Gauhati High Court
Bhupen Das vs The State Of Assam on 4 June, 2012
Author: Indira Shah
Bench: Indira Shah
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM; NAGALAND; MEGHALAYA; MANIPUR;
TRIPURA; MIZORAM AND ARUNACHAL PRADESH)
CRL.APPEAL No. 31/2005
Shri Bhupen Das
.....Accused/Appellant
-Vs.-
State of Assam
............Respondent
BEFORE HON‟BLE DR.(MRS) JUSTICE INDIRA SHAH For the Appellant : Mr.N.Chowdhury, Advocate For the Respondent : Ms.B.Saikia, Addl.Public Prosecutor, Assam.
Date of Hearing &
Judgment : 4.6.2012
JUDGMENT & ORDER(ORAL)
Heard Mr.N.Chowdhury, learned counsel for the appellant and
Ms.B.Saikia, learned Addl.P.P. appearing on behalf of the State
respondent.
2. The judgment and order dated 31.12.2004 passed by learned Ad- hoc Addl. Sessions Judge, Bongaigaon in Sessions Case No. 50(A)/2003 convicting the appellant u/s 447/324/326/307 IPC and sentencing him thereby to undergo imprisonment for one year with find of Rs.1,000/-, rigorous imprisonment of two years with fine of Rs.2,000/-, R.I. for two years and three years with fine of Rs.3,000/- respectively have been challenged in this Criminal Appeal.
23. The facts in brief, as projected by the prosecution, is that on 8.7.2003 at about 6 A.M. when the victim Kalahari Barman was ploughing in his land at the back side of his house, the accused with a dao trespassed into the land and gave multiple blows causing injuries on different parts of the body of the victim. Hearing the hue and cry his son Dip kumar Barman came in his rescue who was also assaulted by the accused by means of a dao. The wife of Kalicharan lodged FIR. Dip Kumar Barman removed his father to the hospital. The police on receipt of the FIR registered a case u/s 447/324/326/307 IPC and on completion of investigation, submitted charge sheet under the aforesaid law.
4. The accused denied the charge levelled against him under Section 447/324/326/307 IPC.
5. During the trial, prosecution examined as many as 10 witnesses in support of its case. The accused in his statement recorded u/s 313 Cr.P.C denied the allegation levelled against him and pleaded that he is innocent. On conclusion of trial, the learned trial court convicted the accused and sentenced him as stated above.
6. PW 1 is the victim Kalicharan Barman. He deposed that on 8.7.2003 at about 5 AM while he was ploughing in his land, the accused assaulted him by means of dao causing injury on his back on right soldier and left hand. He raised hue and cry and hearing his alarm his son Dip Kumar Barman and wife of Kalicharan also arrived at the place of occurrence and seeing them the accused fled away. The victim was taken to Abhayapuri P.S by his son wherefrom he was sent to hospital. In his cross-examination, he stated that he purchased the land from one Parasuram and the sons of Parasuram were claiming that their father had not sold the land. PW 1 however, admitted that he had no dispute or quarrel with the accused. He further stated that the accused gave blow from his back. His son first came to the place of occurrence and took him 3 to police station by his bi-cycle. He did not state that his son was also assaulted by the accused.
7. PW 2 Srimati Annapurna Barman is the wife of PW 1. She deposed that on the date of occurrence at about 5 AM, she heard hue and cry and went to the place of occurrence. She saw the accused inflicting dao blows on the victim. Her son also came to the place of occurrence. After assaulting her husband , the accused left the place .Her son took the victim to the police station , then she lodged FIR. In her cross- examination, she stated that one Mera Das and few others came to the place of occurrence. She stated that at 4 AM it was raining and the occurrence took place at 6-30 AM. The victim was assaulted with dao which was removed from the place of occurrence by the wife of the accused. She further stated that while the victim was carried out to the police station , on the way he fell down from the bi-cycle . She admitted that their relationship with the accused prior to the occurrence was good. She also did not state that the accused inflicted any injury to her son.
8. PW 3 is Smt. Rita Roy. PW 4 Smt.Makan Das and PW 5 Smt Draupadi Das stated in their evidence that they did not see the occurrence. PW 6 Dip Kumar Barman is the son of PW 1 and PW 2. He deposed that on 8.7.2003 at about 6 PM he heard hue and cry raised by his mother and saw her proceeding towards the paddy field. He followed her and saw the accused inflicting dao blows on his father. According to him his mother tried to rescue his father. The accused attempted to assault his mother. When he intervened the accused, the accused also assaulted him by means of a dao. He sustained injury on his neck. Thereafter he brought a rickshaw and took his father to the hospital. He was also examined by the doctor in the hospital . In his cross-examination he stated that he did not hear hue and cry raised by his father as he was sleeping. His mother saw the occurrence and raised alarm, hearing which he went to the place of occurrence. He stated none others came to the place of occurrence. He further stated that as no rickshaw was available, 4 he took his father as his bicycle to the police station. He also stated that his father did not fell from the bi-cycle. Subsequently, he stated that he saw the accused inflicting dao blows on his father . Again he stated that he saw his father lying on the ground. He also admitted that he had a cordial relationship with the accused prior to the occurrence.
9. PW 7 Dimbu Banikya, is a reported witness. He did not see the occurrence. PW 8, Dr.Abani Kt.Sarma examined the victim kalicharan, on police requisition and found the following injuries:
"1. Sharp cut transversely below right tip of Scapula, size 3" x ½ " depth, bleeding present.
2. 2" x 1" size sharp cut over tip of right shoulder, bleeding present.
3. Sharp cut over left medial boarder of left hand transversely, cutting tendons and vessels to the left little finger, bleeding present.
X-Ray show transverse cut of fifth metacarpal bone. Nature of injury is grievous. Approximate age of injury within „o‟ to „2‟ hours and injuries were caused by sharp cutting weapon. "
10. PW 9 is the Investigating Officer. PW 10 Dr.Suresh Biswas examined Dip Kumar Barman and found the following injuries:
" A lacerated injury on the back of the neck and it is the level of the 7th cervical spine size of the injury 1 cm x .25 cm x .25 cm , caused bhy sharp cutting weapon. Age of the injury about 6 ½ hours. Type of the injury is simple."
11. From the above, it appears that PW 1 and PW 2 never alleged that the accused assaulted their son Dip Kumar Barman, the doctor who examined him found that the injury on the back of the neck was 6 ½ hours old whereas injuries caused to PW 1 was very recent . PW 1 stated 5 that as soon as his son and wife arrived at the place of occurrence, the accused fled away . PW 1 further stated that while he was ploughing in his land , it was still dark. PW 2 stated that after assaulting her husband, the accused left the place of occurrence. According to PW 2 some other also witnessed the occurrence. But none other then PW 1,PW 2 and PW 6 have stated that they witnessed the occurrence. PW 2 never stated that she attempted to snatch away the dao from the accused and the accused attempted to assault her, whereas PW 6 has stated so. In the examination chief, PW 6 stated that he removed his injured father to the hospital on a rickshaw but in his cross - examination he stated that he carried his father on his bi-cycle as no rickshaw was available. Once he has stated that he was sleeping at the time of occurrence and again he stated that he saw the accused inflicting dao blow on his father. It appears that the evidence of PW 1,PW2 and PW 6 are contradictory on material points.
12. The doctor who examined the victim kalicharan Barman opined that the injury No.3 sustained by the victim was grievous in nature . According to him X-Ray shows transverse cut of fifth metacarpal bone. The x-report was neither collected by the i.O. nor exhibited before the learned trial Court. The learned counsel for the appellant has submitted that the medical evidence does not show that the victim sustained grievous hurt within the meaning of Clause 7 and Clause 8 of Section 320 IPC. He also placed reliance in the case of Naib Singh Vs. State of Punjab reported in (1986) 4 SCC 401 and in the case of Hori Lal and another Vs. State of U.P. reported in 1970(1) SCC 8 wherein it was observed that it is true that fracture has not been defined in the Penal Code. The meaning of fracture would imply that there should be a break in the bone and that in the case of skull bone it is not merely sufficient that there is a crack but that the crack must extend from the outer surface of the skull to the inner surface. If the evidence is merely that a bone has been cut and there is nothing whatever to indicate the extend of the cut whether a deep one or a mere scratch on the surface of the bone , it would be difficult that the 6 injury is a grievous hurt within the meaning of Section 320 IPC. It is not necessary that a bone should be cut through or crack must extend from the outer to inner surface. There should be displacement or any fragment of the bone or there is rupture or fissure in it, it would amount to fracture within the meaning of Clause 7 of Section 320 IPC. The court is to see whether the cut in the bones noticed in the injury report are only superficial or do they effect a break in them.
13. In the medical report, the doctor did not mention the breadth in the injury No. 1 and depth of injury No.2. The doctor also admitted that those injuries may be superficial in nature. Admittedly, in this case victim had no enmity or grudge against the accused. They had a cordial relationship with the accused. The accused had no claim over the land the victim was ploughing. There was no enmity on the part of the accused to cause injury to the victim. It appears from the evidence of PW 1 and 2 that the occurrence took place early in the morning when it was still dark. PW 2 also stated that it was raining . It also transpires from the evidence that the victim had land dispute with the son of Parsuram and the accused is no way related to Parsuram . The victim might have been assaulted by somebody else and not by the accused could not be ruled out in the circumstances. More over, as stated earlier the evidence of PW 1 and PW 2 is inconsistent with the evidence of PW 6.
14. In view of the circumstances discussed above, I find that the prosecution failed to prove his case against the accused beyond all reasonable doubt and therefore the accused is entitled to get acquittal of benefit of doubt .
15. In the result , judgment and order passed by the learned court is set aside . The accused is acquitted and set at liberty forthwith. Send down the case records alongwith a copy of this judgment .
JUDGE 7 Pb/-