Gauhati High Court
Uttam Gowala & Ors vs The State Of Assam on 18 July, 2017
Author: Hitesh Kumar Sarma
Bench: Hitesh Kumar Sarma
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM: NAGALAND: MIZORAM & ARUNACHAL PRADESH)
Criminal Appeal No. 47/2009
1. Sri Uttam Gowala,
S/o Late Lachman Gowala,
R/o Meherpur, Silchar,
District: Cachar, Assam.
2. Sri Jitesh Gowala,
S/o Ram Gowala,
R/o Meherpur, Silchar,
District: Cachar, Assam.
----- Appellants
- VERSUS -
State of Assam
----- Opposite Party
BEFORE
Hon'ble Mr. Justice Hitesh Kumar Sarma
Advocate for the appellants : Mr. SC Biswas.
Advocate for Opposite Party : Ms. S Jahan, Addl. PP.
Date of hearing & Judgment : 18th of July, 2017.
JUDGMENT & ORDER (ORAL)
This is an appeal under Section 374 Cr.PC against the judgment and order dated 04.02.2009, passed by the learned Sessions Judge, Cachar, in Sessions Case No. 100/2005 under Sections 448/427/323/324/307/34 IPC, convicting and sentencing the accused/appellant Uttam Gowala under Section 427 of the IPC to undergo Rigorous Imprisonment for 3 (three) months. Both the accused/appellants are convicted and sentenced under Crl. A. No. 47 of 2009 Page 1 of 7 Section 448 of the IPC to undergo Rigorous Imprisonment for 3 (three) months, under Sections 323/34 of the IPC to undergo Rigorous Imprisonment for 1 (one) year, under Sections 324/34 IPC to undergo Rigorous Imprisonment for 1 (one) year, and a fine of Rs. 2,000/-, under Sections 326/34 IPC and Rigorous Imprisonment for 3 (three) years and Rigorous Imprisonment for 4 (four) years with a fine of Rs. 5,000/- under Sections 307/34 IPC.
2. Heard Mr. SC Biswas, learned counsel for the accused/appellants. Also heard Ms. S Jahan, learned Additional Public Prosecutor, appearing for the State of Assam.
3. The prosecution case is that the accused/appellants Jitesh Gowala and Uttam Gowala alongwith two others, armed with iron rods, Bhujali etc entered into the tea stall of the informant and caused mischief to the property of the tea stall, assaulted Gopal Choudhury @ Abul Choudhury and brother of the informant Kajal Choudhury by means of sharp weapon causing grievous injuries to their persons.
4. On the above facts, Kajal Choudhury, lodged the FIR with the Police. The Police registered a case, investigated into it, collected evidence, arrested the accused/appellants, forwarded them to judicial custody, collected medical report of examination of the injured, and finally, submitted charge-sheet against the accused/appellants under Sections 448/427/323/324/326/307/34 of the IPC.
5. The learned Sessions Judge tried the case on receipt of the same on being committed by the learned Magistrate, the case being exclusively triable by the Court of Session.
6. The learned Sessions Judge framed charges against the accused/appellants under Sections 448/427/323/324/326/307/34 of the IPC. The accused/appellants pleaded innocence to the charges.
Crl. A. No. 47 of 2009 Page 2 of 77. The prosecution examined as many as 7 (seven) witnesses, who were subjected to cross-examination by the defense. The defense examined none. In their statement recorded under Section 313 Cr.PC, the accused/appellants are found to have denied the accusations levelled against them, while the incriminating evidence were brought to their notice.
8. The learned counsel for the accused/appellants, during the course of hearing, submitted that there is no ingredient of Section 307 of the IPC in the instant case. That apart, according to him, the accused/appellants were not guilty in view of the evidence on record. But the learned Trial Court convicted them and sentenced them as aforesaid.
9. Learned Additional Public Prosecutor, appearing for the State of Assam has referred to the medical examination report available in the case record, which was exhibited as Ext.2 during the trial. It is submitted that there is one injury in respect of injured Gopal Choudhury in the little finger of his right hand causing fracture. There is no other injury as per the said medical examination report, which attracts the provisions of Section 320 IPC to bring the offence under Section 326 IPC.
10. The medical examination report, i.e., Ext.2, is reproduced below for proper appreciation of the evidence relating to the injuries sustained by the injured persons.
"I examined one Gopal Choudhury, aged 36 years and found the following injuries:-
1. An excised wound over the left arm about 7 X 3 X 2 c.m. size. Weapon used-sharp, nature of injury-simple, age of injury-fresh.Crl. A. No. 47 of 2009 Page 3 of 7
2. An incised wound over the dorsum of right hand with fractured dislocation of right little finger. Weapon used-sharp, nature of injury-
grievous, age of injury-fresh.
On the same date, I examined Kajal Choudhury, aged about 50 years, and found the following injuries:-
1. Transverse bruish over the left thigh with tenderness. Type of weapon used-blunt, nature of injury-simple, age of injury-fresh.
2. Bruishes over the back of trunk with tenderness. Weapon used-blunt, nature of injury-simple, age of injury-fresh.
3. An incised wound over hte left sole measuring 3 X 1 X .5 cm, weapon used-sharp, nature of injury-simple, age of injury-fresh."
11. From the Ext.2, it appears that the injury sustained by the injured Kajal Choudhury was simple in nature which was caused by blunt weapon. In respect of the injured Gopal Choudhury, it is mentioned that the injury caused on little finger of his right hand was grievous in the sense that there was fracture and dislocation of the finger and that way this injury attracted the provisions of Section 326 of the IPC as defined in Section 320 of the IPC.
12. There is absolutely no evidence on record led by the prosecution witnesses, including the doctor, that there was injury in any vital part of the injured persons.
13. To attract the offence under Section 307 IPC, intention or knowledge on the part of the accused that the acts done by them would have caused death are necessary to be proved by the prosecution. The injuries sustained by the injured in the instant case are not found to be in the vital part of their persons, and apparently, such injuries were unlikely to cause death of the injured persons. Therefore, the provisions of Section 307 Crl. A. No. 47 of 2009 Page 4 of 7 of the IPC is not attracted in the instant case, in view of the evidence on record.
14. Although there is denial of causing injury to the injured persons by the accused/appellants, evidence of the evidence of PW1 and PW5 would reveal that the accused/appellants inflicted injuries on their persons.
15. The evidence of PW3 makes it clear that the accused/appellant Uttam Gowala trespassed into the tea stall of the informant Kajal Choudhury and there took place the incident of assault and that the accused/appellant Uttam Gowala committed mischief by breaking the glasses of the tea stall with a lathi. The very specific evidence of PW3 is that the accused/appellant Jitesh Gowala caused injury to the persons of the informant/Kajal Choudhury with a sword.
16. The evidence of PW3 received total corroboration from the evidence of PW2 so far the fact of trespassing into the tea stall by the accused/appellants and assaulting the informant/Gopal Choudhury and his brother Gitesh Choudhury is concerned.
17. The evidence of PW7 is of routine nature, who, being the Investigating Police Officer of the case, narrated about the investigation of the case from receipt of the FIR till filing of the charge-sheet of the case.
18. The position appearing from the evidence on record being as above, the learned Sessions Court recorded the order of conviction on the basis of consistent evidence of PW1, PW3, PW4 and PW5, particularly in respect of committing trespass by the accused/appellants to the tea stall of the informant/Kajal Choudhury as well as inflicting injuries upon their persons.
19. That being so, the conviction recorded by the learned Sessions Court needs no interference.
Crl. A. No. 47 of 2009 Page 5 of 720. However, the evidence on record makes it appear that the accused/appellants Jitesh Gowala inflicted the injuries causing fracture on the little finger of the right hand of Gopal Choudhury, and therefore, he is liable to be convicted under Section 326 of the IPC. So, far the offence under Sections 323/324 of the IPC is concerned, the accused/appellant Jitesh Gowala, in the considered view of the Court, the provisions of Section 326 of the IPC covers the same and so far the accused/appellant Uttam Gowala is concerned, it appears from the evidence on record that he inflicted injuries upon the informant/Kajal Choudhury with a stick and thereby the offence committed by him attracts Section 323 of the IPC.
21. After consideration of the entire evidence on record and the evaluation and appreciation of the evidence by learned Trial Court, the evidence as muscled in the judgment, it is found that none of the other provisions of the IPC under which the accused/appellants are convicted are attracted in the case except Sections 427/323 of the IPC in respect of the accused/appellant Uttam Gowala and Section 326 of the IPC against accsued/appellant Jitesh Gowala .
22. In view of the above, the sentence imposed upon the accused/appellants is modified as indicated below.
23. On conviction, the accused/appellant Uttam Gowala is sentenced to imprisonment for 2 (two) months with a fine of Rs. 500/- for commission of the offence under Section 323 of the IPC. He is sentenced to Simple Imprisonment for 3 (three) months and a fine of Rs, 500/-, in default, Simple Imprisonment for 1 (one) month for commission of the offence under Section 427 of the IPC. Both the sentences will run concurrently.
24. On conviction, the accused/appellant Jitesh Gowala is sentenced to imprisonment for 1 (one) year and 6 (six) months under Section 326 of Crl. A. No. 47 of 2009 Page 6 of 7 the IPC and a fine of Rs. 10,000/-, and in default of payment of fine, Simple Imprisonment for another 3 (three) months.
25. On realisation of the fine, the same should be given to the injured persons in equal proportion as compensation.
26. In view of the above, the present Criminal Appeal is partly allowed.
27. The accused/appellants will surrender before the Court of the learned Sessions Judge, Silchar to serve out the sentence.
JUDGE Nilakhi Crl. A. No. 47 of 2009 Page 7 of 7