Gauhati High Court
Page No.# 1/2 vs The State Of Assam on 4 April, 2025
Page No.# 1/21
GAHC010122432012
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Rev.P./484/2012
SMTI. SARATHI BALA BARMAN and ANR.
W/O SRI RAMESWAR BARMAN R/O VILL- NO.2, GARUGAON KUSIAKATA,
P.S. BONGAIGAON, DIST. BONGAIGAON, ASSAM,
2: SMTI ANITA BARMAN
W/O SRI RAMENYA BARMAN R/O VILL- NO.2
GARUGAON KUSIAKATA
P.S. BONGAIGAON
DIST. BONGAIGAON
ASSA
VERSUS
THE STATE OF ASSAM
Advocate for the Petitioner : MRS.J CHAKRABORTY, MR.N SARKAR
Advocate for the Respondent : , PP, ASSAM
BEFORE HON'BLE MR. JUSTICE KAUSHIK GOSWAMI Date of hearing : 04.04.2025.
Date of Judgment : 04.04.2025.
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JUDGMENT & O R D E R (ORAL)
Heard Mr. N. Sarkar, learned counsel for the accused/petitioners. Also heard Mr. B. Sarma, learned Addl. Public Prosecutor for the State respondent.
2. This petition is filed under Section 397 of the CrPC, 1973 read with Section 401 and Section 482 of the CrPC seeking setting aside and quashing of the impugned Judgment and Order dated 20.07.2011 passed by the learned Chief Judicial Magistrate, Bongaigaon (hereinafter referred to as the Trial Court) in GR Case No. 491/2009, whereby the accused/petitioners were convicted under Section 341/325/34 of IPC and sentenced to undergo Simple Imprisonment for one month under Section 341 IPC and Simple Imprisonment of one year and a fine of Rs. 500/- under Section 325 of IPC, in default, Simple Imprisonment for one month and the impugned Judgment and Order dated 30.08.2012 passed by the learned Addl. Sessions Judge (FTC), Bongaigaon ( hereinafter referred to as the Appellate Court ) in Criminal Appeal No. 25(3)/2011, whereby the Appellate Court partly modified the Judgment passed by the Trial Court by acquitting the accused/petitioners under Section 341 of IPC and reducing the sentence of imprisonment under Section 325 of IPC to six months instead of one year by maintaining the fine.
3. Mr. N. Sarkar, learned counsel for the accused/petitioners submits at the outset that the accused/petitioner No. 1 i.e. Smt. Sarathi Bala Barman during the pendency of the petition expired on 23.12.2024 and accordingly produced a copy of the Death Certificate issued by the Govt. of Assam, Dept of Health and Family Welfare, which is kept on record and marked as 'X'.
4. The brief facts of the case is that on 09.09.2009 at 1:30 am, one Rameswar Barman knocked the door of the informant and since she refused to open the door, he left her house by saying that he would take revenge for the same. It is the further Page No.# 3/21 case of the prosecution that on the following morning, since the informant apprised the villagers about the same, the accused/petitioners attacked her on village path and assaulted her with lathi, for which she sustained serious injury on her forehand. It is the further case of the prosecution that again at 6:00 pm, the accused/petitioners entered into her house and assaulted her and her minor daughter with a lathi, as a result of which, her left wrist was broken and she sustained injuries on head and forehead and her daughter sustained injury on her right finger. Accordingly, on 12.09.2009, the informant lodged FIR before the jurisdictional Police Station which was registered as Bongaigoan Police Station Case No. 363/2009 under Section 341/447/325/506 of IPC. Thereafter, the Investigating Officer completed the investigation and submitted chargesheet under Section 341/325/506/34 of IPC against the accused/petitioners.
5. The Trial Court framed charges under Section 341/325/506/34 of IPC against both the accused/petitioners. During trial, the prosecution examined as many as 6 prosecution witnesses including the Medical Officer and Investigating Officer whereas the accused/petitioners have been examined under Section 313 of CrPC, wherein the plea of defence was total denial. No defence witness was adduced. The Trial Court after closure of evidence and hearing the parties was pleased to hold the accused/petitioners guilty under Section 341/325/34 of IPC and accordingly convicted thereafter.
6. Aggrieved by such conviction, the accused/petitioners filed appeal before the Appellate Court and the Appellate Court acquitted the accused/petitioners under Section 341 of IPC. However, while maintaining the conviction under Section 325 of IPC, modified/reduced the sentence of imprisonment from one year to six months. Situated thus, the present revision petition has been filed.
7. Mr. N. Sarkar, learned counsel for the accused/petitioners submits that the Trial Court ought not have convicted the accused/petitioners in the absence of reliable Page No.# 4/21 evidence to the effect that the Investigating Agency has not seized and produced the lathi allegedly used in the offence before the Trial Court and as such, the conviction and sentence passed is erroneous in law.
In support of the aforesaid submission, he relies upon the following decisions:-
1)Kipa Sero Vs. State of Arunachal Pradesh, reported in (2005) 4 GLT 86.
2) Meenakshi Sundaram Vs. State represented by Inspector of Police Nagamalai, reported in (2017) SCC Mad 30175.
8. Mr. N. Sarkar, learned counsel further submits that the evidence of PW-3 based on which the Trial Court has convicted the accused/petitioners is not put to the accused/petitioners while they were examined under Section 313 of CrPC and therefore, the trial stands vitiated and hence, the Judgment and Order of the Trial Court as well as the Appellate Court is palpably and manifestly erroneous.
In support of the aforesaid submission, he relies upon the decision of the Apex Court in the case of Reena Hazarika Vs. State of Assam reported in (2019) 13 SCC 289.
9. He further submits that the material prosecution witnesses having improved their versions from that of the initial statement made before the Investigating Officer under Section 161 of CrPC, such omission also vitiates the trial.
In support of the aforesaid submissions, he relies upon the decision of the Apex Court in the case of State of Rajasthan Vs. Rajendra Singh , reported in (2009) 11 SCC 106.
10. He further submits that none of the prosecution witnesses have deposed before the Court as regards who have claimed to witness the incident as regards out of the two accused/petitioners which one have dealt the lathi blow on the forehead of the Page No.# 5/21 informant. He accordingly submits that there being no specific allegations against the accused/petitioners, the conviction based on such omnibus statements ought to be interfered by this Court while exercising revisional jurisdiction.
11. Per contra, Mr. B. Sarma, learned Addl. Public Prosecutor for the State respondent submits that mere not putting the evidence of PW-3 before the accused/petitioners while they were examined under Section 313 of CrPC shall not vitiate the trial unless and until the accused/petitioners shows as how the same has caused prejudice to them.
12. I have given my prudent consideration to the arguments advanced by the learned counsels appearing for the contesting parties and I have perused the materials available on record. I have also considered the case laws cited at the Bar.
13. It appears that on 11.09.2009, the victim/PW-1 lodged an FIR stating interalia that on 09.09.2009 at 1:50 am, the accused/petitioner No. 1 called her to open the door but since she did not open the door, the accused/petitioners returned to their home after telling her that they will take revenge. It is further alleged that on 10.09.2009 at about 10:00 am, the accused No. 2 attacked her and wounded her left hand and forehead by stick.
14. It appears that PW-1 during trial deposed that one Rameshwar Barman on the night before the occurrence came to her house and called her to open the door but since she did not open the door, he told her that he would take revenge. It further appears that PW-1 further deposed that on the next day at about 4 O'clock, two accused/petitioners entered into her house and assaulted her, as a result of which, her hand was broken and they also assaulted her 7 year old daughter, as a result of which, her finger was broken.
During cross examination, PW-1 clarified that the accused/petitioners also brought a case against her and the same is being tried and that she was assaulted Page No.# 6/21 with wooden lathi.
15. It appears that PW-2, who is a co-villager deposed that hearing- shouting, he came to the place of occurrence where he found that there was a scuffle going on in the house of PW-1.
16. It appears that PW-3, who is another co-villager, deposed that hearing shouting, he came to the place of occurrence and found the accused/petitioners entering into the house of PW-1 and assaulting her with bamboo lathi and as a result of which her hand was broken.
17. It further appears that PW-4, who is another co-villager deposed that hearing shouting, he came to the place of occurrence and found the informant lying on the ground and the accused/petitioners running towards their house.
18. It appears that PW-5, who is the Medical Officer examined PW-1 and her daughter and on examination of PW-1, she found the following injuries:-
(a) Tenderness present on the left forearm, left arm and left check.
(b) Fracture on left Ulnar bone as per X-ray report.
19. It appears that PW-5 opined that injury No.1 is simple and caused by blunt object and injury No.2 is grievous injury caused by blunt object. It appears that on examining Tutu Barman i.e. daughter, she found tenderness on right hand of little finger. In her opinion, the said injury was simple in nature and caused by blunt object.
20. It appears that PW-6, who is the Investigating Officer, deposed in his testimony that after receiving the FIR, he investigated the case and examined the victim as well as other witnesses and accordingly submitted chargesheet.
It appears that during cross examination of PW-6, he clarified that PW-3 did not state Page No.# 7/21 before him during his examination under Section 161 of CrPC that the accused/petitioners had entered the house of the PW-1 and broken her hand. He further clarified that PW-4 has not stated during interrogation under Section 161 of CrPC that he had seen the PW-1 lying on the floor and the accused/petitioners running from the place of occurrence.
21. It further appears that after the closure of the prosecution evidences, the accused/petitioners were examined under Section 313 of CrPC and a close perusal of Section 313 of CrPC examination statement of the accused/petitioners indicates that no question as regards the deposition of PW-3 was put to the accused/petitioners. It appears that it is PW-3, who has specifically deposed that the accused/petitioners assaulted the PW-1 by entering into her house. That apart, the other prosecution witnesses PW-2 and PW-4 have not seen the assault.
22. That being so, the deposition of PW-3 being one of the crucial incriminating circumstance, ought to have been put to the accused/petitioners under Section 313 of CrPC examination and the same having not been put, serious prejudice has been caused to the accused/petitioners for which the trial gets vitiated.
23. Reference in this regard is made to the decision of the Apex Court in the case of Sharad Biridhichand Sarda Vs. State of Maharashtra reported in AIR 1984 SC 1622, wherein the Apex Court has held that unless the incriminating circumstance is put to the accused/petitioners in his examination under Section 342/313 CrPC, the same cannot be used against him.
24. Relevant paragraphs 142, 143 and 144 of the aforesaid judgment of the Apex Court are reproduced hereunder for ready reference:-
"142.Apart from the aforesaid comments there is one vital defect in some of the circumstances mentioned above and relied upon by the High Court, viz., Page No.# 8/21 circumstances Nos. 4, 5, 6, 8, 9, 11, 12, 13, 16 and 17. As these circumstances were not put to the appellant in his statement under Section 313 of the Criminal Procedure Code they must be completely excluded from consideration because the appellant did not have any chance to explain them. This has been consistently held by this Court as far back as 1953 where in the case of Hate Singh Bhagat Singh v. State of Madhya Bharat AIR 1953 SC 468 this Court held that any circumstance in respect of which an accused was not examined under Section 342 of the Criminal Procedure Code cannot be used against him. Ever since this decision, there is a catena of authorities of this Court uniformly taking the view that unless the circumstance appearing against an accused is put to him in his examination under Section 342 or Section 313 of the Criminal Procedure Code, the same cannot be used against him. In Shamu Balu Chaugule v. State of Maharashtra, (1976) 1 SCC 438: (AIR 1976 SC 557) this Court held thus :
"The fact that the appellant was said to be absconding, not having been put to him under Section 342, Criminal Procedure Code, could not be used against him."
143. To the same effect is another decision of this Court in Harijan Megha Jesha v. State of Gujarat, AIR 1979 SC 1566 where the following observations were made:
"In the first place, he stated that on the personal search of the appellant, a chadi was found which was bloodstained and according to the report of the serologist, it contained human blood. Unfortunately, however, as this circumstance was not put to the accused in his statement under Section 342, the prosecution cannot be permitted to rely on this statement in order to convict the appellant."
144.It is not necessary for us to multiply authorities on this point as this question now stands concluded by several decisions of this Court. In this view of the matter, the circumstances which were not put to the appellant in his examination under Section 313 of the Criminal Procedure Code have to be completely excluded from consideration."
25. Reference is also made to the decision of the Apex Court in the case of Inspector of Customs, Ankhnoor, Jammu & Kashmir Vs. Yashpal & Another reported in (2009) 4 SCC 769. Relevant paragraphs 14, 15 and 16 are reproduced hereunder for ready reference:-
"14. Section 313 Cr.P.C. reads as follows:
"313. Power to examine the accused.--(1) In every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the court--
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(a) may at any stage, without previously warning the accused, put such questions to him as the court considers necessary;
(b) shall, after the witnesses for the prosecution have been examined and before he is called on for his defence, question him generally on the case:
Provided that in a summons case, where the court has dispensed with the personal attendance of the accused, it may also dispense with his examination under clause (b). (2) No oath shall be administered to the accused when he is examined under sub- section (1).
(3) The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them.
(4) The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed."
15. "9. The forerunner of the said provision in the Old Code was Section 342 therein. It was worded thus:
"342. Power to examine the accused.-(1) For the purpose of enabling the accused to explain any circumstances appearing in the evidence against him, the court may, at any stage of any inquiry or trial, without previously warning the accused, put such questions to him as the court considers necessary, and shall, for the purpose aforesaid, question him generally on the case after the witnesses for the prosecution have been examined and before he is called on for his defence.
(2) The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them; but the court and the jury (if any) may draw such inference from such refusal or answers as it thinks just.
(3) The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed.
(4) No oath shall be administered to the accused when he is examined under sub-section (1)."
10. Dealing with the position as the section remained in the original form under the Old Code, a three-Judge Bench of this Court (Fazal Ali, Mahajan and Bose, JJ.) interpreted the section in Hate Singh Bhagat Singh v. State of Madhya Bharat that:
"8...The statements of the accused recorded by the Committing Magistrate and Page No.# 10/21 the Sessions Judge are intended in India to take the place of what in England and in America he would be free to state in his own way in the witness-box. They have to be received in evidence and treated as evidence and be duly considered at the trial."
11. Parliament, thereafter, introduced Section 342-A in the Old Code (which corresponds to Section 315 of the present Code) by which permission is given to an accused to offer himself to be examined as a witness if he so chose.
12. In Bibhuti BhusanDas Gupta Vs. State of W.B, another three-Judge Bench..... dealing with the combined operation of Sections 342 and 342-A of the Old Code made the following observations:
"7....Under Section 342-A only the accused can give evidence in person and his pleader's evidence cannot be treated as his. The answers of the accused under Section 342 is intended to be a substitute for the evidence which he can give as a witness under Section 342-A. The privilege and the duty of answering questions under Section 342 cannot be delegated to a pleader. No doubt the form of the summons show that the pleader may answer the charges against the accused, but in so answering the charges, he cannot do what only the accused can do personally. The pleader may be permitted to represent the accused while the prosecution evidence is being taken. But at the close of the prosecution evidence the accused must be questioned and his pleader cannot be examined in his place."
13. The Law Commission in its Forty-first Report considered the aforesaid decisions and also various other points of view highlighted by legal men and then made the report after reaching the conclusion that:
(i) in summons cases where the personal attendance of the accused has been dispensed with, either under Section 205 or under Section 540-A, the court should have a power to dispense with his examination; and
(ii) in other cases, even where his personal attendance has been dispensed with, the accused should be examined personally.
14. The said recommendation has been followed up by Parliament and Section 313 of the Code, as is presently worded, is the result of it. It would appear prima facie that the court has discretion to dispense with the physical presence of an accused during such questioning only in summons cases and in all other cases it is incumbent on the court to question the accused personally after closing prosecution evidence. Nonetheless, the Law Commission was conscious that the rule may have to be relaxed eventually, particularly when there is improvement in literacy and legal-aid facilities in the country. This thinking can be discerned from the following suggestion made by the Law Commission in the same report:
Page No.# 11/21 "24.45. Section 342 should be retained. - We have, after considering the various aspects of the matter as summarised above, come to the conclusion that Section 342 should not be deleted. In our opinion, the stage has not yet come for it being removed from the statute-book. With further increase in literacy and with better facilities for legal aid, it may be possible to take that step in the future."
15. The position has to be considered in the present set-up, particularly after the lapse of more than a quarter of a century through which period revolutionary changes in the technology of communication and transmission have taken place, thanks to the advent of computerisation. There is marked improvement in the facilities for legal aid in the country during the preceding twenty-five years.
Hence a fresh look can be made now. We are mindful of the fact that a two- Judge Bench in Usha K. Pillai V. Raj K. Srinivas has found that the examination of an accused personally can be dispensed with only in summons case. Their Lordships were considering a case where the offence involved was Section 363 IPC. The two-Judge Bench held thus:
"4....A warrant case is defined as one relating to an offence punishable with death, imprisonment for life or imprisonment for a term exceeding two years. Since an offence under Section 363 IPC is punishable with imprisonment for a term exceeding two years it is a warrant case and not a summons case. Therefore, even in cases where the court has dispensed with the personal attendance of the accused under Section 205(1) or Section 317 of the Code, the court cannot dispense with the examination of the accused under clause (b) of Section 313 of the Code because such examination is mandatory."
16. Contextually we cannot bypass the decision of a three-Judge Bench of this Court in Shivaji Sahabrao Bobade v. State of Maharashtra as the Bench has widened the sweep of the provision concerning examination of the accused after closing prosecution evidence. Learned Judges in that case were considering the fallout of omission to put to the accused a question on a vital circumstance appearing against him in the prosecution evidence. The three-Judge Bench made the following observations therein:
"16.....It is trite law, nevertheless fundamental, that the prisoner's attention should be drawn to every inculpatory material so as to enable him to explain it. This is the basic fairness of a criminal trial and failures in this area may gravely imperil the validity of the trial itself, if consequential miscarriage of justice has flowed. However, where such an omission has occurred it does not ipso facto vitiate the proceedings and prejudice occasioned by such defect must be established by the accused. In the event of evidentiary material not being put to the accused, the court must ordinarily eschew such material from consideration. It is also open to the appellate court to call upon the counsel for Page No.# 12/21 the accused to show what explanation the accused has as regards the circumstances established against him but not put to him and if the accused is unable to offer the appellate court any plausible or reasonable explanation of such circumstances, the court may assume that no acceptable answer exists and that even if the accused had been questioned at the proper time in the trial court he would not have been able to furnish any good ground to get out of the circumstances on which the trial court had relied for its conviction."
17. The above approach shows that some dilution of the rigour of the provision can be made even in the light of a contention raised by the accused that non-questioning him on a vital circumstance by the trial court has caused prejudice to him. The explanation offered by the counsel of the accused at the appellate stage was held to be a sufficient substitute for the answers given by the accused himself.
18. What is the object of examination of an accused under Section 313 of the Code? The section itself declares the object in explicit language that it is "for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him". In Jai Dev v. State of Punjab Gajendragadkar, J. (as he then was) speaking for a three-Judge Bench has focused on the ultimate test in determining whether the provision has been fairly complied with. He observed thus:
"21....The ultimate test in determining whether or not the accused has been fairly examined under Section 342 would be to inquire whether, having regard to all the questions put to him, he did get an opportunity to say what he wanted to say in respect of prosecution case against him. If it appears that the examination of the accused person was defective and thereby a prejudice has been caused to him, that would no doubt be a serious infirmity."
19. Thus it is well settled that the provision is mainly intended to benefit the accused and as its corollary to benefit the court in reaching the final conclusion.
20. At the same time it should be borne in mind that the provision is not intended to nail him to any position, but to comply with the most salutary principle of natural justice enshrined in the maxim audi alteram partem. The word "may" in clause (a) of sub- section (1) in Section 313 of the Code indicates, without any doubt, that even if the court does not put any question under that clause the accused cannot raise any grievance for it. But if the court fails to put the needed question under clause (b) of the sub-section it would result in a handicap to the accused and he can legitimately claim that no evidence, without affording him the opportunity to explain, can be used against him. It is now well settled that a circumstance about which the accused was not asked to explain cannot be used against him.
21. But the situation to be considered now is whether, with the revolutionary change in technology of communication and transmission and the marked improvement in facilities for legal aid in the country, is it necessary that in all cases the accused must answer by personally remaining present in court. We clarify that this is the requirement Page No.# 13/21 and would be the general rule. However, if remaining present involves undue hardship and large expense, could the court not alleviate the difficulties. If the court holds the view that the situation in which he made such a plea is genuine, should the court say that he has no escape but he must undergo all the tribulations and hardships and answer such questions personally presenting himself in court. If there are other accused in the same case, and the court has already completed their questioning, should they too wait for long without their case reaching finality, or without registering further progress of their trial until their co-accused is able to attend the court personally and answer the court questions? Why should a criminal court be rendered helpless in such a situation?
22. The one category of offences which is specifically exempted from the rigour of Section 313(1)(b) of the Code is "summons cases". It must be remembered that every case in which the offence triable is punishable with imprisonment for a term not exceeding two years is a "summons case". Thus, all other offences generally belong to a different category altogether among which are included offences punishable with varying sentences from imprisonment for three years up to imprisonment for life and even right up to death penalty. Hence there are several offences in that category which are far less serious in gravity compared with grave and very grave offences. Even in cases involving less serious offences, can not the court extend a helping hand to an accused who is placed in a predicament deserving such a help?
23. Section 243(1) of the Code enables the accused, who is involved in the trial of warrant case instituted on police report, to put in any written statement. When any such statement is filed the court is obliged to make it part of the record of the case. Even if such case is not instituted on police report the accused has the same right (vide Section 247). Even the accused involved in offences exclusively triable by the Court of Session can also exercise such a right to put in written statements (Section 233(2) of the Code). It is common knowledge that most of such written statements, if not all, are prepared by the counsel of the accused. If such written statements can be treated as statements directly emanating from the accused, hook, line and sinker, why not the answers given by him in the manner set out hereinafter, in special contingencies, be afforded the same worth.
24. We think that a pragmatic and humanistic approach is warranted in regard to such special exigencies. The word "shall" in clause (b) to Section 313(1) of the Code is to be interpreted as obligatory on the court and it should be complied with when it is for the benefit of the accused. But if it works to his great prejudice and disadvantage the court should, in appropriate cases, e.g., if the accused satisfies the court that he is unable to reach the venue of the court, except by bearing huge expenditure or that he is unable to travel the long journey due to physical incapacity or some such other hardship, relieve him of such hardship and at the same time adopt a measure to comply with the requirements in Section 313 of the Code in a substantial manner. How could this be achieved?
Page No.# 14/21 The above position was indicated in Basav Raj R Patil v. State of Karnataka ( 2000 (8) SCC 740) and Keya Mukherjee v. Magma Leasing Ltd. and Ors.
16. It is to be noted that in the instant case there was no reference to any of the incriminating materials. If the foundation of the prosecution case was the alleged confession before the Customs Authorities, that material was not brought to the notice of the accused persons."
26. Reading of the aforesaid judgment of the Apex Court, it appears that in that case, the foundation of the prosecution case being the alleged confession made by the accused/petitioners before the Customs Authorities having not been brought to the notice of the accused/petitioners during their examination under Section 313 of CrPC, the Apex Court was pleased to hold that the trial was vitiated.
27. In the present case, it is the evidence of PW-3 alone on the basis of which the impugned conviction was rendered by the Trial Court and affirmed by the Appellate Court which admittedly was not put to the accused/petitioners under Section 313 of CrPC examinations. That being so, the accused/petitioners did not get opportunity to explain the aforesaid incriminating circumstance available against them. Hence, it can be safely concluded that the accused/petitioners did not get a fair opportunity in the trial. Hence, the evidence of PW-3 cannot be looked into. If the evidence of PW-3 is taken away, the case rest upon the evidence of PW-1, the victim herself, PW-2 & PW-
4.
28. It appears that PW-1 has improved her version than that of the FIR and has also not indicated in her deposition before the Trial Court as regards, who out of the two accused/petitioners has dealt the lathi blow. That apart, though PW-1 in the FIR has stated that the accused No. 2 attacked and wounded her in her hand and forehead by stick, however, during trial, PW-1 deposed that the two accused/petitioners entered her house and assaulted her as a result of which her hand was broken. The FIR being not a substantial piece of evidence cannot be relied. It appears that in the present case, the PW-1 in her testimony before the Trial Court did not state that the accused Page No.# 15/21 No. 2 attacked and wounded her. In fact, she has merely given an omnibus statement that the accused/petitioners have assaulted her without specifically assigning any role to the accused/petitioners. As such, the statement of PW-1/victim appears to be doubtful. It further appears that PW-2 and PW-4 though have not seen the assault, however, during trial has deposed that the accused/petitioners were present at the place of occurrence. However, the same was not disclosed before the Police while their statements were recorded under Section 161 CrPC. Such omission of material particular certainly contradicts their testimony before the Trial Court and it creates a serious doubt about the truthfulness of their versions. Hence, such statements are inadmissible in law.
29. Reference is made to paragraph 7 of the decision of the Apex Court in the case of State of Rajasthan Vs. Rajendra Singh (Supra) , which is reproduced hereunder for ready reference:-
"7. It was submitted by the learned counsel for the State that as many as six witnesses were found injured and that would establish their presence at the place of the incident. In our opinion, this contention is of no help to the appellant because their evidence has not been discarded on the ground that they were not present. Their evidence was discarded because they were found not telling the truth before the Court. It was also submitted by the learned counsel that the evidence of PWS 1 to 4 stood corroborated by two independent witnesses, namely, Ramjilal and Jeevan Singh. PW 8 Ramjilal had stated that he had gone to the spot on hearing the sound of a gunshot and tried to snatch away the gun from the respondent. But he was contradicted by his police statement wherein he had not stated anything regarding snatching of the gun. This omission on such a vital point has to be regarded as a contradiction and it creates a serious doubt about the truthfulness of his version. PW 9 Jeevan Singh had stated that he had also rushed to the spot on hearing the sound of a gunshot. He further stated that he had made an attempt to save Harveer and in doing so, he had received an injury. He had not so stated before the police. This also shows that this witness had made a material improvement before the Court in order to make his evidence acceptable."
30. It further appears that the alleged weapon of assault though was seized but the same was not produced before the Trial Court. This further weakens the case of the prosecution.
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31. Reference is made to paragraphs 38, 39, 40 and 42 of the decision of the Co- ordinate Bench of this Court in the case of Kipa Sero Vs. State of Arunachal Pradesh (Supra), which are reproduced hereunder for ready reference:-
"(38) In the case of Mohd. Aman and Anr. Vs. The State of Rajasthan, 1997 Cr. L. R. (SC) 452, the Apex Court noticing that the seized articles which could be the best evidence in the proof of the claim of seizure having not been produced and exhibited during the trial was fatal to the prosecution case. In the instant case also apart from non-production of the most important article, i.e., the dao or knife, allegedly used by the accused-appellant coupled with the defence version that the injuries were sustained by the victims from the sharp bamboo sticks makes the prosecution weak.
(39) In the case of Kallikatt Kunhu Vs. State of Kerala, AIR 2000 SC 1235, the eye witnesses stated that the dagger was used to inflict injuries upon the deceased. However, the Apex Court found that if that be so, the dagger could not have been enclosed in a sheath. It should have been found unsheathed and ought to have some blood stains. Under those circumstances, the Apex Court held that the same strongly probabilised the version put forward by the appellant that the incident did not take place in the manner narrated by the prosecution witnesses. It was observed by the Apex Court that if the dagger was not used to inflict injuries there was no weapon of offence produced before the learned trial court.
(40) In the instant case also apart from the fact that the seized articles were not produced, most importantly the weapon allegedly used by the accused- appellant, it is also not the case of the prosecution that there were blood stains. All these factors have rendered the prosecution case highly improbable. As observed above, no amount of suspicion, howsoever, strong it may be can lead to any conviction. In the instant case also there might be suspicion about the conduct of the accused-appellant, but at the same time having regard to the fact that there is inherent contradictions in the prosecution case coupled with the fatal discrepancy of non-production of the seized articles, more importantly, the dao or knife allegedly used by the accused-appellant has made the prosecution case weak. In such circumstance, it cannot be said that the offence allegedly committed by the accused-appellant has been proved beyond reasonable doubt.
(42) For the foregoing reasons and discussions, i have no hesitation to hold that the prosecution has failed to establish the case against the accused-appellant beyond all reasonable doubt. Consequently, the accused-appellant deserves acquittal."
32. Reference is also made to paragraphs 4, 6 and 7 of the Co-ordinate Bench of the Madras High Court in the case of Meenakshi Sundaram Vs. State Represented by Inspector of Police Nagamalai (Supra) , which are reproduced hereunder for ready reference:-
Page No.# 17/21 "4. The learned counsel for the petitioner contended that it is a serious flaw on the side of the prosecution and that when the alleged weapon has not been marked, it goes to the very root of the case and in such circumstances, the petitioner/A3 should not have been convicted and in support of his contentions, the learned counsel for the petitioner/A3 has placed reliance upon the unreported judgment of this Court in Criminal Revision Case No. 772 of 2008 [Raja v. State by Sub Inspector of Police, Mahendramangalam Police Station, Dharmapuri District]. For better appreciation, it would be more useful to refer Paragraph Nos. 6 and 7 of the said judgment, which reads as follows:-
"6. The main ground of attack raised by the learned counsel for the petitioner is that the non production of material object namely crowbar alleged used by the accused in the commission of offence is fatal to the case of the prosecution. No doubt, the Courts below, even though pointed out that there is a slackness on the part of the investigation especially in not producing the material object, the courts below have concurrently held that by itself will not be a ground to acquit the accused as the witnesses have spoken in unison about the use of material object, during the commission of offence. Further, the Courts below have taken note of the evidence adduced by the Doctor to conclude that the prosecution witnesses have sustained injury due to the use of crowbar. In this context, useful reference can be made to the decision of this Court in the case of (Seerangan v. Forest Range Officer, Salem) 2005 Criminal Law Journal 987 wherein this Court had an occasion to consider a case arising out of Tamil Nadu Forest Act. In that case, this Court, by following the decision of the Hounourable Supreme Court in Jitendera v. State of Madhya Pradesh, (2004) 1 Madras Law Weekly (Criminal) 433: 2003 Criminal Law Journal 4985 held that non-production of sandal wood and the ambassador Car in which it was transported is fatal to the case of the prosecution. In that case, sandalwood was transported in an Ambassador Car and the quantum of the sandalwood log was estimated to be 196.5 kilogram.
In that case, the properties seized were not produced during the course of trial. However, at the time of remand of the accused on 29.03.1992, the properties were produced. Since it was night, it was directed to be produced on some other day. Pursuant to such direction, the seized goods were produced on 02.04.1992 before the Judicial Magistrate, Omalur, which were received in Case Property No 156 of 1996. Again the property was returned for safe custody to be kept in the Forest Range Office. The learned Judicial Magistrate, while passing a judgment of conviction held that the Forest Range Officer is empowered to confiscate the property and therefore, non- production of the properties seized is not fatal to the case of the prosecution. This Court, having regard to the above facts, held that the seized goods which were directed to be kept in safe custody ought to have been produced by the respondent at the time of trial. Therefore, this Court in the above decision held that the non-production of the seized goods is fatal to the case of the prosecution.
7. It is pertinent to point out that the main case of the prosecution is that the accused attacked the complainant with crowbar, but, admittedly, the said weapon was never recovered or produced. There is no evidence produced by the investigating Officer as to why he has not produced the weapon. No explanation has been put forth by the prosecution for the non production of the material object, namely, crowbar. Merely, because there is a injury, it will not be a ground to convict the petitioner accused for the offence. The non production of material object itself is fatal to this case."
Page No.# 18/21
6. This Court also perused the records and it is also seen that the prosecution has not taken steps to mark the X-Ray of the victim taken at the time of admission at the Hospital, which is also a flaw.
7. Considering the facts and circumstances of this particular case, this Court finds that the delay in registering the F.I.R., could not be taken as a ground for acquitting the accused, however, when the material object had not been produced and marked before the Court below during the trial and when there is no reason or explanation with regard to the same, as per the decision of this Court in Criminal Revision Case No. 772 of 2008 [Raja v. State by Sub Inspector of Police, Mahendramangalam Police Station, Dharmapuri District], the non- production of the material object would be fatal to the prosecution case. Moreover, this Court finds that the non-marking of the X-Ray is also a flaw, which affects the prosecution case. In such circumstances, the conviction and sentence awarded by the Court below are liable to be set aside."
33. It appears that the Trial Court has convicted the accused/petitioners under Section 341/325/34 of IPC based on such evidence. Paragraphs 15, 17 and 18 of the said Judgment are reproduced hereunder for ready reference:-
"15. In the instant case PW 2 to PW 4 can be said independent eye-witnesses and they are star witnesses. Their evidence clearly shows that the occurrence took place in the house of the informant. PW3 who is the neighbourer of both informant and the accused persons has clearly stated in his testimony that the accused persons assaulted the informant with bamboo lathi after entering into her house. From the evidence of PW4 it can be presumed that the accused persons commissioned the alleged occurrence. I find nothing to discard the evidence of PW 2 to PW 4. It is evident that the accused persons are nearest relatives of the informant. Considering all aspects, I also find nothing to disbelieve the evidence of PW1.
17. Where there is cross-case, Court is to see who the aggressor was. Admittedly there is a cross-case brought by the accused side. In the cross- case, PW 3 & PW 4 are can be said independent witnesses and their evidence is totally silent at what time the occurrence took place. PW 2 of the cross-case is the accused person of this case and her evidence shows that the occurrence took place at 5:00 pm. Her evidence is silent where the occurrence of cross- case took place. In this regard her evidence is supported by her husband. PW 4 of the cross- case had not seen the occurrence. Upon perusal of CD, it appears that PW3 did not state before the police that he saw the occurrence. It is doubtful that PW3 saw the occurrence. In view of discussion made above, it is doubtful that the occurrence of the cross-case took place on 10.09.2009 at 5:00 Pm in the house of the informant. Ext.3 is the injury report which shows that the informant Smt. Draupadi Barman sustained fracture of left ulnar bone. PW 5 Dr. M. Kalita is the medical officer who examined the informant and found the following injuries namely (a) Tenderness on left forearm, left arm and left cheek and (b) Fracture on left Ulnar Page No.# 19/21 bone. Accordingly the fracture on left bone is grievous in nature caused by blunt object. Grievous hurt in defined in the 320 of the IPC. The following kinds of hurt only are said 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 or joint. Sixthly Permanent disfiguration of the head or face.
Seventhly Fracture or dislocation of a 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.
In view of discussions made above it can be said that the fracture of ulnar bone sustained by the informant marked as PW 1 is grievous injury. I find nothing to disbelieve Ext.3 and evidence of PW 5.
18. In the result, the accused persons are found guilty U/Ss.341/325/34 IPC and accordingly they are convicted."
34. Paragraphs 12, 13, 14, 15, 16, 17, 18 of the Appellate Court's Judgment and Order are also reproduced hereunder for ready reference:-
"12. PW-1, the injured has stated in her evidence that as a result of the assault, her left hand has got fracture. During his evidence PW-2, an eye witness deposed that it was dark at the time of incident. He saw the incident, but he did not know who assaulted whom and what was the weapon of assault. PW-3, another eyewitness, has deposed that he went to the place of occurrence after hearing noise and saw that both the accused persons assaulted the victim with lathi, for which the victim's hand was broken. PW-4 went to the place of occurrence after the incident and saw the victim with injuries lying on the floor and accused were returning from the place of occurrence.
13. The evidence thus disclosed that the victim suffered injuries as a result of the assault made by the accused persons. Her left hand was broken so far injuries to the victim is concerned, it is well proved by the prosecution in this case.
14. PW-5 is the Medical Officer and according to him he detected fracture on left ulna on the basis of x-ray report, on the person of the victim and he has opined that the injury was grievous and caused by blunt weapon. The ejahar as well as the evidence on record disclosed that the accused used lathi for causing the injuries. 'Lathi' is definitely a blunt weapon. It means the victim got grievous injury caused by blunt weapon.
15. By whom, the incident was caused :-
Page No.# 20/21 "As per evidence, both the accused had assaulted the victim by using lathi and as a result, the victim suffered injuries. Exhibit-1 has fully corroborated this fact.
16. Though the appellants took the plea that there was a cross case for which the injured has lodged this case. But the evidence is absolutely nil on this point. The burden lies on the defence to prove this fact, but they failed to do so.
17. The incident took place on 10/9/09 and the ejahar filed on 11/9/09. FIR shows that the FIR was lodged on 12/9/09 i.e. two days after the incident. The accused are related to the victim - as such there was possibility for her to gave second thought regarding filing of the ejahar. So this delay is not fatal to the prosecution case.
18. Considering all, the appeal is partly allowed. Both the accused are acquitted from the charge under Section 341 I.P.C. At the time of hearing on the point of sentence, both the accused had stated that they have minor children in their houses and this is the first offence. Considering all, sentence of imprisonment is reduced to six months instead of one year. The order of fine is hereby maintained. In my opinion, this sentence shall meet the ends of justice."
35. Reading of the aforesaid findings of the Appellate Court, it appears that the Appellate Court though acquitted the accused/petitioners under Section 341 of IPC, however, by affirming the conviction under Section 325 of IPC reduced the sentence of imprisonment to six months instead of one year. In view of the above, it further appears that the Appellate Court has affirmed the conviction under Section 325 of IPC on the basis of inadmissible evidence.
36. Hence, I am of the unhesitant view that the Judgment and Order of the Appellate Court is palpably and manifestly erroneous and totally perverse. That being so, the same is to be set right.
37. As such, the impugned Judgment and Order dated 30.08.2012 passed by the learned Addl. Sessions Judge (FTC), Bongaigaon in Criminal Appeal No. 25(3)/2011 is hereby set aside and quashed.
38. Accordingly, the impugned Judgment and Order dated 20.07.2011 passed by the learned Chief Judicial Magistrate, Bongaigaon in GR Case No. 491/2009 is also hereby set aside and quashed.
39. Resultantly, the criminal revision petition stands allowed and disposed of.
Page No.# 21/21
40. As such, the accused/petitioners are acquitted for the offence punishable under Section 325 of IPC. Bail bonds so furnished by the petitioners stand cancelled and surety discharged.
Return the Trial Court Records.
JUDGE Comparing Assistant