Gauhati High Court
Dulal Rabha vs The State Of Assam on 1 November, 2022
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GAHC010219192012
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Rev.P./179/2012
DULAL RABHA
S/O LT. KALIPAD RABHA R/O VILL- HARIMURA, P.S. MORNOI, P.O.
HARIMURA, DIST. GOALPARA, ASSAM,
VERSUS
THE STATE OF ASSAM
Advocate for the Petitioner : MISS M BARUAH
Advocate for the Respondent : PP, ASSAM
BEFORE
HON'BLE MR JUSTICE ARUN DEV CHOUDHURY
For the appellant : Mr. H. Das.
Advocate.
For the Respondents : Mr. B. Sarma.
Addl. P.P. State of Assam.
Date of Hearing : 01.11.2022
Date of Judgement : 01.11.2022
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JUDGMENT & ORDER (ORAL)
Heard Mr. H. Das, learned counsel for the appellant. Also heard Mr. B. Sarma, learned Additional Public Prosecutor, for the State of Assam.
2. The present application under Section 401 read with Section 397 of the Code of Criminal Procedure, 1973 has filed assailing two judgments i.e. Judgment and Order dated 29.11.2011 in G.R. Case No. 1155/2008 passed by the learned Sub Divisional Judicial Magistrate (S), Goalpara convicting and sentencing the accused petitioner to undergo Simple Imprisonment of one month for the offence Under Section 341 of Indian Penal code and further to undergo Simple Imprisonment for two years and also fine of Rs. 1,000/- for the offence under Section 325 of Indian Penal Code. The 2 nd Judgment under challenge is the Judgment and Order dated 27.03.2012 in Crl. Appeal No. 40/2011 passed by the learned Session Judge, Goalpara upholding the aforesaid conviction under Section 341/325 of the Indian Penal Code.
3. The prosecution was launched on the basis of an F.I.R. filed by one Sri Hari Rabha inter alia alleging that his nephew Sri Paramananda Rabha was bitten by the accused petitioner on 27.10.2008, while his nephew was returning from the residence of Phani Bhushan Rabha.
4. On the basis of such F.I.R., the Investigating Authority registered a Case being Mornoi Police Station Case No. 75/2008 under Sections 341/325/326 of the IPC. Thereafter, the Investigating Authority conducted the investigation and filed charge-sheet being Charge Sheet No. 42/2009 under Sections 341/325/326 of the IPC and laid the same before the learned trial Court below for trial.
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5. After going the through the relevant documents and hearing both the sides and having satisfied, the Court framed charges under Section 341/325/326 of the IPC and the charges were explained to the petitioner who pleaded not guilty and accordingly, the trial proceeded.
6. To bring home charges against the petitioner, the Prosecution adduced as many as 8 (eight) witnesses including the injured, the Doctor and the I.O. of the case.
7. The petitioner was examined under Section 313 of Cr.P.C. to which, the petitioner denied the allegation in toto and thereafter, having satisfied with the materials available on record, learned trail Court below convicted and sentenced the petitioner as discussed hereinabove.
8. Being aggrieved by the aforesaid Judgment and Sentence, the present petitioner as appellant preferred an appeal being Crl. Appeal No. 40/2011 before the learned Session Judge, Goalpara and the appeal also met with the same fate as that of the trial Court. Being aggrieved by the aforesaid two Judgments and Orders, the present revision petition is filed.
9. Mr. Das, learned counsel for the appellant submits that both the judgments passed by the learned trial Court and the Appellate Court are perverse inasmuch as there was no eye witness to the occurrence. He further contends that though it was alleged that the informant was hit by a rod, however, the Investigating Authority could not find out the said rod and no recovery was made. Further contention of Mr. Das, learned counsel is that even from the evidence of Doctor, the Prosecution has failed to establish that the injured was hit by a rod, whereas the Doctor Page No.# 4/9 has deposed that the injury may be the cause of a hit by a substance like stone. Accordingly, Mr. Das, learned counsel argues that a doubt has been created whether the victim has got injured by falling down or by the weapon as has been alleged. As a doubt has been created and therefore, the petitioner was liable to be exonerated from the charges, however, the learned trial Court ignoring such materials and discrepancies has convicted the petitioner under Sections 341/325/326 of the IPC. Mr. Das, learned counsel further contends that the petitioner is a law abiding citizen and he is entitle for the benefit under Section 360(10) of the Cr.P.C. inasmuch he is having three children and his wife to look after.
10. Per contra, Mr. B. Sarma, learned Additional Public Prosecutor submits that the injured witness himself has deposed clearly depicting the role of the present petitioner in inflicting the injuries inasmuch such deposition remain intake and the defence has failed to sake such deposition by their cross-examination. Mr. Sarma, further submits that nature of injury has also been corroborated by the medical evidence and the medical report clearly shows that the injury inflicted as described by the victim himself. Therefore, in view of trustworthy evidence of injured victim, both the Courts below have rightly convicted the petitioner.
11. This Court has given anxious considerations to the submissions made by the learned counsel for the parties, perused the materials available on record including the exhibited documents.
12. Before coming to a conclusion, let this Court first summarise and analyse the evidence laid by the prosecution in the case.
Page No.# 5/9 I. PW.1 is the informant. He was not an eye witness to the incident. However, he deposed that after hearing hue and cry of his nephew, he came out from his house and saw his nephew was lying on the road in a unconscious state and with bleeding and accordingly he along with PW-2, PW-3 and PW-5 took the injured victim to Goalpapra Civil Hospital and thereafter, the victim informed that the accused had beaten him in his head and face by rod. Thereafter, the victim was referred by the Doctor of Goalpara Civil Hospital to the Gauhati Medical College and Hospital for further treatment and accordingly, the victim was taken to Guwahati.
II. PW-2, PW-3, PW-5 and PW-6 are the persons, who reached the place of occurrence at the earliest point of time. All the aforesaid four witnesses had deposed that after hearing hue and cry, they reached the place of occurrence, saw the victim lying unconscious in the road with bleeding and that they took the victim to the Goalpara Civil Hospital where the victim disclosed the name of the offender to be the present petitioner and as the condition of the victim was critical, he was referred to the Gauhati Medical College and Hospital, Guwahati.
During cross-examination, this four witnesses have remained unshaken and reiterated their deposition made during the examination-in-chief.
III. The PW-4 is the injured victim. He deposed that while returning home from the residence of one Phani Bhushan Rabha after having Page No.# 6/9 his dinner on 27.10.2008 at around at 09:00 PM in the night, he was beaten by the present accused petitioner by a rod from behind in his head and immediately he fell down on the road and the accused again beat him in his face and cheek and in result of which, his teeth were broken. Thereafter, he was taken to the Goalpara Civil Hospital where he gained consciousness and thereafter, he was referred to the Gauhati Medical College and Hospital, Guwahati.
During cross-examination that he was remain unshaken and he had denied the suggestion of the defence that there was an enmity between him and the accused and for such enmity the informant had lodged the FIR falsely.
IV. The Doctor was examined as PW-7. The Doctor in his deposition deposed that on 27.10.2009 he examined the victim in reference to the Mornoi P.S. Case No. 75/2010 and found the following injuries:-
1. Incised wound right side of chin 7X1X1 cm.
2. Incised wound left side of chin 4 X 1 X 1 cm,
3. Right lower incisor took broken,
4. Incised wound right lower lip 1 X 1 cm.
5. He further deposed that clinically at sympysis menti with bone exposed. Patient was referred to GMCH, Dept of Surgery and for further treatment. He proved the medical report and exhibited the same. Ext. 2 was his report. Ext. 2(1) his signature .
Page No.# 7/9 During cross examination he opined that injures may be caused by dashing on hard substance like stone.
V. The I.O. was examined as PW-8, who deposed that he collected the medical report and filed the charge sheet and recorded the statement of the injured victim. He deposed that the statements of other witnesses were recorded by other I.O.
During cross-examination he had reaffirmed that he had collected the medical report.
13. From the aforesaid deposition, the following facts are proved beyond reasonable doubt:-
I. That on 27.10.2008, the victim Paramananda Rabha was found lying on the street near Harimura club house with multiple.
II. Such incident was witnessed by PW-1, PW-2, PW-3, PW-5 and PW-6.
III. Thus injured victim lying on the road with multiply injuries is established.
IV.The further fact established is that these witnesses took the victim to the Goalpara Civil Hospital for treatment.
V. That the victim was brought to the Goalpara Civil Hospital on the date of occurrence was also corroborated by the evidence of Doctor i.e. PW-7, and from the evidence of PW-7, the injury as alleged in the FIR and as deposed by the injured victim are also corroborated and is clear from the medical document.
Page No.# 8/9 VI.Therefore, it is established that on 27.10.2008, the victim was found injured lying on the street in unconscious state and he was taken to the hospital and due to serious of the injury he was referred to Gauhati Medical College and Hospital for further treatment.
VII. Such fact has been proved by the prosecution beyond reasonable doubt.
14. Now therefore, the question arises who had inflicted the injury upon the accused. In this regard, there is no other eye witness, except the victim i.e. Paramananda Rabha. Paramananda Rabha in no ambiguous term has depicted the role of the accused petitioner in inflicting injury in his head and body and such evidence had remained unshaken.
15. Law is well settled that the deposition and the testimony of an injured victim must be placed in a higher pedestal as there is no reason for an injured witness to implicate an innocent person inasmuch as in the present case, the injury described and depicted by the victim has been corroborated by the medical evidence.
16. Therefore, this Court can unhesitantly conclude that it is the accused petitioner and none other who had inflicted the injury upon the petitioner. Non recovery of the weapon, in the given facts is not fatal to the prosecution story.
17. In view of the aforesaid findings, this Court is having no hesitation to hold that the learned trial Courts below had not committed any error in convicting the present petitioner. Accordingly, the present revision petition is dismissed by upholding the Judgments under challenge.
18. The petitioner/accused is hereby directed to surrender before the learned trial Court below to serve out the sentence.
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19. Send back the LCR with a copy of this Judgment and Order.
JUDGE Comparing Assistant