CRL. A. 05 OF 2019
Shri Abdul Haque,
S/o Late Mour Miah, resident of Yeajakhawra,
PS Irani, P.O. Babur Bazaar,
Kailashahar, District-Unakoti Tripura.
                                                            .... Appellant
            - Vs -

1. Md.Abdul Kadir
2. Md. Abdul Kayum

Both are the sons of Late Mour Miah,
Residents of West Yeajekhawra,
PS Irani, District Unakoti Tripura.

3. The State of Tripura.
                                                          ....Respondents

BEFORE HON'BLE MR. JUSTICE ARINDAM LODH For the appellant : Mr. H.K. Bhowmik, Advocate.

For the accused-respondent : Mr. R. G. Chakraborty, Advocate.

nos. 1 & 2
For the State-respondent      : Mr. S. Debnath,
                                Additional Public Prosecutor.

Date of hearing and           : 17.01.2022
date of delivery of
Judgment & Order

Whether fit for reporting : Yes

                       Judgment & Order (Oral)

The informant, Abdul Haque has preferred the instant appeal before this court challenging the legality and validity of the judgment and Page 2 order of acquittal dated 04.01.2019, passed by learned Additional Sessions Judge, Unakoti Judicial District, Kailashahar in connection with case No.ST (Type-1) 29 of 2017 whereby and whereunder the accused- respondents, namely, Md. Abdul Kadir and Md. Abdul Kayum were acquitted.

2. The prosecution case was set in motion on the basis of a complaint lodged by the appellant [PW-1] stating inter alia that in view of pendency of a case in the Kailashahar Court, the respondent nos. 1 and 2 had been threatening him as well as his elder son, namely, Joynal Haque for withdrawal of the case. On 23-08-2016, at around 3:50 pm, while he was returning from paddy field after completion of his cultivation works and reached in front of the house of Mucha Miah, the accused-respondents had attacked upon him with sharp weapons like 'axe', 'dao', etc. with a view to kill him in a pre-planned way. Both the above noted respondents had started assaulting him. The respondent no.1, Md. Abdul Kadir had tried to hack on his head with 'dao' when he tried to save his head as well as his life by his left hand. Said Abdul Kadir inflicted three blows consecutively on his left hand causing severe injuries. While he raised alarm, his son Joynal Haque had arrived at the spot to save him. But Md. Abdul Kayum [respondent no.2] had struck his son with an 'axe' on the left of the back of his body. Then and there with a view to save his life, his son was running Page 3 towards his house with injuries but had fallen down on the earth and became senseless. On hearing his hue and cry, the neighbouring people had rushed to the spot when one Hossain Ali, an auto rickshaw driver coming to the spot separated the 'axe' which was affixed with the back of his son and had taken them to the Kailashahar hospital. His son was unconscious. Being found his son Joynal critical, Doctors of RGM Hospital, Kailashahar had referred him to GBP Hospital, Agartala instantly where his son was struggling for life. The said complaint was lodged on the same day [23.08.2016] at about 11:00 pm.

3. On receipt of the said complaint, the Officer-in-Charge of the Police Station registered an FIR. Investigation was carried on. The respondent nos. 1 and 2 were arrested after few days. The investigating officer had recorded statements of the injured witnesses i.e. the appellant and his son as well as other available witnesses. The statements of the Doctors were recorded. However, the weapon of offence could not be recovered. The investigating officer had collected injury reports [Exbt.3 and Exbt.4] prepared by the Doctors by preparing a seizure list [Exbt.2, 2/1, 2/2, 2/3].

4. After completion of investigation, the investigating officer submitted charge-sheet. The case was committed. Cognizance was taken.

Page 4 Learned Sessions Judge had transferred the case record to the court of learned Addl. Sessions Judge, Kailashahar for trial.

5. On commencement of trial, charges were framed against the respondent nos. 1 and 2 under Sections 341/324/326/307/34 of IPC. The contents of the charges were explained to them to which they pleaded not guilty and claimed to be tried.

6. In order to establish the charges, altogether 12 witnesses including the informant, PW-1 and another injured witness, PW-6 were examined. The injury reports, the seizure list and the hand sketch map along with its index had been brought on record on being proved.

7. After completion of recording of evidence of the prosecution witnesses, the respondent nos. 1 and 2 Md. Abdul Kadir and Md. Abdul Kayum were examined under Section 313 of CrPC when all the incriminating and mitigating circumstances as surfaced from the evidences of the prosecution witnesses were brought to their notice. The respondent nos. 1 and 2 denied all the allegations levelled against them claiming those as false. However, they declined to adduce evidence on their behalf.

8. Thereafter, having heard the arguments advanced by learned counsels appearing for the parties, the learned Addl. Sessions Judge held Page 5 that the prosecution had failed to substantiate the charges levelled against the respondent nos. 1 and 2 and accordingly, acquitted them.

9. Being aggrieved by and dissatisfied with the said judgment and order of acquittal, the complainant Md. Abdul Haque has preferred the instant appeal before this court.

10. I have heard Mr. H.K.Bhowmik, learned counsel appearing for the appellant. Also heard Mr. R.G.Chakraborty, learned counsel appearing for the respondent nos. 1 and 2 and Mr. S. Debnath, learned Addl. P.P. appearing for the State of Tripura, the respondent no.3.

11. Mr. Chakraborty, learned counsel appearing for the respondent nos. 1 and 2, [original accused persons] has submitted that the findings of the learned Addl. Sessions Judge are well reasoned. Mr. Chakraborty, learned counsel has further submitted that learned Addl. Sessions Judge has rightly discarded the evidence of prosecution witnesses, particularly, PW-1 and PW-6 because their statements were all along inconsistent and found to be not credible. Moreso, the evidences of PW-2, PW-3 and PW-4 should be discarded on the ground that they are closely related to both PW-1 and PW- 6 who allegedly sustained injuries being attacked by respondent nos. 1 and

2. Learned counsel has strongly argued that the auto driver who had carried the injured PW-1 and PW-6 to the hospital has not been examined and Page 6 according to learned counsel, his non-examination is fatal to the prosecution case. Mr. Chakraborty, learned counsel has tried to persuade this court that the investigating agency failed to recover the weapon of offence which made the prosecution case unbelievable in respect of the fact that PW-1 and PW-6 had been attacked with 'axe', 'dao', etc.

12. On the other hand, Mr. Bhowmik, learned counsel appearing on behalf of the complainant-appellant has submitted that the learned trial Judge has miserably failed to appreciate the evidences as deposed by the prosecution witnesses. According to learned counsel for the appellant, there is no reason to discard the evidence of PW-1 and PW-6 who sustained injuries due to the attack upon them by the respondent nos. 1 and 2 with sharp cutting weapons. Learned counsel for the appellant has further argued that there is no reason to disbelieve the evidence of PW-5, PW-7 and PW-8 who are not in any way related to PW-1 and PW-6 as they appeared to be the neighbouring persons. Added to it, according to learned counsel for the appellant, PW-3 happens to be the sister of both the appellant and respondent nos. 1 and 2 and the learned trial Judge has not discussed anything as to why her evidence has been discarded in respect of fact that she had seen respondent nos. 1 and 2 to inflict fatal blows to PW-1 and PW-6 by respondent nos. 1 and 2 with 'axe'.

Page 7

13. The crux of the submission of the learned counsel appearing for the appellant is that the order of acquittal as returned by learned Addl. Sessions Judge are merely based upon some irrelevant materials and thus, perverse which calls for interference of this court and the respondent nos. 1 and 2 are liable to be convicted.

14. This appeal is against acquittal. Before I deal with, decide and dispose of the present case, I like to have a re-look at the principles to be followed by the appellate court while hearing a criminal appeal against order of acquittal.

14.1 In Atley v. State of U.P. [AIR 1955 SC 807:1955 Cri LJ 1653] the Apex Court said : (AIR pp. 809-10, para 5) "In our opinion, it is not correct to say that unless the appellate court in an appeal under Section 417, Criminal Procedure Code came to the conclusion that the judgment of acquittal under appeal was perverse it could not set aside that order.

It has been laid down by this Court that it is open to the High Court on an appeal against an order of acquittal to review the entire evidence and to come to its own conclusion, of course, keeping in view the well-established rule that the presumption of innocence of the accused is not weakened but strengthened by the judgment of acquittal passed by the trial court which had the advantage of observing the demeanour of witnesses whose evidence have been recorded in its presence.

It is also well settled that the court of appeal has as wide powers of appreciation of evidence in an appeal against an order of acquittal as in the case of an appeal against an order of conviction, subject to the riders that the presumption of innocence with which the accused person starts in the trial court continues even up to the appellate stage Page 8 and that the appellate court should attach due weight to the opinion of the trial court which recorded the order of acquittal. If the appellate court reviews the evidence, keeping those principles in mind, and comes to a contrary conclusion, the judgment cannot be said to have been vitiated."

(Emphasis supplied) 14.2 In Kallu v. State of M.P. [(2006) 10 SCC 313 : (2006) 3 SCC (Cri) 546 : AIR 2006 SC 831] the Apex Court stated thus : (SCC pp. 317- 18, para 8) "8. While deciding an appeal against acquittal, the power of the appellate court is no less than the power exercised while hearing appeals against conviction. In both types of appeals, the power exists to review the entire evidence. However, one significant difference is that an order of acquittal will not be interfered with, by an appellate court, where the judgment of the trial court is based on evidence and the view taken is reasonable and plausible. It will not reverse the decision of the trial court merely because a different view is possible. The appellate court will also bear in mind that there is a presumption of innocence in favour of the accused and the accused is entitled to get the benefit of any doubt. Further if it decides to interfere, it should assign reasons for differing with the decision of the trial court."

(Emphasis supplied)"

14.3 In Chandrappa & Ors. Vrs. State of Karnataka, (2007) 4 SCC 415, the Hon'ble Apex Court after taking note of its earlier decisions clarified the legal position as under:-[SCC.p.432, para 42] "42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:

(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.

(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Page 9 court on the evidence before it may reach its own conclusion, both on questions of fact and of law.

(3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.

(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."

15. Very recently a three-Judge Bench of the Hon'ble Supreme Court in Rajesh Prasad Vrs. State of Bihar & Anr., 2022 SCC OnLine SC 23, after taking note of its earlier catena of decisions has summarized the principles as under:-

"34. The circumstances under which an appeal would be entertained by this Court from an order of acquittal passed by a High Court may be summarized as follows:

A) Ordinarily, this Court is cautious in interfering with an order of acquittal, especially when the order of acquittal has been confirmed upto the High Court. It is only in rarest of rare cases, where the High Court, on an absolutely wrong process of reasoning and a legally erroneous and perverse approach to the facts of the case, ignoring some of the most vital facts, has acquitted the accused, that the same may be reversed by this Court, exercising jurisdiction under Article 136 of the Constitution.

[State of U.P. v. Sahai, (1982) 1 SCC 352 : AIR 1981 SC 1442] Page 10 Such fetters on the right to entertain an appeal are prompted by the reluctance to expose a person, who has been acquitted by a competent court of a criminal charge, to the anxiety and tension of a further examination of the case, even though it is held by a superior court. [Arunachalam v. Sadhananthan, (1979) 2 SCC 297 : AIR 1979 SC 1284] An appeal cannot be entertained against an order of acquittal which has, after recording valid and weighty reasons, has arrived at an unassailable, logical conclusion which justifies acquittal. [State of Haryana v. Lakhbir Singh, 1990 Cri LJ 2274 (SC)] B) However, this Court has on certain occasions, set aside the order of acquittal passed by a High Court. The circumstances under which this Court may entertain an appeal against an order of acquittal and pass an order of conviction, may be summarised as follows:

i) Where the approach or reasoning of the High Court is perverse:

a) Where incontrovertible evidence has been rejected by the High Court based on suspicion and surmises, which are rather unrealistic. [State of Rajasthan v. Sukhpal Singh, (1983) 1 SCC 393 : AIR 1984 SC 207] For example, where direct, unanimous accounts of the eye-

witnesses, were discounted without cogent reasoning; [State of UP v. Shanker, AIR 1981 SC 879]

b) Where the intrinsic merits of the testimony of relatives, living in the same house as the victim, were discounted on the ground that they were 'interested' witnesses; [State of UP v. Hakim Singh, (1980) 3 SCC 55 : AIR 1980 SC 184]

c) Where testimony of witnesses had been disbelieved by the High Court, on an unrealistic conjecture of personal motive on the part of witnesses to implicate the accused, when in fact, the witnesses had no axe to grind in the said matter. [State of Rajasthan v. Sukhpal Singh, (1983) 1 SCC 393 : AIR 1984 SC 207]

d) Where dying declaration of the deceased victim was rejected by the High Court on an irrelevant ground that they did not explain the injury found on one of the persons present at the site of occurrence of the crime. [Arunachalam v. Sadhanantham, (1979) 2 SCC 297 : AIR 1979 SC 1284] Page 11

e) Where the High Court applied an unrealistic standard of 'implicit proof' rather than that of 'proof beyond reasonable doubt' and therefore evaluated the evidence in a flawed manner. [State of UP v. Ranjha Ram, (1986) 4 SCC 99 : AIR 1986 SC 1959]

f) Where the High Court rejected circumstantial evidence, based on an exaggerated and capricious theory, which were beyond the plea of the accused; [State of Maharashtra v. Champalal Punjaji Shah, (1981) 3 SCC 610 : AIR 1981 SC 1675] or where acquittal rests merely in exaggerated devotion to the rule of benefit of doubt in favour of the accused. [Gurbachan v. Satpal Singh, (1990) 1 SCC 445 : AIR 1990 SC 209].

g) Where the High Court acquitted the accused on the ground that he had no adequate motive to commit the offence, although, in the said case, there was strong direct evidence establishing the guilt of the accused, thereby making it unnecessary on the part of the prosecution to establish 'motive.' [State of AP v. Bogam Chandraiah, (1986) 3 SCC 637 : AIR 1986 SC 1899]

ii) Where acquittal would result is gross miscarriage of justice:

a) Where the findings of the High Court, disconnecting the accused persons with the crime, were based on a perfunctory consideration of evidence, [State of UP v. Pheru Singh, 1989 Supp (1) SCC 288 : AIR 1989 SC 1205] or based on extenuating circumstances which were purely based in imagination and fantasy. [State of Uttar Pradesh v. Pussu, (1983) 3 SCC 502 : AIR 1983 SC 867 (SC)]

b) Where the accused had been acquitted on ground of delay in conducting trial, which delay was attributable not to the tardiness or indifference of the prosecuting agencies, but to the conduct of the accused himself; or where accused had been acquitted on ground of delay in conducting trial relating to an offence which is not of a trivial nature. [State of Maharashtra v. Champalal Punjaji Shah, (1981) 3 SCC 610 : AIR 1981 SC 1675] [Source : Durga Das Basu - "The Criminal Procedure Code, 1973"

Sixth Edition Vol.II Chapter XXIX]"

16. In yet another recent judgment passed in Geeta Devi Vs. State of U.P. & Ors., reported in 2022 SCC OnLine 57, the Apex Court while Page 12 discussing the scopes of entertaining criminal appeal under Section 378 CrPC, has taken into consideration its decision in Guru Dutt Pathak Vrs. State of Uttar Pradesh, (2021) 6 SCC 116, which is extracted here-in- below:-

"7. How to deal with, decide and dispose of the criminal appeal against an acquittal under Section 378 Cr.PC has been elaborately dealt with by this Court and after considering the earlier catena of decisions of this Court in the case of Guru Dutt Pathak Vs. State of Uttar Pradesh, (2021) 6 SCC 116, in paragraphs 15 to 20 it has been observed as under:

15. In Babu v. State of Kerala [Babu v. State of Kerala, (2010) 9 SCC 189, this Court has reiterated the principles to be followed in an appeal against acquittal under Section 378 CrPC. In paras 12 to 19, it is observed and held as under: (SCC pp. 196199) "12. This Court time and again has laid down the guidelines for the High Court to interfere with the judgment and order of acquittal passed by the trial court. The appellate court should not ordinarily set aside a judgment of acquittal in a case where two views are possible, though the view of the appellate court may be the more probable one.While dealing with a judgment of acquittal, the appellate court has to consider the entire evidence on record, so as to arrive at a finding as to whether the views of the trial court were perverse or otherwise unsustainable. The appellate court is entitled to consider whether in arriving at a finding of fact, the trial court had failed to take into consideration admissible evidence and/or had taken into consideration the evidence brought on record contrary to law.Similarly, wrong placing of burden of proof may also be a subject matter of scrutiny by the appellate court. (Vide Balak Ram v. State of U.P. [Balak Ram v. State of U.P., (1975) 3 SCC 219], Shambhoo Missir v. State of Bihar [Shambhoo Missir v. State of Bihar, (1990) 4 SCC 17] , Shailendra Pratap v. State of U.P. [Shailendra Pratap v.

State of U.P., (2003) 1 SCC 761], Narendra Singh v. State of M.P. [Narendra Singh v. State of M.P., (2004) 10 SCC 699], Budh Singh v. State of U.P. [Budh Singh v. State of U.P., (2006) 9 SCC 731], State of U.P. v. Ram Veer Singh [State of U.P. v. Ram Veer Singh, (2007) 13 SCC 102], S. Rama Krishna v. S. Rami Reddy [S. Rama Krishna v.

Page 13 S. Rami Reddy, (2008) 5 SCC 535], Arulvelu v. State [Arulvelu v. State, (2009) 10 SCC 206], Perla Somasekhara Reddy v. State of A.P. [Perla Somasekhara Reddy v. State of A.P., (2009) 16 SCC 98] and Ram Singh v. State of H.P. [Ram Singh v. State of H.P., (2010) 2 SCC

445)

13. In Sheo Swarup v. King Emperor [Sheo Swarup v. King Emperor, 1934 SCC OnLine PC 42], the Privy Council observed as under: (SCC OnLine PC) 'the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses.'

14. The aforesaid principle of law has consistently been followed by this Court. (See Tulsiram Kanu v. State [Tulsiram Kanu v. State, AIR 1954 SC 1 : 1954 Cri LJ 225] , Balbir Singh v. State of Punjab [Balbir Singh v. State of Punjab, AIR 1957 SC 216 : 1957 Cri LJ 481] , M.G. Agarwal v. State of Maharashtra [M.G. Agarwal v. State of Maharashtra, AIR 1963 SC 200 : (1963) 1 Cri LJ 235] , Khedu Mohton v. State of Bihar [Khedu Mohton v. State of Bihar, (1970) 2 SCC 450 : 1970 SCC (Cri) 479] , Sambasivan v. State of Kerala [Sambasivan v. State of Kerala, (1998) 5 SCC 412 : 1998 SCC (Cri) 1320] , Bhagwan Singh v. State of M.P. [Bhagwan Singh v. State of M.P., (2002) 4 SCC 85 : 2002 SCC (Cri) 736] and State of Goa v. Sanjay Thakran [State of Goa v. Sanjay Thakran, (2007) 3 SCC 755 : (2007) 2 SCC (Cri) 162] .)"

17. The Hon'ble Supreme Court in Ramesh Babulal Doshi Vrs.

State of Gujarat, (1996) 9 SCC 225, had spoken about the object of the appellate court while considering an appeal against an order acquitting the accused and stated as follows:-

"While sitting in judgment over an acquittal the appellate court is first required to seek an answer to the question whether the findings of Page 14 the trial court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the appellate court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities it can then--and then only--reappraise the evidence to arrive at its own conclusions."

18. Putting emphasis on balance between importance of individual liberty and evil of acquitting guilty persons, in Shivaji Sahabrao Bobade v. State of Maharashtra [(1973) 2 SCC 793: 1973 SCC (Cri) 1033] the Apex Court held that : (SCC p. 799, para 6) "6. Even at this stage we may remind ourselves of a necessary social perspective in criminal cases which suffers from insufficient forensic appreciation. The dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defence and to the soothing sentiment that all acquittals are always good regardless of justice to the victim and the community, demand especial emphasis in the contemporary context of escalating crime and escape. The judicial instrument has a public accountability. The cherished principles or golden thread of proof beyond reasonable doubt which runs thro' the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt. The excessive solicitude reflected in the attitude that a thousand guilty men may go but one innocent martyr shall not suffer is a false dilemma. Only reasonable doubts belong to the accused. Otherwise any practical system of justice will then breakdown and lose credibility with the community. The evil of acquitting a guilty person light-heartedly, as a learned author (Glanville Williams in Proof of Guilt) has sapiently observed, goes much beyond the simple fact that just one guilty person has gone unpunished. If unmerited acquittals become general, they tend to lead to a cynical disregard of the law, and this in turn leads to a public demand for harsher legal presumptions against indicted 'persons' and more severe punishment of those who are found guilty. Thus, too frequent acquittals of the guilty may lead to a ferocious penal law, eventually eroding the judicial protection of the guiltless. For all these reasons it is true to say, with Viscount Simon, that 'a miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent....' In short, our jurisprudential enthusiasm for presumed Page 15 innocence must be moderated by the pragmatic need to make criminal justice potent and realistic. A balance has to be struck between chasing chance possibilities as good enough to set the delinquent free and chopping the logic of preponderant probability to punish marginal innocents."

(Emphasis supplied)

19. Again, from the submissions of learned counsels it becomes apparent that prosecution has tried to project informant [PW-1] and his son [PW-6] as injured eye-witnesses who sustained injuries at the same occurrence being caused by respondent nos. 1 and 2 [accused persons].

20. It is found that the learned trial court discredited the evidences of injured witnesses i.e. PW-1 and PW-6 on the law of material omissions and contradictions.

21. The evidence of an injured eye-witness has great evidentiary value carrying greater weight and the testimony of such a witness is considered to be beyond reproach and reliable. Unless compelling reasons exist, their statements are not to be discarded or ignored lightly. The fact that the witness was injured at the time and in the same occurrence lends support to the testimony that the witness was present during occurrence and he saw the occurrence in his own eyes. Firm, cogent and convincing ground is required to reject the evidence of an injured witness.

(emphasis supplied) Page 16

22. Hon'ble Supreme Court while discussing the evidentiary value of injured eye-witnesses in Mano Dutt vrs. State of Uttar Pradesh, (2012) 4 SCC 79, had held thus:-

"31.We may merely refer to Abdul Sayeed v. State of Madhya Pradesh [(2010) 10 SCC 259], where this Court held 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 v. State of Bihar, Malkhan Singh v. State of U.P., Machhi Singh v. State of Punjab, Appabhai v. State of Gujarat, Bonkya v. State of Maharashtra, Bhag Singh, Mohar v. State of U.P. (SCC p. 606b-c), Dinesh Kumar v. State of Rajasthan, Vishnu v. State of Rajasthan, Annareddy Sambasiva Reddy v. State of A.P.and Balraje v. State of Maharashtra-(2010) 6 SCC 673.]

29. While deciding this issue, a similar view was taken in Jarnail Singh v. State of Punjab- (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 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, Page 17 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 inbuilt 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."

23. In this context, it will be profitable to reproduce a passage from State of U.P. Vrs. A.K. Anthony, (1985) 1 SCC 505:

"10. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, draw-backs and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper-technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole..."

11. In Harijana Thirupala v. Public Prosecutor, High Court of A.P.- (2002) 6 SCC 470, it has been ruled that:

"11. .... In appreciating the evidence the approach of the court must be integrated not truncated or isolated. In other words, the impact of the Page 18 evidence in totality on the prosecution case or innocence of the accused has to be kept in mind in coming to the conclusion as to the guilt or otherwise of the accused. 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."

12. In Ugar Ahir v. State of Bihar-AIR 1965 SC 277, a three-Judge Bench held:

"7. The maxim falsus in uno, falsu in omnibus (false in one thing, false in everything) is neither a sound rule of law nor a rule of practice. Hardly one comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggerations, embroideries or embellishments. It is, therefore, the duty of the court to scrutinise the evidence carefully and, in terms of the felicitous metaphor, separate the grain from the chaff. But, it cannot obviously disbelieve the substratum of the prosecution case or the material parts of the evidence and reconstruct a story of its own out of the rest."

13. In Krishna Mochi v. State of Bihar-(2002) 6 SCC 81, the Court ruled that:

"32. .... The court while appreciating the evidence should not lose sight of these realities of life and cannot afford to take an unrealistic approach by sitting in an ivory tower. I find that in recent times the tendency to acquit an accused easily is galloping fast. It is very easy to pass an order of acquittal on the basis of minor points raised in the case by a short judgment so as to achieve the yardstick of disposal. Some discrepancy is bound to be there in each and every case which should not weigh with the court so long it does not materially affect the prosecution case. In case discrepancies pointed out are in the realm of pebbles, the court should tread upon it, but if the same are boulders, the court should not make an attempt to jump over the same. These days when crime is looming large and humanity is suffering and the society is so much affected thereby, duties and responsibilities of the courts have become much more. Now the maxim "let hundred guilty persons be acquitted, but not a single innocent be convicted" is, in practice, changing the world over and courts have been compelled to accept that "society suffers by wrong convictions and it equally suffers by wrong acquittals". I find that this Court in recent times has conscientiously taken notice of these facts from time to time".

24. Bearing in mind the principles as delineated here-in-above relating to the principles of hearing an appeal against acquittal and the Page 19 evidentiary value of injured witnesses and the submissions advanced by learned counsels appearing for the parties, I have gone through the evidences and materials on record. I have carefully perused the judgment rendered by learned trial Judge while acquitting the accused persons [respondent nos. 1 and 2 herein].

25. It is true that on acquittal the innocence of accused person is further reinforced having double presumption in his favour, and in this circumstance, the court should proceed to re-appreciate the judgment cautiously keeping in mind that if two views are possible, then, the views favourable to the accused should be accepted by the court. However, it is also equally true that it is the solemn duty of the court to re-appreciate the evidence as a normal rule of appreciation of evidence as surfaced in the record. Further, it will be the paramount duty of the court to see that a guilty man cannot be allowed to go scot-free on the basis of mere discrepancies on trivial matters. Here, I deem it imperative to extract a passage where Krishna Iyer J. in Inder Singh & Anr. Vrs. State [Delhi Administration], (1978) 4 SCC 161 laid down that--

"Proof beyond reasonable doubt is a guideline, not a fetish and guilty man cannot get away with it because truth suffers some infirmity when projected through human processes."

Page 20 This authoritative ratio was further re-iterated in Mahendra Pratap Singh Vrs. State of Uttar Pradesh, (2009) 11 SCC 334, wherein it was held thus:-

"2. Credibility of testimony, oral and circumstantial, depends considerably on a judicial evaluation of the totality, not isolated scrutiny. While it is necessary that proof beyond reasonable doubt should be adduced in all criminal cases, it is not necessary that it should be perfect."

26. In the process of such evaluation of credibility of the prosecution witnesses, I have to examine whether the evidences of the prosecution witnesses, particularly, the evidences of PW-1, PW-2, PW-3, PW-4, PW-5, PW-6, PW-7 and PW-8 are reliable, credible and trustworthy.

As such, at the outset, I like to discuss the evidence of PW-1 and PW-6 who being injured eye-witnesses, according to learned counsel appearing on behalf of the informant-appellant, had let in direct and cogent evidence against respondent nos. 1 and 2 that they are the only and- only persons who inflicted dreaded blows upon them.

27. PW-1, Md. Abdul Haque deposed that on 23.08.2016, at about 4:30 pm, he was returning to his house from his agricultural land and enroute to his home while he reached near the houses of Abdul Kayum and Abdul Kadir, at that time accused Abdul Kayum gave a 'Dao' blow on his left hand and wrist and accused Abdul Kadir gave 'Kural' (axe) blow on his right leg. At that time, he raised hue and cry and hearing the same his Page 21 son Joynal Haque [PW-6] reached to the place of occurrence when accused Abdul Kadir, respondent no.1 had given a 'Kural' blow on the left side of back portion of his son. At that time, one auto driver, namely, Hussain Miah was passing by that way and he witnessed the incident. Thereafter, he took both of them to the Kailashahar Hospital. His son Joynal Haque was referred to the Agartala Hospital. PW-1 got treatment in the Kailashahar Hospital for five days. After coming from the Hospital, one complaint petition was lodged to the police station by him which was written by one Advocate clerk [PW-11]. PW-1 identified his signatures in the written Ejahar which on identification were marked as Exhibit-1 series. He identified the respondent nos. 1 and 2 in the dock.

Being confronted with cross-examination, PW-1 stated that both respondent nos.1 and 2 were his own full-blooded brothers. He admitted that due to dispute relating to paternal property, numbers of cases had been filed amongst themselves. In reply to a question, PW-1 stated that the distance between his house and the place of occurrence would be about 200/250 cubits away and the distance between the house of Abdul Kadir and the place of occurrence would be about 7/8 cubits away. He admitted that he and Abdul Kadir had gone to the CJM court of Kailashahar relating to one case. He further stated that primary treatment was given to his son Joynal Haque at the Kailashahar Hospital and thereafter, he was referred to Page 22 the Agartala Hospital. He denied the suggestion put forth by the defence that they were convicted in a case filed by Md. Abdul Kadir.

28. PW 6, Joynal Haque, deposed that on 23.08.2016, at about 3:45 pm, he was in his house. After hearing hue & cry of his father he came out of house and rushed towards their paddy field through the path way. When he reached nearby the house of respondent no.1 Abdul Kadir, he saw that accused Abdul Kadir was giving 'axe' blow on the left leg of his father and Abdul Kayum gave 'dao' blow on the left hand of his father. He further deposed that he tried to rescue his father by pulling his father from the ground, but, in the meantime, accused Abdul Kadir gave an 'axe' blow on the back of his body and thereafter, he ran towards his house, but, in the midway he fell down and became unconscious. He was taken to the hospital by an auto rickshaw being accompanied by their relatives.

During cross-examination, he stated that both the respondent nos. 1 and 2 were his own uncles. PW-6 admitted that accused Abdul Kadir had filed a case against them, but, he did not admit that they were convicted in the said case.

29. Now, next vital witness is PW-4, whose evidences appear to be very significant in the light of the findings recorded by learned trial court. PW-4, Mst. Sukurun Nessa deposed that on 23.08.2016, at about Page 23 3:45 pm, she heard hue and cry of her father, and out of that she herself and her brother Joynal Haque came to the place of occurrence. Reaching there, she saw her father lying injured on the ground and seeing him, her brother Joynal tried to uplift him when her uncle Abdul Kadir (respondent no.1) had given one 'axe' blow on the back (left side) of her brother. PW-4 further deposed that she saw that accused Abdul Kadir gave one 'axe' blow on the leg of her father and accused Abdul Kayum gave 'dao' blow on the hand of her father. Hearing their hue and cry, the local people had assembled there and she had seen Rukiya Begam, Jahira Begam, Rehana Begam and others arriving to the place of occurrence. Thereafter, her father and brother were taken by an auto rickshaw to the hospital. She identified the wearing apparels of the victims.

During cross-examination, PW-4 stated that the respondent nos.1 and 2 were her uncles and the incident happened nearby the house of Abdul Kadir, respondent no.1. PW-4, in course of deposition further stated that being injured by the said 'axe' blow, her brother was running towards his house with the 'axe' stuck to his body, but, he fell down. Within 10/15 minutes of the incident, police came to the place of occurrence. She further stated being confronted with cross-examination that--

"I came to the Hospital by the police vehicle. I informed the matter to the police by phone and also while I was going to the Hospital by the police vehicle."

Page 24

30. PW-2, Janamul Haque who deposed that he heard one hue and cry on 23.08.2016, at about 3:45 pm, and accordingly he came nearby the house of his uncle Abdul Kadir and reaching there he saw his father Abdul Haque and brother Joynal Haque lying in injured condition and blood was oozing from their bodies. He saw that local people were assembled on that place and he heard from the said local people that accused Abdul Kayum and Abdul Kadir had assaulted his father and brother by 'dao' and 'Kural' (axe). He was also informed by Abdul Mukit about the incident. Then, his father and brother were taken to the hospital.

During cross-examination, he stated that the distance between mosque and the place of occurrence would be around 100/150 meters. PW- 2 further stated that he found 15/20 nos. of persons at the place of occurrence when he reached there. He further stated that he did not state to police that he was informed by Abdul Mukit that the respondent Nos. 1 and 2 had assaulted his father and brother.

31. PW-3, Rukia Begam appearing before the court to give evidence, at the very outset, informed the court that she feared to adduce evidence as her brother was threatened by the accused persons (respondent nos. 1 and 2) on the previous day that if she would depose, she would be killed. However, appearing before the court, PW-3 deposed that on Page 25 23.08.2016, at about 3:45 pm, she being heard a hue and cry went outside her house and saw that Abdul Haque was assaulted by Abdul Kayum and Abdul Kadir by one 'dao'. She further deposed that when Abdul Haque made hue and cry, his son Joynal Haque (PW-6) came to the place of occurrence when Abdul Kadir (respondent no.1) had given an 'axe' blow to said Joynal Haque on the back side of his body. By that time, many persons came to the place occurrence. Thereafter, the respondent nos. 1 and 2 had fled away from the spot and the injured persons were taken to the hospital by an auto rickshaw.

Being confronted with cross-examination, PW-3 stated that Abdul Haque and the present respondent nos. 1 and 2 (accused persons) were her own full-blooded brothers. The houses of Abdul Kayum and Abdul Kadir were nearby her house and the house of Abdul Haque i.e. the complainant was at a little distance from her house. She further stated that the incident relating to the case took place near the house of accused Abdul Kadir. She came to the hospital by an auto rickshaw with Abdul Haque and Joynal Haque. She denied the suggestion put forth by the defence that she did not hear the hue and cry and did not go out of her house.

32. PW-5, Jahira Begam deposed that on the fateful date and time she was standing nearby the pond and heard hue and cry of Abdul Haque and Joynal Haque. Accordingly, she came nearby the house of Abdul Kadir Page 26 and on the path way, she had seen that the respondent nos. 1 and 2 were giving 'dao' blow to Abdul Haque. She further deposed that Joynal Haque (PW-6) came to save his father and at that time Abdul Kadir, the respondent no.1 had given one 'axe' blow on the back of the body of Joynal Haque and thereafter said Joynal ran towards his house. One auto rickshaw which was driven by one Hossain came at the place of occurrence along with other local people. Thereafter, the 'axe' was taken out from the body of Joynal and both the victims were taken to the hospital by the auto rickshaw of Hossain. PW-5 volunteered that she and her husband were threatened by accused Abdul Kayum not to give evidence, otherwise, she had to face consequences.

33. PW-7, Smt. Rehana Begam deposed that hearing the hue and cry of Abdul Haque on the fateful date and time she came outside of her house and came to the pathway where she had seen that Abdul Kayum and Abdul Kadir were giving blows of 'Dao' and 'Axe' to Abdul Haque, who, thereafter, had fallen down on the ground. PW-7 further deposed that Joynal Haque, son of Abdul Haque came to the place of occurrence to save his father, but, the accused Abdul Kadir gave an 'axe' blow on the left side of the back of Joynal Haque. Joynal Haque, thereafter, started running towards his house, but, in the mid way he fell down. Thereafter, the victims were taken to the hospital.

Page 27 During her cross-examination, she stated that Abdul Haque was her husband's elder brother. The house of accused Abdul Kadir is in the northern direction of her house and Joynal came at the place of occurrence when his father fell down on the ground after sustaining injury. She denied that she falsely deposed before the court.

34. PW-8, Smt. Mahibun Nessa deposed that on 23.08.2016, at about 3:30 pm, her husband Abdul Haque went to the paddy field and at about 3:45 pm, while he was returning back from the field, she heard hue and cry of her husband. Her son Joynal Haque rushed towards the place of occurrence and after some time she also rushed towards the place of occurrence. On reaching there she saw that accused Adbul Kayum gave 'dao' blow on the left hand of her husband on three places and accused Abdul Kadir gave axe blow on the right leg of her husband. As a result he fell down on the ground. At that time accused Abdul Kadir gave axe blow on the left back side of her son and accused Abdul Kaym gave 'dao' blow on the right hand of her son. Thereafter, her son ran towards his house and in the mid way he fell down on the ground. Thereafter, she lost her consciousness seeing the condition of her son. Local people also came to the place of occurrence. Thereafter, her husband and son were taken to the hospital by an auto rickshaw.

Page 28 Being confronted with cross-examination, PW-8 stated that when she reached the spot she saw the respondent nos. 1 and 2 giving blows to her husband. Her son had arrived at the scene of occurrence before her arrival. She lost her sense where her son was lying on the ground. PW-8 further deposed that while going to the hospital, they informed the matter to the Kailashahar PS. Police also had reached to the hospital within fifteen minutes after they reached at the hospital. Her husband was enquired in the hospital by the police. She denied the suggestion put forth by the defence that she did not go to the place of occurrence and had not seen the accused persons assaulting her husband.

35. PW-9 Sri Ataur Rahaman deposed that both the complainant and the respondent nos. 1 and 2 were known to him. PW-9 further deposed that attempts were made to resolve the disputes between them in number of meetings. But, it could not be sorted out.

36. PW-10, Dr. Diptendu Choudhury deposed that on 28.03.2016 as a medical officer he examined two patients, namely, Abdul Haque and Joynal Haque and he submitted reports. On identification, the report relating to Abdul Haque was marked as Exbt.3 and the report relating to Joynal Haque was marked as Exbt.4. He detected the following injuries received by the victims.

Page 29 " The injuries received by Abdul Haque which are as follows:-

1. One incised wound measuring approx. 5 cm long on left arm, slight in nature and caused by sharp cutting weapon,

2. One incised wound measuring approx. 2 cm long on left fore arm, slight in nature and caused by sharp cutting weapon and

3. One incised wound measuring approx. 1 cm long on dorsum of left hand, slight in nature and caused by sharp cutting weapon.

All the wounds were fresh in nature.

The injuries received by Joynal Haque which are as follows :-

1. One incised wound measuring approx 10 cm long in depth penetrating plaura on left sub scapular area, dangerous in nature and caused by sharp cutting weapon and

2. One incised wound measuring approx.

3 cm on right arm anterior aspect, severe in nature and caused by sharp cutting weapon Both the injuries were repaired under local anesthesia."

During cross-examination, PW-10 deposed that the injuries were fresh in nature, meaning thereby those were within half an hour period.

37. PW-11, Md. Joynal Uddin deposed that on 23.03.2016, he was working as Advocate's Clerk at Unakoti District Bar Association, Kailashahar. On that date Abdul Haque came to his house for getting a complaint to be written as he and his son had been assaulted. He had written the FIR according to the version of Abdul Haque and read over the same to him and thereafter, he put his signature in the FIR. On being identified the FIR by the witness, it was marked as Exbt.1/A and his signature was marked as Exbt.1/B. He denied the suggestion in cross-examination that the FIR was not written by him.

Page 30

38. PW-12, SI Md. Joynal Hossain deposed that on 23.08.2016, he was posted as SI of Police at Irani PS. At that time, Inspector Shyamal Murasingh who was the Officer in charge of Irani PS, endorsed Irani PS Case No 47 to him for investigation. He deposed that in course of investigation, he examined the FIR and thereafter went to RGM Hospital and examined witness/complainant-victim and thereafter on reference by the victim, he went to Yeajekhawra and visited the house of the victim. He further deposed that he could not find the victim Joynal Haque as he was referred to GB Hospital. On 24.08.2016, he visited the place of occurrence on being shown by eye witness Rukia Begum. He prepared the hand sketch map of the place of occurrence along with separate index. He also seized the wearing apparels of the victims as produced by Sukurun Nessa.

PW-12 further deposed that on 26.08.2016, he went to Chantail on the basis of secret information and arrested accused Abdul Kadir (respondent no.1) and thereafter he went to Srinathpur and found accused Abdul Kayum (respondent no.2) and arrested him. PW-12 further deposed that on 11.09.2016, he received information that victim Joynal Haque returned to his house and accordingly, he visited the house of the victim and recorded his statement along with statements of some other witnesses. He submitted charge-sheet under Sections 451/325/427/34 of IPC against the accused persons.

Page 31 During cross-examination he stated that there was a mistake in indicating the respective houses of Abdul Kadir and Abdul Kayum which he mentioned in the case diary. He clarified during cross-examination that the house of Abbul Kayum was mistakenly shown as the hut of Abdul Kadir. He further stated that he searched for the axe, but, the same could not be recovered. He admitted that in course of his investigation he found that a counter case had been lodged by respondent nos. 1 and 2.

39. Now, the above evidences and materials need to be given a bird's-eye view to determine the core issues which are (i) whether the presence of PW-6 at the scene of occurrence can be questioned? (ii) Whether respondent nos. 1 and 2 [the original accused persons] had caused the injuries sustained by PW-1 and PW-6? (iii) Whether the learned Addl. Sessions Judge re-appreciated the evidence in the line of legal principles discussed and reproduced here-in-above.

39.1 It transpires that the first victim of the assault was Abdul Haque [PW-1], the informant. He specifically stated that while he was returning from his agricultural land and reached near the houses of Abdul Kayum and Abdul Kadir, they hit him with 'dao' (a sharp weapon) on his left hand as well as on his wrist. PW-1 further deposed that Abdul Kadir struck on his right leg with 'kural'(axe). His son, PW-6 reached the place Page 32 of occurrence, but, respondent nos. 1 and 2 hit him with the axe on the left side of the back of his son.

39.2 What emanates from the evidence of PW-1 that after being assaulted, he raised hue and cry. It was heard by his family members. It is very natural that the wife, son, daughter and other relatives will rush to the scene of crime when they are alarmed that their loved ones are under attack. Out of that natural human behaviour, the family members of Abdul Haque had rushed to the spot. His son, Joynal Haque [PW-6] reaching to the spot tried to save his father. PW-6 has specifically stated in his evidence that he had seen Abdul Kadir and Abdul Kayum assaulting his father by sharp weapons like 'dao' when his father had fallen down on the ground. The moment he tried to uplift his father, Abdul Kadir, the respondent no.1 had given him a blow by an 'axe' on the left side of his back. This fact has been revealed not only from the evidence of both PW-1 and PW-4, but also from PW-3, PW-5, PW-7 and PW-8 as they have very categorically supported and corroborated each other's versions on this episode.

40. I question myself, how can I overcome and deny the aforesaid overwhelming evidence that the informant PW-1 and PW-6 were attacked and sustained injuries being inflicted by respondent nos. 1 and 2 just for the slender reasons as assigned by learned trial Judge that PW-6 in his Page 33 evidence has not stated what his sister PW-4 has stated that she along with his brother PW-6 came to the place of occurrence after hearing hue and cry of her father? Is this an omission amounting to contradiction demolishing the evidence adduced by prosecution witnesses in regard to the presence of PW-6 at the place of occurrence and the injuries sustained by PW-1 and PW-6 caused by the accused persons, the respondents herein? I am unable to agree with the findings recorded by learned trial court that evidences regarding nature of attack and arrival at the scene of occurrence of the witnesses are contradictory to each other.

41. Keeping in mind the principles regarding rule of appreciation of evidence as discussed here-in-above, if I try to re-appreciate the evidence, according to me, the evidence of PW-6 that "hearing hue and cry I came to the spot" is relevant to determine his presence at the scene of occurrence irrespective of fact that whether PW-4 came to the spot along with him or not. PW-4 deposed that she saw Rukia Begam, Jahira Begam and Rehana Begam and others to come to the place of occurrence, but, learned trial Judge discarded her said version for the reason that no such fact is deposed by PW-6.

41.1 On scrutinizing the evidence of PW-4, it is surfaced that PW-4 has never stated in her evidence that she "along with" (as worded and held by learned trial court) her brother [PW-6] had rushed to the scene of Page 34 occurrence. A plain reading of the evidence of PW-4, it comes to fore that she has stated that "hearing the hue and cry myself and my brother Joynal Haque came to the place of occurrence". Even assuming that they proceeded from their house together, then also, we should be more realistic. The evidence is galore in this regard that PW-6 reached the scene of occurrence and tried to save his father. For such misconstruing of evidence, re-appreciation of evidence is necessary by the appellate court. PW-4 has never used the phrase "along with" or "together with". What she only deposed was that she and her brother came to the scene of occurrence after hearing cry of her father. PW-4 has further categorically stated that she saw her father being injured was lying on the ground and seeing the same her brother Joynal had tried to uplift him and at that time her uncle, Abdul Kadir had given one 'axe' blow on the left side of the back of her brother. If I try to picturize the situation, then, it comes to fore that there is nothing to disbelieve, but, to believe the evidence of PW-4 that when PW-6 was trying to uplift the body of his father, then, one of the respondents i.e. Abdul Kadir had given the blow on the left side of the back of her brother. The nature of injuries sustained by PW-6 has been consistently supported and corroborated by the doctor [PW-10] when he deposed before the court that he detected:-

Page 35 "one incised wound measuring approx.10 cm long in depth penetrating plaura on left sub scapular area, dangerous in nature and caused by sharp cutting weapon." PW-4 has further categorically deposed that Abdul Kayum had given a 'dao' blow on the left hand of her father which fact gets support from the deposition of doctor (PW-10) also. Doctor detected three cut injuries on the left arm of PW-1, the father of PW-4. PW-10 has opined that the injuries could be caused by sharp weapon, and wounds were fresh in nature.

Having re-appreciated the evidences of PW-1, PW-6 and PW-4, in my considered view, the learned Addl. Sessions Judge had deviated from the core issue and proceeded irrationally ignoring the relevant facts to decide the core issues.

42. In my opinion, language used to explain a particular fact or circumstance may vary from person to person. But, such variations would not necessarily imply that they have made contradictory statements, if such person or witness is found consistent and trustworthy in describing the real fact in issue. Rule of appreciation of evidence requires that courts should concentrate to trace out the materials to establish the core issue. In other words, it will be solemn duty of the court to separate the grain from the chaff. Difference in some minor detail, which does not otherwise affect the core of the prosecution case, must not be given much importance and such variations should not influence the court to reject evidence directly related Page 36 to the core issue. Here, the relevant fact in issue is that whether both PW-4 and PW-6 had rushed to the scene of occurrence. In the circumstances, it is not relevant who went to the spot first, but, whether PW-4 had seen the occurrence. The approach of the court should be realistic and should not be beset with fanciful doubts. In normal circumstances, if one boy and a girl start running, then, it will not be wrong to say that in majority of cases, out of physical advantage the boy will run fast and reach the destination before the girl.

43. Next, it is hard to digest as to how the learned Addl. Sessions Judge has discarded the evidence of PW-3. The learned trial Judge ought to have considered and believed the statements of PW-3 as she being the sister of both the complainant Abdul Haque [PW-1] and respondent nos. 1 and 2 came forward to narrate the incident as to how her brother Abdul Haque and nephew Joynal Haque had been attacked by her other brothers i.e. the respondent nos.1 and 2. She has vividly narrated the exact spot of occurrence. PW-1 was questioned about the place of occurrence and its distance from their respective houses. It is substantiated that the place of occurrence is in close proximity to the house of Abdul Kadir [about 7/8 cubits].

PW-3 has also supported this statement of PW-1 that the incident had taken place near the house of Abdul Kadir and her house is Page 37 situated in close proximity to the houses of respondent nos. 1 and 2, which has been revealed during her cross-examination. PW-3 also has categorically deposed that hearing the cry of Abdul Haque, his son Joynal Haque [PW-6] came to the place of occurrence when Abdul Kadir struck PW-6 with the 'axe' on the left side of his back. She has further deposed that local people had gathered at the place of occurrence.

44. One of the relevant circumstances is that after being hit by 'axe' on the left side of his back, PW-6 was running towards his house and in the middle of the pathway enroute to his house, he had fallen down on the ground and became senseless has been substantiated by PW-5, Jahira Begam, PW-7, Rehana Begam and PW-8, Mahibun Nessa. Mahibun Nessa, PW-8 happens to be the mother of PW-6 who has deposed that when her son had fallen down on the ground enroute to their house and seeing him being stuck with the 'axe', she lost her consciousness. PW-5, Jahira Begam is also one of the eye witnesses to the incident of assault being inflicted upon PW-1 and PW-6 by the respondent nos. 1 and 2.

45. In my considered view, learned trial Judge has committed a grave error in accurately appreciating and evaluating the evidence of PW-4 and PW-6. From the evidence of PW-3, it is revealed that when neighbouring people came to the spot, the respondent nos. 1 and 2 had fled away. From the evidence of PW-12, the IO, it comes to fore that, though, Page 38 the incident had occurred on 23.08.2016, he was able to nab and arrest respondent nos. 1 and 2 on 11.09.2016. The period from 23.08.2016 and before the arrest of the accused persons on 11.09.2016, the whereabouts of respondent nos. 1 and 2 were not known to the I.O. and they were evading the arrest.

46. Again, I find that the learned Additional Sessions Judge has relied upon certain irrelevant material which makes her findings irrational and perverse as well. Learned Addl. Sessions Judge has disbelieved the evidence of PW-4 that on hearing the cry of her father, Rukia Begam [PW- 5] and Rehana Begam [PW-7] and other local people had arrived at the scene of occurrence on the slender reason that--

"PW-6 did not depose about the arrival/reaching/presence of any other persons at the place of occurrence till he lost his consciousness after completion of assault by the accused persons, but, on the contrary, PW-3 deposed that hearing hue and cry he (sic) she came out from his(sic) her house and saw the commission of incident by accused persons. Similarly, PW-4, PW-5, PW-7 and PW-8 deposed that after hearing hue and cry they went to the spot and saw the incident. I find the above mentioned evidence of PWs that all of them are eye witnesses of the occurrence is not very cogent and convincing."

In my opinion, this approach and findings of learned Addl. Sessions Judge are not sustainable at all and appear to be perverse. Learned Addl. Sessions Judge has failed to notice that the evidence of PW-4 regarding the arrival/presence of Rukia Begam [PW-3], Jahira Begam [PW-5] and Page 39 Rehana Begam [PW-7] has not been controverted by the defence and their arrival/presence at the scene of occurrence remains unshaken. Moreover, rule of evidence does not postulate that a witness has to see and say each and every aspects of the entire incident of crime. His evidence will be limited to the part he has seen only and that will carry the credence. Again, below noted findings of learned Addl. Sessions Judge is found to be wholly contrary to the legal position regarding appreciation of evidence:-

"PW-6 deposed that he tried to pull his father [PW-1] from the ground and he ran towards his house and in the mid way he fell down but no such fact is deposed by PW-1. PW-3 claimed to be an eye-witness to the occurrence and deposed that Abdul Haque [PW-1] was assaulted by accused (sic) both the accused by dao. PW-3 did not depose about any assault upon PW-1 by axe and the same is contradictory with the evidence of both the victims (PW-1 & PW-6)."

47. Considering the aforesaid findings, I must say that the said findings are totally erroneous. According to me, rule of evidence demands that-what a witness has deposed is relevant and what has not been deposed is irrelevant for appreciation of evidence. PW-3 has not deposed anything what she has not seen and this makes such witness more reliable and trustworthy. PW-3 has categorically deposed that--"she had seen Joynal Haque, PW-6, to come to the place of occurrence when the accused Abdul Kadir gave an axe blow to Joynal Haque on the back side of his body."

Page 40 The findings of learned Addl. Sessions Judge is that--"if PW- 4 has seen PW-1 in injured condition on the ground it is not possible for PW-4 to see that accused were (sic) had assaulted PW-1" is wholly irrelevant and unwarranted for discarding the evidence of PW-1 himself that he sustained injuries on his left hand by the respondent nos. 1 and 2 by sharp weapons whether it was by 'dao' or 'axe' and which was further supported by the evidence of PW-5, PW-6 and PW-7. Proceeding further, in the process of re-evaluation of the finding of learned Addl. Sessions Judge, it transpires that learned Addl. Sessions Judge discarded the evidence of PW-5 being it contradictory with the evidence of PW-1 and PW-6 since PW-5 has claimed to be an eye-witness of the occurrence merely deposed about the assault by both the accused persons upon PW-1 by 'dao' but did not depose about any assault upon PW-1 by 'axe'. Here, again, I have to reiterate that a witness is not legally required to see each and every part of the episode of a crime. Such evidence has to be read cumulatively with other evidence. Here, PW-5 has seen the accused persons to assault PW-1 by 'dao' and this is relevant to decide the case. She has not said that she has seen the accused persons to inflict blows upon PW-1 by 'axe' is irrelevant and cannot be held to be contradictory with the evidence of the victims [PW-1 and PW-6].

Page 41

48. On being re-appreciated the evidence of PW-7, it becomes evident that PW-7 during cross-examination has confirmed that Joynal Haque [PW-6] came to the spot when his father had fallen down on the ground. This statement of PW-7 supports the deposition of PW-4 that she had seen her father lying on the ground and when her brother [PW-6] was trying to uplift PW-1, then, Abdul Kadir struck her brother on the left of his back with an 'axe'. Furthermore, the statement of PW-4 as surfaced from her cross-examination that being hit by 'axe', her brother Joynal started running towards their house when he fell down has also been corroborated by PW-7.

49. Furthermore, I have noticed that one of the reasons to disbelieve the prosecution case as held by learned Addl. Sessions Judge is non-examination of the Auto Driver, namely Hossain Miah. Learned Addl. Sessions Judge has observed that--"As submitted by learned defence counsel, I find, in this case, the independent witness i.e., the auto driver namely Hussain Miah, who saw the incident and took the victims to the hospital is not examined by prosecution and no reason has been given for his non examination and the same goes against the prosecution."

50. In my opinion, for non-examination of Hossain Miah cannot be a ground to disbelieve the prosecution story. None of the witnesses has Page 42 said that Hossain Miah had seen the incident. The prosecution witnesses have only said that the victims were being taken away to the hospital by the auto rickshaw driven by Hossain Miah. But, I am at a loss to understand how Hossain Miah is a material witness to decide and answer the core issue as to who committed the crime when there is overwhelming evidence that only the respondent nos. 1 and 2 and only they have caused injuries to PW- 1 and PW-6. As such, this finding of learned Addl. Sessions Judge does not sound good. Furthermore, I do not find any material to suggest that defence has been prejudiced in any way for non-examination of the auto driver, Hossain Miah. In my opinion, the evidence which the auto driver would have given does not appear to be essential for a just decision of the present case and that it will be un-reasonable to suggest that the prosecution has an oblique motive in non-examining the auto driver. Moreso, prosecution can be expected to examine only those who have witnessed the commission of offence and not those who have not seen it. As such, this part of the judgment is liable to be rejected. The learned Addl. Sessions Judge ought to have considered that- "it is the quality of the evidence that matters and not the number of witnesses to give evidence." More particularly, from the evidence of PW-5 it reveals that being struck by 'axe' blow when PW-6 ran towards his house at that time, the auto rickshaw driven by one Hossain came there by which the victims were taken to the hospital. So, according Page 43 to me, the view taken by learned Addl. Sessions Judge is unsustainable. In Ashok Kumar Chaudhary Vrs. State of Bihar, (2008) 12 SCC 173, it was held that- 'if a witness examined in the Court is otherwise found reliable and trustworthy, the fact sought to be proved by that witness need not be further proved through other witnesses through there may be other witnesses available who could have been examined but were not examined.'

51. Again, learned trial Judge has disbelieved the statements of PW-1 on the ground that PW-1 has deposed that he was admitted to the hospital for five days and thereafter he lodged the FIR. I have given my thoughtful consideration to the said evidence of PW-1 and I find that PW-1 has stated that--"I got treatment in the Kailashahar Hospital for five days. After coming from the Hospital, one complaint petition was lodged to the police station by me which was written by one Advocate Clerk." At this juncture, I have carefully gone through the evidence of the said Advocate- Clerk [PW-11] and the evidence of IO [PW-12]. PW-11 has categorically deposed that while working as an Advocate's Clerk on 23.08.2016 he had written a complaint lodged by PW-1. He identified the FIR [Exbt.1/A]. PW-12, the IO has stated that while he was posted at Irani PS as SI of Police on 23.08.2016, Inspector Shyamal Mura Singh being the OC of the PS endorsed Irani PS Case No.47 to him for investigation. In course of his Page 44 investigation he examined the FIR and thereafter went to RGM Hospital and examined witness/complainant-victim and thereafter on reference by the victim he went to the place of occurrence. In view of such statements of PW-11 and PW-12, it is established that the FIR was registered on 23.08.2016. The statements of PW-1 that he got treatment in the Kailashahar Hospital for five days and after coming from the hospital he lodged one complaint to the police station which was written by one Advocate Clerk, in my opinion, should be read and understood together with the evidence let in by PW-1, PW-11 and PW-12.

52. Moreso, during cross-examination, PW-4 has specifically stated that she has informed the incident to the police on her way to the hospital by the police vehicle. On minute scrutiny of the deposition of PW- 12, it becomes clear that FIR No.47 under Irani PS was registered on 23- 08-2016 and on the same day the case was endorsed to PW-12 for investigation. I have given my conscious look to the written complaint [Exbt.1/A]. It is revealed that the written complaint lodged by the informant Abdul Haque was received by Irani PS at 22:41 hours on 23.08.2016 which was registered as Irani PS Case No. 2016 IRN 047, under Sections 341/326/307/34 of IPC. It is also noticed that PW-11, Joynal Uddin, being the writer of the said complaint has put his signature on 23.08.2016. I have further noticed that the said complaint was Page 45 forwarded along with the printed FIR to the Chief Judicial Magistrate, Unakoti Tripura, Kailashahar which was received by the said court under its seal dated 24.08.2016. This fact has also been revealed on verification of the records of learned Chief Judicial Magistrate's court when learned court had passed the following order on 24.08.2016:-

"HIGH COURT OF TRIPURA Form of Order Sheet District:

Court of:

Present:

Ref. Irani Ps Suit/Case No. 47/16 u/S 341/326/307/34 IPC The State of Tripura Versus _______________________________________ Date of Order of other Signatu Office action taken on order order of proceeding re of with date & dated signature proceeding Court of pleaders of parties when necessary 24/08/2016 Received FIR in c/w Irani P.S.Case No.47/2016 u/s 341/326/307/34 IPC along with ejahar from O/C Irani P.S. Enter in GR No.219/16.

Ask I/O to expedite investigation and send report by 24.09.2016.

Sd/-

Chief Judicial Magistrate, Unakoti, Tripura, Kailashahar"

53. In view of this uncontroverted facts, the oral testimony of PW- 1 regarding lodging of complaint after 5(five) days ought to have been discarded by the learned Addl. Sessions Judge treating the said statement as minor discrepancy beyond records. This statement of PW-1 regarding the date of lodging complaint has not to be read isolatedly, but, considering the overall evidence and materials on record. In my opinion, this is such a Page 46 minor discrepancy which is apparent on the face of record. Furthermore, this cannot be a ground to throw out the entire prosecution case when it has been proved beyond reasonable doubt that they are the respondent nos.1 and 2, but, none others had caused injuries to PW-1 and PW-6 by sharp weapons.

54. The moot question is who committed the crime. PW-1 and PW-6 are the injured witnesses. Their evidences are to be read and understood with due importance and greater weight because injured witnesses are regarded as stamped witnesses. There is no reason to disbelieve their statements when their versions regarding commission of crime by respondent nos. 1 and 2 have been consistently supported and corroborated by other prosecution witnesses.

55. I have given my thoughtful considerations to the submissions of learned counsel appearing on behalf of the respondent nos. 1 and 2 that prosecution case is based on the evidence of related witnesses of the victims. In my opinion, it is well-settled that related witnesses cannot be said to be equivalent to the interested witnesses in absence of any foundation of addressing them as interested witnesses. I find no reason as to why the injured witnesses will save the real culprits and implicate other persons not related to the crime. From the entire cross-examination as well Page 47 as from their examination under Section 313 CrPC put forth by the defence it appears that the accused persons being the full-blooded brothers never suggested that their brother (PW-1) and their nephew (PW-6) sustained injuries in a separate incident.

56. While dealing with the evidentiary value of the related witnesses, Vivian Bose, J., speaking on behalf of a three-Judge Bench in the case of Dalip Singh & Ors. Vrs. State of Punjab, AIR 1953 SC 364, the Hon'ble Supreme Court had held that ----

"26.A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalisation. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts."

57. In Ganapati & Anr. Vrs. State of Tamil Nadu, (2018) 5 SCC 549, the Hon'ble Supreme Court had observed thus--

"15. Merely because the eye-witnesses are family members their evidence cannot per se be discarded. When there is allegation of interestedness, the same has to be established. Mere statement that being relatives of the deceased they are likely to falsely implicate the accused cannot be a ground to discard the evidence which is otherwise cogent Page 48 and credible. Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made [Maranadu and Anr. Vs. State by Inspector of Police, Tamil Nadu, (2008) 16 SCC 529]."

58. Having kept the aforesaid views of the learned Judges, in my opinion, the parents, wife, brothers and sisters are the most natural witnesses. Furthermore, in the instant case, I find no reason to doubt and discard the evidences let in by the injured witnesses, PW-1 and PW-6. In addition, PW-3 is the sister of both the appellant and respondent nos. 1 and

2. If I question myself, what is the interest of the sister to implicate her own brothers falsely with the case? There is nothing available in the record that she has some interest to see her own full-blooded brothers to be punished with the offence. When respondent nos. 1 and 2 being accused persons were noticed about the evidence let in by PW-3 in this regard, during their examinations under Section 313 CrPC, they simply replied that the statement of PW-3 implicating them with the offence was false. The accused-respondent nos. 1 and 2 even have not said that they have enmity with their sister, PW-3. Moreso, PW-3's appearance at the scene of offence is most natural and plausible because her house is close to the place of occurrence as well as to the house of his brother Abdul Kadir, the respondent no.1 so also the house of PW-5. Another striking feature, which learned trial court ought to have taken into account but surprisingly has Page 49 overlooked that PW-5 has voluntarily stated that accused Abdul Kayum has threatened her and her husband not to come to court to depose against them. In the opinion of this court, the incident of such threatening by the accused Abdul Kayum is relevant to his conduct connecting him with the crime. It is worthy to note that the defence has not made any attempt to controvert this statement of PW-5 during cross-examination. The conduct of an accused if examined and read together with other evidence sometimes constitutes an extremely important factor to connect the accused with the crime. PW-5 and PW-7 have stated that the accused persons i.e. the respondent nos. 1 & 2 are the brothers of their husbands. The defence could not elicit any such materials to discredit their evidence as interested witnesses. (Emphasis supplied)

59. From the evidence of prosecution witnesses including PW-1, it comes to light that there are litigations going on over the paternal property, which reveals that there is enmity between the complainant-appellant and the respondent nos. 1 and 2. It is further revealed that on 23.08.2016 both the appellant and the respondent nos. 1 and 2 went to Kailashahar court relating to a case. So, enmity between the appellant and the respondent nos. 1 and 2 becomes apparent, which suggest a genuine motive to cause harm to PW-1 and of course, PW-6 is the victim of the circumstances. Albeit, in the context of the case, motive loses its significance because there exists Page 50 reliable ocular testimony out of which prosecution case can safely be said to be proved by direct and cogent evidence.

60. I have considered the submission of Mr. Chakraborty, learned counsel for the respondent nos. 1 and 2 that non-recovery of the weapon of offence is fatal to the prosecution case and the benefit should be given to the accused persons. I cannot agree with the said submission of learned counsel for the reason that it is now well settled that recovery of weapon of offence is not sine qua non to establish the offence which otherwise has been established by direct and cogent evidence of the prosecution witnesses and other relevant materials.

61. On complete re-appreciation of evidence, in my ultimate analysis, the direct, unanimous accounts of the eye-witnesses, particularly, the injured eye-witnesses [PW-1 and PW-6], were discounted without cogent reasons and thus, disconnected respondent nos. 1 and 2 with the crime on the basis of a perfunctory consideration of evidence. The learned trial court allows itself to be studded with fanciful doubts, rejects creditworthy evidence for slender reasons and takes a view of the evidence which is but barely possible, calling for interference of this court. In the light of above manifest errors both on points of law and relevant material facts, I am compelled to say that the present case is one of those exceptional cases in which it is found that the order of acquittal suffers Page 51 from glaring illegality, resulting into miscarriage of justice. The decision of the learned trial Judge is wholly erroneous and demonstrably unsustainable because of wrong appreciation of evidence. When a Court of Law gives undue importance to the irrelevant and inadmissible materials, which outrageously defies logic and suffers from the vice of irrationality and found to be based on some unrealistic conjectures, such perverse findings must be interfered with to correct manifest injustice and establish the rule of law.

62. What findings can be held to be perverse has been re-iterated by Hon'ble Supreme Court recently in Geeta Devi (supra), which would be useful to extract, in the context of the case in hand:- [SCC OnLine 4, para 16].

"16. When the findings of fact recorded by a court can be held to be perverse has been dealt with and considered in para 20 of the aforesaid decision, which reads as under : (Babu case [Babu v. State of Kerala, (2010) 9 SCC 189 : (2010) 3 SCC (Cri) 1179] , SCC p. 199) "20. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material. The finding may also be said to be perverse if it is "against the weight of evidence", or if the finding so outrageously defies logic as to suffer from the vice of irrationality.

(Vide Rajinder Kumar Kindra v. Delhi Admn. [Rajinder Kumar Kindra v. Delhi Admn., (1984) 4 SCC 635 : 1985 SCC (L&S) 131] , Excise & Taxation Officer cum Assessing Authority v. Gopi Nath & Sons [Excise & Taxation Officer cum Assessing Authority v. Gopi Nath & Sons, 1992 Supp (2) SCC 312] , Triveni Rubber & Plastics v. CCE [Triveni Rubber & Plastics v. CCE, 1994 Supp (3) SCC 665] , Gaya Din v. Hanuman Prasad [Gaya Din v. Hanuman Prasad, (2001) 1 SCC 501] , Arulvelu v. State [Arulvelu v. State, (2009) 10 SCC 206 :

Page 52 (2010) 1 SCC (Cri) 288] and Gamini Bala Koteswara Rao v. State of A.P. [Gamini Bala Koteswara Rao v. State of A.P., (2009) 10 SCC 636 : (2010) 1 SCC (Cri) 372] )"

It is further observed, after following the decision of this Court in Kuldeep Singh v. Commr. of Police [Kuldeep Singh v. Commr. of Police, (1999) 2 SCC 10 : 1999 SCC (L&S) 429], that if a decision is arrived at on the basis of no evidence or thoroughly unreliable evidence and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, the conclusions would not be treated as perverse and the findings would not be interfered with."

63. On re-appreciation of the evidence of prosecution witnesses, it is noticed that learned Additional Sessions Judge while recording the judgment of acquittal, ignored the direct and cogent evidence of the prosecution witnesses, which do not at all sound good and thus, the learned trial court has committed patent illegality in acquitting the respondent nos. 1 and 2, the original accused persons. I am compelled to say that none of the findings of facts arrived at by learned trial Judge is acceptable, which can be relied upon by this court.

64. In the light of above discussions, I am inclined to set aside and quash the judgment and order of the acquittal passed by learned Addl. Sessions Judge, Unakoti Judicial District, Kailashahar in Case No. ST(Type-1) 29 of 2017 and accordingly, the same are quashed and thus reversed.

65. I have already held that the prosecution has been able to establish the charges beyond reasonable doubt that only and-only the Page 53 respondent nos. 1 and 2 [accused persons] had assaulted PW-1 and PW-6 by sharp cutting weapons like "dao" and "axe". However, from the evidence of Doctor [PW-10], it appears that none of the injuries can be designated as "grievous" as contemplated under Section 320 of IPC dealing with the definition of 'grievous hurt', which is as under:

"320.Greivous hurt.--The following kinds of hurt only are designated as "grievous":

First.--Emasculation.

Secondly,-- Permanent privation of the sight of either eye. Thirdly,--Permanent privation of the hearing of either ear.

Fourthly.--Privation of any member or joint. Fifthly.--Destruction or permanent impairing of the powers of any member or joint.

Sixthly.--Permanent disfiguration of the head or face. Seventhly.--Fracture or dislocation of bone or tooth. Eighthly.--Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits."

As I do not find any such injuries as stated above, sustained by PW-1 and PW-6, I can easily say that charge framed under Section 326 IPC has not been established. However, nature of injuries suffered by PW-1 and PW-6 and the articles/weapons used to cause such injuries clearly suggests the offence committed under Section 324 of IPC since it has been proved beyond reasonable doubt that the respondent nos. 1 and 2 voluntarily caused hurt and such hurt was caused by means of an instrument referred to in Section 324 of IPC. As such, the respondent nos. 1 and 2, the original Page 54 accused persons have been held guilty of committing offence under Section 324 of IPC and accordingly, I convict the respondent nos. 1 and 2 under Section 324 of IPC. Section 324 of IPC prescribes punishment to suffer imprisonment of either description for a term which may extend to 3 years or with fine or with both.

66. In view of such prescription of period of imprisonment, I sentence the accused-respondent nos. 1 and 2 to suffer rigorous imprisonment for 1(one) year along with a fine of Rs.20,000/- each and in default of payment of fine, they shall suffer simple imprisonment for further 3(three) months.

67. Fine money, if realized, shall be paid to the victims i.e. PW-1, Abdul Haque and PW-6, Joynal Haque.

68. The accused respondent nos. 1 and 2, namely, Md. Abdul Kadir and Md. Abdul Kayum are directed to surrender before the court of learned Additional Sessions Judge, Unakoti, Kailashahar, immediately. In the event of failure, learned Additional Sessions Judge shall ensure the arrest of the accused-respondent nos. 1 and 2 to serve the sentence as ordered by this judgment. It is made clear that the period of imprisonment the respondent nos. 1 and 2 have already undergone after their arrest and during trial shall be set off.

Page 55

69. The appeal is, accordingly, allowed and disposed of.

Send back the LCRs along with a copy of this judgment forthwith. A copy be also supplied to learned counsel for the accused- respondent nos. 1 and 2 immediately.

JUDGE

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Tripura High Court