Judgment & Order (CAV)

1. Heard Mr. M U Mahmud, learned counsel for the appellant and Mr. M P Goswami, learned Additional Public Prosecutor, Assam for the State respondents.

2. The present appeal has been instituted by the appellant assailing the judgment and order dated 04.07.2013 passed by the Court of learned Assistant Sessions Judge, Bongaigaon, in Sessions Case No. 28(B)/2010, convicting and sentencing the appellant, herein, under Sections 394/324 IPC.

3. The prosecution case in brief is that on 23.11.2006, the informant, Subash Das lodged an FIR before the Officer-in-Charge, Bijni Police Station, alleging, inter-alia, therein that on 22.11.2006 at about 5:00 PM, the accused persons, Chandra Das (appellant, herein), Dipen Karmakar and Jitu Sutradhar had hired his Maruti car, bearing registration No. AS-15A- 1988 from Barpeta Road to proceed to Bongaigaon. On the way back at Sialmari, on NH-31, the accused persons with the intent to kill the driver, stabbed him with sharp cutting weapon and fled away with the car. It was further stated in the FIR that the accused persons were later on apprehended by Sorbhog Police Station, when the vehicle met with an accident near Rupashi High School.

Police on receipt of the said FIR, registered the same as Bijni P.S. Case No. 127/2006 under Sections 394/307 IPC.

On conclusion of the investigation, police laid a charge-sheet against the appellant, herein and two other accused, named in the FIR. The matter on being committed to the Court of learned Sessions Judge, Bongaigaon, the same was transferred to the Court of the learned Assistant Sessions Judge, Bongaigaon for trial.

The trial Court framed a charge under Sections 394/307 IPC. The charge on being read over and explained to the appellant, herein, he pleaded not guilty. At this stage, it is to be noted that the other two co-accused, being juveniles, were not proceeded against in the trial along with the appellant, herein.

During the trial, the prosecution examined 7 witnesses and thereafter, the appellant, herein, was examined under Section 313 Cr.P.C.

On conclusion of the trial, the learned Trial Court upon appreciating of the evidences coming on record, proceeded vide judgment dated 04.07.2013 to acquit the appellant, herein, from the charge framed against him under Section 307 IPC. The appellant was convicted under Sections 394/324 IPC. On his such conviction, the appellant was sentenced to undergo Rigorous Imprisonment for 3 (three) years along with payment of fine of Rs.1,000/- (Rupees One Thousand), in default, further Rigorous Imprisonment for another 1 (one) month for the offence under Section 394 IPC. The appellant was further sentenced to undergo Rigorous Imprisonment for 1 (one) year and to pay a fine of Rs.500/- (Rupees Five hundred), in default, to undergo Rigorous Imprisonment for another 1 (one) month under Section 324 IPC.

Being aggrieved, the appellant, herein, has instituted the present proceedings.

4. Mr. M U Mahmud, learned counsel for the appellant, by referring to the evidence adduced by PW3 during the trial, has submitted that the evidence, so adduced, would reveal that PW3, i.e., the driver of the vehicle had sustained stab injuries and accordingly, his clothes would be stained with blood, however, police had not forwarded the wearing apparel of the appellant for forensic examination. He further submitted that the driver had not identified the appellant to be the aggressor in the matter and accordingly, from the evidences coming on record, it was not established beyond reasonable doubt that it was the appellant, herein, who had caused the injuries on the person of the driver.

Mr. Mahmud, learned counsel for the appellant has further submitted that although there were two other accused along with the appellant, herein, in the case, the trial Court had not proceeded against the other co-accused and the trial had only proceeded against the appellant, herein.

Mr. Mahmud, learned counsel for the appellant, by referring to the evidences coming on record, has submitted that the learned Trial Court was pleased to acquit the appellant, herein, from the charge framed against him under Section 307 IPC. He submits that the evidences coming on record do not conclusively establish the fact that the stab injuries, sustained by the driver of the vehicle, were caused by the appellant, herein.

In support of his submission, Mr. Mahmud, learned counsel for the appellant has placed reliance on the decision of the Hon’ble Supreme Court in the case of Basavaraj @ Basya Vs. State of Karnataka and Others , reported in (2020) 15 SCC 310.

In the above premises, Mr. Mahmud, learned counsel for the appellant submits that this Court would be pleased to acquit the appellant from the charge under Sections 394/324 IPC.

5. Per contra, Mr. M P Goswami, learned Additional Public Prosecutor, Assam has submitted that the driver of the vehicle, Yar Ali, who had deposed during the trial as PW3, was the eye witness as well as the injured witness. He submits that the appellant was identified by PW3 in the Court during the trial. He submits that the evidence adduced by PW3 would bring to the forefront that the appellant along with the two other co-accused after stabbing him with a dagger, had fled away with the vehicle. He submits that the vehicle, after being robbed by the appellant and the other two co-accused, met with an accident and the appellant and the other two accused were arrested from the said vehicle. He submits that the vehicle, being so recovered from the possession of the appellant and the other two coaccused, in the light of the evidences adduced by PW3, the charge framed against the appellant, herein, under Sections 394/324 IPC stood establish beyond reasonable doubt and accordingly, the conviction of the appellant, herein, would not mandate any interference from this Court.

Mr. Goswami, learned Additional Public Prosecutor, Assam has further submitted that the injuries sustained by PW3, as evident from his evidence, has been corroborated by the evidence of PW2, the Medical & Health Officer, who had examined PW3. He further submits that the defence had failed to dislodge the evidence adduced by PW3 and PW2, during their cross-examination.

In the above premises, Mr. Goswami, learned Additional Public Prosecutor, Assam submits that the conviction of the appellant, herein, under Sections 394/324 IPC by the learned Trial Court would not mandate any interference by this Court.

6. I have heard the learned counsel for the parties and also perused the materials available on record.

7. The FIR lodged on 23.11.2006 would reveal that along with the appellant, there was two other co-accused. However, the trial had proceeded only against the appellant, herein. The reason for the same is that the other two co-accused were found to be juveniles and accordingly, not sent up for trial.

8. The learned Trial Court on considering the materials coming on record had framed a charge under Sections 394/307 IPC against the appellant, herein.

9. To appreciate the contentions raised by the learned counsel for the parties in the present appeal as well as the conclusions reached in the matter by the learned Trial Court, the evidences adduced during the trial would require an examination.

10. PW1 Jehirul Hoque, during the trial deposed that at the relevant point of time, he was working as a Constable in Bijni Police Station. He deposed that he along with the Officerin- Charge and other police personnel had gone to Sialmari on patrolling duty and had come across a boy, who was in an injured condition. He also deposed that they had seen a cut injury in the stomach of the boy and when the boy was asked about the incident, he had replied that he was a driver of the vehicle and some persons had hired his vehicle for proceeding to Goalpara and while coming back from Goalpara, the accused persons at Sialmari Tiniali, had inflicted injuries on his person by a dagger.

11. PW3 Yar Ali, is the driver of the vehicle. During his deposition he had identified the appellant, herein, in the dock. PW3 deposed that he was the driver of a vehicle, bearing registration No. AS-15A-1998. He further deposed that on 22.11.2006, the appellant along with two others had approached him and for hiring his vehicle to proceed to Goalpara, an amount of Rs.1,000/- was agreed to pay to him as the fare for the purpose. He also deposed that he had, thereafter, taken the three accused persons to Goalpara and while returning back to Barpeta, near Sialmari, the accused persons had asked him to stop the vehicle by projecting that they were required to answer the call of nature. He deposed that while he had stopped the vehicle, the appellant, herein, stabbed him on his neck with a dagger and the other two accused persons attacked him with a dagger in the stomach. He deposed that he had somehow escaped from the car and met some police personnel.

PW3 further deposed that the accused persons, thereafter, fled away with the vehicle. He deposed that he was taken to the police station and thereafter, sent to the hospital for treatment and he was initially treated at Bijni Hospital and thereafter, referred to Guwahati, where he had taken treatment at Polyclinic for around 10 (ten) days.

12. PW2 is Dr. Rabi Ram Owary. He had examined PW3, the driver at Bhetagaon CHC, Bijni. PW2 deposed that on examination of PW3, he had found two injuries on the stomach and over his neck. PW2 opined that the injuries were caused by sharp cutting weapons and the age of the injury was about 6 hours, prior to the time of examination.

13. PW4 is the owner of the vehicle. He deposed that PW3 was his driver and the vehicle on 22.11.2006 was taken by PW3 to a garage for some repairing works. He deposed that PW3, having not returned till late in the night, he had made a call to his driver, i.e., PW3 and then the police personnel of Bijni Police Station had informed him that his driver was found in an injured condition and the car was taken away by some culprits. He submits that he had, thereafter, proceeded to Bijni Police Station. He further deposed with regard to the treatment received by PW3.

PW4 also deposed that on the next day, he had come to learnt from the Sorbhog Police Station that the culprits, who had taken his vehicle, had met with an accident near Rupashi High School and he had proceeded to Sorbhog Police Station, wherein, he had seen the accused persons. He deposed that he, thereafter, filed an FIR with the police of Bijni Police Station.

14. PW5 and PW6 had deposed with regard to the accident met by the vehicle, which was taken away by the appellant and two other accused.

15. PW7 Sailen Deuri, the Investigating Officer deposed that on 22.11.2006, while he was posted as Officer-in-Charge at Bijni Police Station and while being on patrolling duty, he had found one person walking on the road in an injured condition. He deposed that the person, on being asked had reported that he was a driver of a Maruti car, bearing registration No. AS- 15A-1998 and while returning in his vehicle with some passengers from Goalpara, near Sialmari, the occupants of the car had attacked him with knife, causing bodily injuries and they had also fled away with the vehicle. He further deposed that the vehicle which the culprits had taken away, had met with an accident and the culprits were caught by the villagers. He deposed that the owner of the vehicle, i.e., PW4, had lodged an Ejahar at Bijni Police Station. He also deposed that the appellant, herein, along with the other co-accused were arrested by Sorbhog Police Station and he had also arrested them and forwarded them to the Court. He deposed that he had collected the photographs of the alleged vehicle from Sorbhog Police Station and had also collected the injury report of the PW3. He further deposed that on completion of the investigation, he submitted charge-sheet against the accused persons.

16. The appellant, herein, was thereafter examined under Section 313 Cr.P.C. The appellant, during his such examination only denied the circumstances existing against him coming on record from the deposition of the prosecution witnesses. He also denied to adduce any defence evidence.

17. The learned defence counsel had taken a plea before the learned Trial Court that the investigation in the matter had proceeded on the basis of a General Diary Entry and the formal Ejahar was lodged later. The defence counsel had also taken a plea that the seizure of the vehicle in question was so done by Sorbhog Police Station, however, the officer seizing the vehicle, was not examined during the trial.

18. The learned Trial Court with regard to the said contentions had drawn the following conclusions:-

                   “15. I have very carefully examined the facts and circumstance in this case. I have also given anxious thought to the submission made by the learned defence counsel. In this case, it is true that the seizure was made by Sorbhog Police Station and the Seizing Officer was not examined. However, the Investigating Officer exhibited the seizure list marked Ext. 3. That apart the photograph of the vehicle showing involvement of the vehicle in the incident has been produced. The photographs are marked as Ext. 5 and Ext. 6. So far as the question of FIR is concerned it appears that the occurrence took place on 22.11.2006 and the ejahar was lodged on 23.11.2006. The General Diary entry No. Bijni 249/2006 has been mentioned on the body of the ejahar. It may be mentioned here that in a case of accident normally police proceeded to the place as and when information was received. It appears from the evidence of the Investigating Officer that he found the injured on the road in an injured condition. Accordingly, the Investigating Officer informed the matter over telephone to the police station and brought the injured to the police station. However, the Investigating Officer stated that he registered a case on receipt of the ejahar from Subash Ch. Das, owner of the vehicle.”

19. This Court has perused the said conclusions and finds that the same does not suffer from any infirmity. At this stage, this Court would proceed to examine the further conclusions drawn by the learned Trial Court. The learned Trial Court with regard to the charge framed against the appellant, herein, under Section 307 IPC, upon examination of the evidences coming on record, had drawn the following conclusions:-

                   “17. The relevant consideration to be taken in a case U/S 307 IPC is now well settled. They are (1) the nature of weapon (2) the place where injuries were caused (3) nature of injuries caused (4) the opportunity available which the accused gets.

                   Now coming to the evidence of injury we find that as per medical report there is penetrating injury on the flank right side about 2 X 1 cm and laceration over neck.

                   However, the doctor has not opined that the injuries were sufficient to cause death or it was so dangerous to cause death of a person. Moreover, there is nothing in the report of doctor as to whether the injuries was previous and simple.

                   18. As regard circumstances, it can be gathered from the evidence that the accused did not give multiple blows with dagger or did not pierce the dagger in the neck. They were three persons and if they wanted they could easily kill the injured.

                   19.Hence, having regard to the facts and principles laid down in this regard, I find that no cause U/S 307 IPC is made out. But in my considered opinion it is a clear case of cut injury falling U/S 324 IPC.”

20. This Court has carefully perused the conclusions drawn by the learned Trial Court with regard to the charge framed against the appellant, herein, under Section 307 IPC, basing on the evidences coming on record and is of the considered opinion that the conclusions of the learned Trial Court that no case under Section 307 IPC was made out against the appellant, is not erroneous and would not call for any interference. Accordingly, the acquittal of the appellant, herein, under Section 307 IPC would not mandate any interference.

21. The above conclusions having been reached, this Court would now examine the conviction of the appellant, herein, under Section 394 IPC. The provisions of Section 394 IPC, being relevant, is extracted hereinbelow:-

                   “394. Voluntarily causing hurt in committing robbery—If any person, in committing or in attempting to commit robbery, voluntarily causes hurt, such person, and any other person jointly concerned in committing or attempting to commit such robbery, shall be punished with 1 [imprisonment for life], or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.”

22. The evidence adduced by PW3, i.e., the driver of the vehicle, during the trial brings on record that the accused persons including the appellant, herein, with the intention of fleeing away with the vehicle in question, had voluntarily caused injuries on the person of PW3 by use of a dagger. The injuries sustained by PW3 is corroborated from the evidence of PW2, i.e., the doctor, who had examined him at Bhetagaon CHC, Bijni.

23. The fact that the appellant and the other co-accused, who had fled away with the vehicle after injuring PW3, i.e., the driver of the vehicle, is clear from the deposition of the prosecution witnesses to the effect that the appellant and the other co-accused were arrested by police of Sorbhog Police Station after the vehicle had met with an accident near Rupashi High School, while the appellants were fleeing away in it and the villagers had detained them at the place, wherein, the accident had taken place.

24. The ingredients requisite for bringing home a charge against an accused under Section 394 IPC is found to be established in the present case. Accordingly, the conviction of the appellant, herein, under Section 394 IPC by the learned Trial Court would not mandate any interference.

25. The learned Trial Court after having acquitted the appellant under Section 307 IPC had found from the nature of the injuries suffered by PW3 that the same would come within the purview of Section 324 IPC. The learned Trial Court had also for the purpose drawn a conclusion to the effect that the evidence adduced by PW2 had not brought on record that the injuries sustained by PW3 was sufficient to cause his death and/or so dangerous to cause death of his person. It was appreciated by the learned Trial Court that the doctor had not opined as to whether the injuries were grievious and/or simple in nature.

26. Accordingly, this Court is of the considered view that the conviction of the appellant, herein, under Section 324 IPC, given the nature of the injuries sustained by PW3, on being attacked by the appellant, herein and the other two co-accused would not mandate any interference.

27. Having drawn the above conclusion, this Court would now examine the contentions raised by the learned counsel for the appellant that police having not forwarded the wearing apparels of the driver of the vehicle, i.e., PW3, at the time when he had purportedly sustained injuries, on being stabbed by the appellant, herein, for forensic examination, the injuries sustained by the victim, i.e., PW3 cannot be permitted to be connected to the purported assault made on him by the appellant, herein.

28. The said contention is noticed only to be rejected, inasmuch as, the seizure memo reflects that the said wearing apparels of the appellant were seized. Further, the evidence of PW1 and the Investigating Officer as PW7 clearly brings on record the fact that they had found PW3 in an injured condition, while they were on patrolling duty. The injuries sustained by PW3 stands further corroborated from the evidences adduced by PW2, i.e., the doctor, who examined PW3.

29. From the said evidences coming on record, the non-examination of the wearing apparels of the appellant, herein, by a forensic expert in the considered view of this Court would not be fatal to the case of the prosecution when the injuries sustained by the victim, i.e., PW3 stood established in the matter. Accordingly, the said contention of the learned counsel for the appellant stands rejected.

30. The learned counsel for the appellant had also submitted that from the evidences coming on record the identity of the appellant, herein, to be the aggressor in the matter cannot be said to be established beyond reasonable doubt. The said contention of the appellant is clearly without any basis, inasmuch as, the evidence adduced by PW3 brings on record beyond reasonable doubt that it was the appellant, herein, who had stabbed him with a dagger while they were returning from Goalpara. Given the nature of the offence committed in the matter, it is neigh impossible for any other witnesses to be present at the place of occurrence, when the PW3 was attacked by the appellant and the other two co-accused. This Court finds that the evidences adduced by the prosecution witnesses were not dislodged by the defence during their cross-examination and there is no material brought on record to raise a doubt with regard to the evidences brought on record by the prosecution during the trial.

31. This Court further finds that PW3 had also duly indentified the appellant, herein, in the dock. Accordingly, the said contention of the learned counsel for the appellant would also not mandate acceptance.

32. In view of the above discussion, this Court is of the considered view that the conviction of the appellant, herein, under Sections 394/324 IPC by the learned Trial Court would not mandate any interference. Accordingly, the present criminal appeal stands dismissed. The appellant is directed to surrender before the learned Trial Court within a period of 1 (one) month from today and undergo the remaining portion of his sentencing vide judgment and order dated 04.07.2013. However, there would be no order as to cost.

33. Registry to send down the Trial Court Records forthwith.