Judgment & Order (Cav)

1. Heard Mr. P. Bora, learned counsel for the appellants. Also heard Mr.S. Bikash, learned counsel for respondent No. 2 and Ms. S.H. Bora, learned Additional Public Prosecutor for the State.

2. This appeal is directed against the Judgment and Order dated 29.09.2018 passed by the learned Addl. Session Judge, Bilasipara in Sessions Case No. 222/2011 convicting the appellants/accused u/s 323/324/325/34 IPC and sentencing the appellants/accused persons to pay fine of Rs. 500/- each i/d 1 month simple imprisonment u/s 323 IPC and further sentenced to undergo 1 year RI and to pay a fine of Rs. 2000/- each i/d 2 months SI u/s 324 IPC and further sentenced to undergo 2 years RI and to pay a fine of Rs. 10,000/- each i/d 6 months SI u/s 325 IPC.

3. That the prosecution case in brief is that on 04.11.2008 at about 6 am informant Najrul Haque's brother-in-law Jabrul Haque went near a pond at the backside of his house to answer nature's call. At about that time, all the accused persons mentioned in the ejahar, namely, Ali Hussain, Rajiul Haque, Fakaruddin, Fatema Bibi, Monowara Bibi @ Monera Bibi and Nur Jahan armed with deadly weapons such as khukri, dao, stick etc. attacked Jabrul Haque and caused grievous injury at various parts of his body and also broke the hand and teeth of Jabrul Haque. Hearing the hue and cry, when wife and daughter of Jabrul Haque went to the place of occurrence, the accused persons named in the ejahar also attacked them and caused injuries to them. Thereafter, the injured persons were taken to the Sapatgram hospital and from there they were taken to Dhubri Civil Hospital.

4. That a formal ejahar dated 05.11.2008 was lodged by Najrul Haque which was registered and numbered as Bilasipara P.S. Case No. 288/08 u/s 147/149/326/307 of the IPC. On receipt of the said ejahar, the police swung into action and after completion of the Investigation, I.O submitted charge sheet against all the accused persons whose names have been mentioned in the ejahar u/s 147/149/323/324/325/307 of the IPC. On receipt of the charge sheet, the then learned SDJM (M) Bilasipara took cognizance and after furnishing necessary copies to the accused persons committed the case before learned Sessions Judge, Dhubri for trial and Ld. Sessions Judge, Dhubri made over the case to the Court of learned Assistant Sessions Judge, Dhubri. Then the learned Assistant Sessions Judge, Dhubri after hearing the learned counsel for both the sides and perusal of the material on record framed charges u/s 323/324/325/307/149 of IPC against all the accused persons named in the ejahar and when charges were read and explained to them, they pleaded not guilty and claimed to be tried.

5. During the trial, prosecution examined as many as 10 witnesses and after closure of prosecution evidence the statements of all the accused persons were recorded under Section 313 CrPC, wherein the accused persons denied the charges against them, but declined to adduce any evidence. Upon conclusion of the trial and after hearing, the learned Trial Court convicted the present appellants as aforesaid. Hence this appeal.

6. The evidence may be discussed first.

PW-1, Najrul Hoque is the informant of the case. His evidence is that incident took place on 04.11.2008 at about 05:00 am. Victim Jabrul Hoque is his brother in law, Ijjatan Bibi is his sister and accused persons reside in their same locality. He deposed that on the day of incident in the early morning at about 05.00 am, his brother in law Jabrul Hoque went to his pond for fishing and his brother-in-law Jabrul was accompanied by his wife and daughter. He deposed after sometimes, he heard hue and cry at the said place. He rushed to the place of occurrence and saw accused that persons were confining his brother-in-law and accused persons assaulted him on his body and head by sharp weapons and stick and as a result his brother in law received grievous injuries on his head and body and blood was oozing from the body of his brother in law. He deposed when his sister Ijjatan along with her daughter came forward to save Jabrul, accused persons also assaulted them by sharp weapons and they also sustained grievous injuries on their bodies. He deposed many people gathered at the place of occurrence and he could not resist the accused persons as accused persons possessed sharp weapons and accused persons ran away as other people gathered at the place of occurrence. Thereafter, he along with others sent the victim to the Sapatgram hospital and from there the victim was referred to Dhubri Civil Hospital and thereafter he lodged ejahar vide Ext-1 wherein he put his signature vide Ext 1(1). He further deposed he had witnessed the entire incident and the injury caused by accused persons to victim is serious in nature. In cross examination, he stated though he did not write the ejahar, the ejahar was explained to him. He stated at the time of incident, he was present at home. He along with Iman All, Abdul Matleb, Ibrahim All and Shahjamal who are neighbors of Jabrul Hoque went to the place of occurrence just after hearing the incident. He stated when he arrived at the place of occurrence, he found Jabrul Hoque lying on the ground in seriously injured condition. He stated that accused persons were present at the place of occurrence when he arrived there and he saw sharp weapons in the hand of accused persons. He stated there were several court cases between All Hussain and victim and some civil cases are also pending between Ali Hussain and victim Jabrul. He denied he did not state before police that he along with Iman All, Abdul Matleb, Ibrahim Ali and Shahjamal went to the place of occurrence just after hearing hue and cry or that he did not go to the place of occurrence or that accused persons did not assault the wife of Jabrul and his daughter; or that he did not state before police that accused persons had assaulted on the head of Jabrul.

7. PW-2, Jabrul Hoque is the one of the victims of this case. His evidence is that on the day of incident in the morning hour, accused Rajiul Hoque and Nur Hussain were illegally fishing in his pond which is situated near his house. Accordingly, he asked them not to fish in his pond but accused persons Rajiul Hoque and Nur Hussain did not listen to him and started quarrelling with him. Thereafter both the accused persons called their family members and all the accused persons came along with sharp weapons and stick and assaulted his wife, his daughter as well as him. He deposed all the accused persons possessed sharp weapons like dagger, iron rod, stick, etc. He deposed that firstly accused Ali Hussain assaulted his wife by stick and sharp weapons and thereafter, all other accused persons assaulted his wife. As a result, his wife fell down on ground and she sustained serious injury on her elbow. He deposed that the accused persons also assaulted his daughter by stick and sharp weapons on her shoulder as well as on her head and for which his daughter still could not recover from her injuries. Thereafter, accused persons hit him brutally Firstly accused Ali Hussain hit on him on his backside and as a result he fell down. Thereafter, all other accused persons had hit and assaulted on his hands, head and chest. He sustained penetrating injuries on his fore head. He further deposed that accused persons had broken his hands, legs and he sustained multiple fracture injury on his body and there was profuse bleeding from his body as well body of his wife and his daughter. He deposed that accused persons left the place after assaulting them. Many people gathered after the incident. Village people had taken them to the hospital. He deposed that he was treated at Dhubri Civil Hospital for more than 20 days and his wife and daughter were also treated at Dhubri Civil Hospital. He deposed after the incident his brother in law lodged the case before Bilasipara PS and he could not lodge the ejahar as he was admitted in the hospital. He deposed police asked him about the incident after few days of his treatment and accused Ali Hussain, Rajiul Hoque and Nur Hussain threatened him not to give evidence. In cross examination, he stated he could not recollect the day of incident but incident occurred in the early morning at about 06:00 am. He stated he lodged civil cases against the accused persons and accused persons also lodged civil cases against him and his family members. He stated that accused persons also lodged 4 criminal cases against him but he was acquitted all the said cases. He stated he regained proper sense after 3 days of incident and he met the complainant after 15 days of the incident at the hospital. He stated he could not explain the complainant about the occurrence of the incident at the hospital as he could not speak properly and his wife and daughter also could not explain about the incident to the complainant as they were also under treatment. He stated his wife and daughter went to the place of occurrence before his arrival and he cannot say who had rescued him from the incident as at that time he was at semi-conscious state. He stated the land, house and pond were belonging to him and there was no other house near the pond. He denied he was not admitted into the hospital for about one month or that he did not state before police that his teeth were broken in the incident or that he did not state before police that accused persons were illegally fishing in his pond just before occurrence of the incident or that the accused persons did not come to his premises along with sharp weapons to assault him and his wife and daughter.

8. Evidence of PW-3, Iman Ali is that he knows informant and accused persons. He deposed on the day of incident, early in the morning, he went to the paddy field. After arriving at the paddy field, he saw scuffle between accused Rajlul and victim Jabirul. Jabrul fell down and sustained injury. Thereafter, he along with Aminul brought victim to his house and then took him to the hospital. He further deposed that Jabrul sustained head injury and he saw blood oozing out from the injured portion of the victim. In cross examination, he stated when he was at paddy field he saw accused Rajiul assaulting Jabrul and victim Jabrul fell down on the ground in front of him and head of victim Jabrul fell down on hard substance resulting bad injury on his head. He stated that both the accused Rajiul and victim Jabrul were fighting and quarrelling with each other and there was land dispute between the parties.

9. PW-4, Ijjatan Bibi is another injured of the case. Her evidence is that on the day of incident while she went to the pond, she saw Ali Hussain and Rajiul Hoque assaulting her husband Jabrul Hoque. She deposed that incident occurred very early in the morning and her husband was fishing in the previous night. She deposed accused persons Ali Hussain and Rajiul Hoque restrained her husband from fishing in the pond and she saw accused Ali Hussain, Rajiul Hoque, Nur Hussain and Fakaruddin assaulting her husband by sharp edge weapons and all of them gheraoed her husband and hit on the face of her husband by sharp weapons. She deposed that they also hit on the teeth, hands and legs of her husband. She deposed that seeing her, accused Ali Hussain and Nur Hussain had also assaulted her by a bamboo stick, accused Fakaruddin assaulted her by a dao on her head and hand and she sustained deep cut injury. She deposed in the said incident her daughter was along with her and accused Ali Hussain had assaulted her daughter with sharp weapon. She deposed they started shouting and hearing their hue and cry, people came to the place and accused persons seeing people left the place of occurrence. She deposed that neighboring people took her husband to police station and then to hospital and they treated him at the Dhubri Civil Hospital. She deposed she sustained cut injury on her shoulder, her husband sustained cut injury on his body and apart from accused Ali Hussain, Rajiul Hoque, Nur Hussain and Fakaruddin, the other accused persons Fatema Bibi, Manora Bibi, Sanowara Bibi and Nur Jahan Bibi were also present at the place of occurrence and they also took part in the offence. In cross examination, she stated all the accused persons are relatives of her husband Jabrul and there was land dispute between accused persons and her husband and civil cases are also pending in respect of land dispute. She stated the pond where her husband was fishing belonged to all the family members. She stated that at the time of occurrence, Akkel All, Hyder Ali and Habejuddin were also present at the place of occurrence and hearing hue and cry Abdul Matleb, Iman All and Sofijuddin came to the place of occurrence and took her husband to the hospital. She further stated that accused persons had also lodged case against them. She denied that accused persons did not assault and hit her husband or that she did not state before police that accused Ali Hussain assaulted her husband by sharp weapon and other accused persons gheraoed him from every side.

10. Evidence of PW-5 Abdul Matleb is that an altercation took place in between accused persons and Jabrul Hoque with regard to fishing and he separated them and went with his Rickshaw and after returning home, he again heard that fresh dispute again started. In cross examination, he stated he had witnessed Iman Ali at the place of occurrence. Place of occurrence is near the pond which belonged to Jabrul and he cannot say with whom the subsequent dispute started and he witnessed accused Rajiul and Jabrul at the place of occurrence. He further stated his house is about 1 farlong distance from the place of occurrence.

11. PW-6, Sofijuddin Ali deposed he knows informant, injured and accused persons. He deposed that the incident took place about 5/6 years back in the morning hour at about 06.30 am. He heard that an altercation took place between Jabrul Hoque and accused persons with regard to fishing and Jabrul sustained injury. PW-6 was declared hostile by the prosecution. In cross examinationby prosecution he stated he was present at the place of occurrence at the time of incident. He denied that he did not state before the police that on the day of incident hue and cry took place near the pond and accused persons armed with lathi, dao etc. assaulted Jabrul and injured him and hearing hue and cry wife of injured Jabrul also come to the place of occurrence and accused persons also assaulted her and he witnessed the whole incident. In cross by defence, he stated victim Jabrul Hoque, accused persons Ali Hussain and Rajiul Hoque are own brothers and there was land dispute in between them. He further stated that he saw Iman Ali the place of occurrence.

12. PW-7, Tanjuma Begum is another injured. Her evidence is that while her father went to the pond side to sprinkle DTT powder, the accused persons assaulted her father. Hearing hue and cry when she went to the place of occurrence then accused persons also assaulted her and her mother. She deposed that the accused persons assaulted her using stick, dagger and she sustained injury on her head and hand. Hearing her hue and cry, people came and seeing this accused persons left the place of occurrence. Thereafter, they were taken to the hospital and police sent them to the Dhubri hospital and they took treatment at hospital for 15/20 days. In cross examination, she stated there are no houses standing between the place of occurrence and their house and the pond is situated on the western side of their house. She stated that the accused persons are adjacent neighbor. She stated she noticed Abdul Motleb, Ibrahim and Iman Ali at the place of occurrence and accused and her father are own brothers. She denied that the accused persons got a decree for the land of place of occurrence; that she did not made statement before police that accused Fakaruddin did not assault her; accused persons did not assault her mother and father; she did not made statement before police that on the day of incident her father went to the pond to sprinkle DTT powder. She further denied that she did not state before police that accused Ali Hussain had assaulted her father with a dagger or that her father sustained injury by falling in the pond.

13. Evidence of PW-8, Sailendra Kumar Baruah, I.O of the case is that on being endorsed by O/C Bilasipara PS, he had investigated the instant case. Prior to him, his predecessor IO Sirajul Hoque had conducted the investigation. He deposed during investigation after perusal of the C.D, he only submitted chargesheet against the accused persons u/s 149/323/324/325/307 IPC vide Ext-3 and Ext-3 is his signature. In cross, he denied he did not investigate the case properly.

14. PW-9, Dr. Kochir Ali Ahmed, M.O deposed he had examined Jabrul Hoque as indoor patient w.e.f from 04.11.2008 to 21.11.2008 following assault on 04.11.2008 and during examination of Jabrul Hoque he found- i. Lacerations over forehead (4 inch X 1 inch X 1/2 inch), lower lip (2 inch X 1 inch X 1/2 inch), left arm (1/2 inch X ¼ inch X 1/5 inch), ii. Bruise over left leg (6 inch X 2 inch) colour is bluish, iii. Abrasion over left leg (3 inch X 2 inch), iv. Sprain over left knee joint, v. Incised wound on right thumb (1 inch X 1/2 inch X 1/5 inch), vi. Fracture of mandible at four three sides(three and four) with missing teeth upper left second and six mobile teeth 5,4,3 in left upper jaw and 5,4,3 in left lower jaw and there is displacement of the lower jaw which required treatment by dental surgeon, vii. Fracture of lower third of right ulna, upper end of left fibular and lateral condyle of left humerus, viii. X rays are done and all the rays are enclosed with medical report. According to him, Injury no. i, ii, iii and iv are simple in nature and vi and vii are grievous in nature. All the injuries are fresh in onset and caused by blunt object except injury no. v which is caused by sharp edge weapon. He deposed on the same date he had also examined and treated Tanjuma Beguri and Izztiton Bibi. During examination on Tanjuma Begum he found bruise over right shoulder (3 inch X 1 inch) and right parital area of scalp (2 inch X 1 inch) colour is bluish. According to his opinion above mentioned injury is simple in nature, fresh in on set and caused by blunt object and during examination of Izzaton Bibi he found i. Incised wound over right parital area (3 inch X 1/2 Inch X1/4 inch) and right elbow (2 inch X ½ inch X 1/5 inch) with bleeding. According to his opinion, above mentioned injury is simple in nature and fresh in on set and caused by sharp edge weapon. In cross examination, he stated that in his medical report he had mentioned the date of receiving police requisition i.e. dated 25.12.2008 and Sapatgram SHC referred the injured after preliminary examination by them along with the reference document which were kept at the Dhubri Civil Hospital. He stated all the injuries of the persons examined by him are fresh on set and fresh injury means sustained by the injured within 24 hours of the examination. The injury sustained by Jabrul can hardly take place if falls on hard substance because injured Jabrul Hoque sustained multiple injuries of various nature and injury no. v sustained by the injured Jabrul cannot occur to him if hit by hammer or iron rod and injury no. vi and vii caused to Jabrul cannot caused to person by simply falling. There must be sharp force on the person. He further stated injury sustained by Izzaton Bib cannot take place by falling on hard substance. However, injury caused to Tanjuma Begum may be caused by falling on hard substance.

15. PW-10, Retired SI (UB) Sirajul Hoque is I.O of the case. His evidence is that on 05.11.2008, OC, Bilasipara Police station received the ejahar filed by one Nazrul Hoque and registered a case vide Bilasipara PS case No 288/08 u/s 147/149/326/307 of the IPC and after registration of the case, it was endorsed him to investigate the case. Accordingly, after taking of the charge, he had visited the place of occurrence, recorded the statement of the witnesses and also prepared a sketch map of the place of occurrence. He deposed that injured persons had already been sent to Sapatgram hospital for treatment by police of Sapatgram and from there he sent the injured persons to the Dhubri Civil Hospital. Thereafter he had collected the medical report of the injured persons and he also seized two Bamboo sticks from the place of occurrence as shown by informant and on being transferred, I handed over case diary to the OC, Bilasipara Police station. In cross examination, he stated that the incident took place on 04.11.2008 and he visited the place of occurrence on the next day of incident on 05.11.2008. He stated that he had not made any GD entry for sending the victims to the hospital and he did not made any requisition for sending the injured persons to Dhubri Hospital. He stated the place of occurrence is an open area and there was Railway line near the place of occurrence and there was also a small pond of Jabrul on the western side of the place of occurrence. He stated no sharp weapon was found at the place of occurrence. He stated PW-1 Nazrul did not state before him that his wife and daughter were present at the place of occurrence; he heard hue and cry at the place of occurrence and he rushed to the place. He stated PW-2 did not state before him that he was under treatment for one month; accused persons were illegally fishing his pond and when he resisted the accused persons, they assaulted him. He stated PW-4 did not state before him that Ali Hussain and Rajiul Hoque were present at the place of occurrence: Ali Hussain assaulted her husband with dagger and other accused persons gheraoed her husband. He stated PW-7 did not state before him that accused Fakaruddin assaulted them. He denied that he had not investigated the instant case properly.

16. Mr. P. Bora, learned Senior Counsel for the appellants submitted that the prosecution case is riddled by major contradictions in the evidence of the prosecution witnesses as brought out during cross examination by the defence. Further, it is submitted that the alleged injured persons were not sent to the hospital on police requisition and moreover, it has been confirmed by the I.O during his cross examination that he did not make any GD entry for sending the victim to the hospital and did not make any requisition for sending the injured persons to Dhubri Hospital.

17. It is further pointed out that no sharp weapon was found at the place of occurrence, although the allegation is that the appellants attacked the injured persons with sharp weapon. The I.O also confirmed that the PW1 did not state before him that his wife and daughter were present at the place of occurrence or that he was under treatment for 1 month. The I.O further stated that PW2 did not state that he was under treatment for 1 month and that the accused persons were illegally fishing in his pond and when he resisted, the accused persons assaulted him. The I.O also confirmed that PW-4 did not state before him that appellants Ali Hussain and Rajul Haque were present at the place of occurrence and Ali Hussain assaulted her husband with a dagger and other accused persons gheraoed her husband. Further, it was confirmed by the I.O that the PW7 did not state before him that the accused Fakaruddin assaulted them. Referring to the evidence of PW5, Abdul Matleb it is submitted that he had separated the accused and the injured when the fighting started and altercation took place but did not depose to any assault having been made by the appellants upon the injured.

18. PW6 though declared hostile through the prosecution deposed that he heard that an altercation took place between the two sides. Further, it is submitted that from the evidence of PW3, it is clear that the injury on the PW2 was caused by falling on a hard substance and not because of assault by any of the appellants. It is further submitted that long seven years have elapsed since the incident and even if the findings of the learned court below are affirmed in this appeal, the appellants may be granted the benefit of the provisions of the Probation of Offenders Act, 1958.

19. On the other hand, learned Additional PP submitted that the PW1, PW2 and PW3 have categorically implicated the appellants and moreover, the evidence of PW5 confirms the presence of the accused persons. It is submitted that the learned Trial Court has rightly convicted and sentenced the appellants.

20. Learned Counsel appearing for the respondent No.2/ informant submitted with reference to the date of occurrence that the depositions of the witnesses were recorded seven years after the incident and therefore, there is bound to be some amount of discrepancy as nobody can be expected to remember every detail of the incident in its proper order after such a long period.

21. It is also submitted that the evidence of the injured witnesses have been confirmed by the medical evidence and the evidence of the PWs have been more or less consistent at every stage and corroborate each other.

22. A perusal of the evidence of PW1 and PW2 would indicate some discrepancy in the order in which the injured persons proceeded to the place of occurrence. PW1 deposed that his brother-in-law Jabrul Hoque went to his pond for fishing early in the morning and was accompanied by his wife and daughter. PW1 stated that he saw the accused persons had confined his brother-in-law and assaulted him on his body and head by sharp weapons and stick and when the wife of his brother-in-law, who is the sister of PW1 came forward along with his daughter to save his brother-in-law, the accused persons assaulted them as well.

23. On the other hand, PW2 i.e. Jabrul Hoque deposed that his wife was first assaulted by Ali Hussain by a stick and also by sharp weapons and thereafter all the other accused persons assaulted his wife, who fell down on the ground and sustained serious injuries and they also assaulted his daughter by stick and sharp weapons and thereafter, the accused persons assaulted PW2. PW3 deposed that on arriving at the paddy field he saw the scuffle between the accused and the victim and during cross, he stated that he saw accused Rajiul assaulting Jabrul who fell down on the ground in front of him. He did not depose regarding assault upon the wife and daughter of the main injured i.e PW2. According to PW4 who is the wife of the PW2 she saw the accused persons assaulting her husband by sharp edge weapons and upon seeing her, they also assaulted her. Her daughter was also assaulted by accused Ali Hussain. Therefore, according to the versions of PW1 and PW4, it was the PW2 who was first assaulted and thereafter, when his wife and daughter intervened they were also assaulted.

24. Although there is a difference in the versions of the PW2 and the other two aforesaid witnesses i.e PW1 and PW4 as regards the sequence of events, the same cannot be regarded to be of much significance in as muchas the medical evidence discussed above fully corroborates the versions regarding assault by the appellants upon the PW1 and his wife and daughter. Therefore whatever be the sequence, the offense is complete and having regard to the long period in between the occurrence and the date of deposition, as rightly contended by learned counsel appearing for the informant, some discrepancy can be expected and too much stress need not be laid on them that as regards the evidence of PW5, it appears that he did not see the actual incident but he did identify the presence of some of the appellants at the place of occurrence.

25. Coming to the evidence of the PWs, it is the version of PW1 that he saw the accused/appellants confining his brother-in-law and assaulting him on his body and head by sharp weapons and stick resulting in grievous injuries on his head and body causing profuse bleeding. He also deposed as to how the wife and daughter of the deceased were also assaulted and despite lengthy cross-examination of PW1 as well as from the cross-examination of the other PWs, defense could not succeed in ruling out the presence of PW1 at the place of occurrence. Therefore, his version has duly corroborated the version of the main injured person i.e. PW2 who deposed that after the initial quarrel the accused persons came along with sharp weapons and stick and assaulted his wife, daughter as well as himself. He also described the injuries sustained by his wife and daughter.

26. He deposed that accused Ali Hussain first hit him on the backside of the waist and he fell down on the ground and thereafter, all the other accused persons hit him on his hands, head and chest and his hands as well as his legs were broken as a result of such assault.

His cross-examination did not result in shaking his version other than bringing up certain omissions as already indicated above, but in view of the injuries inflicted upon the PW2 as fully confirmed by the medical evidence, such omission is also not of much significance and certainly does not amount to any material contradiction. As already discussed above, the evidence of the main injured is also corroborated by the other injured person i.e. PW4 wife of the PW2 who corroborated the PW2 in material particulars. Although it is an admitted fact that there were disputes between the parties resulting in civil as well as criminal cases, the possibility of false implication can be safely ruled out in view of the extensive medical evidence as deposed to by the PW9/M.O.

In his cross-examination, he has categorically ruled out that the injuries may be caused by falling on a hard substance in view of the multiple injuries of various nature suffered by the PW2. With regard to the PW4, the M.O deposed that injuries sustained by her cannot take place by falling on a hard substance. It is only in respect of the daughter of PW2 and PW4 that the MO stated that the same may be caused by falling on hard substance.

27. From the above versions of the PWs, more particularly, the injuries sustained, there can be no doubt that the injuries upon the injured persons were caused by the appellants who had been specifically implicated by more than one witness in their evidence. It is trite law that the evidence of the injured witness stands on a higher pedestral and unless any motive for false implication can be squarely established, the same has to be accepted.

28. In the present case, it is seen that although there were 4 criminal cases against the PW2, admittedly he has been acquitted in all of them which in fact provides a motive to the appellants to cause harm to the PW2 although the immediate provocation appears to be with regard the objection raised by the informant side to the fishing done by the appellants upon the pond belonging to the PW2.

29. Although the I.O has deposed that he did not make any GD entry for requisition for sending the injured persons to hospital, it has been stated by the M.O that although the PW2 self appeared for treatment, he was later on identified by the ASI, Sirajul Hoque of Bilasipara PS and requisition was also submitted mentioning the case number as Bilasipara PS Case No. 288/08 and that it was a referred case from Sapatgram. Further, in his cross examination also, the M.O deposed that Sapatgram referred the injured after preliminary examination and also made reference to the document which were kept at Dhubri, Civil Hospital.

30. From the above, I do not find any reason to doubt the identity of the persons who were examined by the M.O.

31. With regard to the delay in lodging the FIR i.e. on the next date of the occurrence, from the evidence of the PWs regarding the injuries suffered by the PW2 including fracture of his hand and leg as well as head injury, the same delay is explained and it has been rightly held by the learned Trial Court that on top of the exhibit-1/ejahar, it is seen that the ejahar is dated 04.11.2008 i.e. the date of the incident and the evidence of the I.O., Medical report of the injured persons shows that the injured persons were taken to Sapatgram Hospital and Dhubri Civil Hospital by the police and it clearly appeared therefrom that the informant lodged the ejahar on the date of the incident but it was the then O.C, Bilasipara PS who had registered the case on 05.11.2008, and therefore the fault of the O.C in delaying the registration of the case would not shift the fault to the informant and, even otherwise, it appears from the evidence of PW1, PW2, PW4, PW7 and PW9 that the injured persons were taken to hospital for providing treatment and police also accompanied them and appeared subsequently on the same date and identified them and therefore, even if any delay is present in lodging the FIR the same is properly explained and taking of treatment by the injured persons at the hospital is sufficient cause for any delay in lodging the FIR when the informant himself was present with the injured persons at the hospital.

32. Evidence of PW-2 injured shows that he was attacked by stick and sharp weapons. He was hit first by accused Ali Hussain on his back side and when he fell down on the ground, other accused hit and assaulted him on his hand, back and chest. He stated he sustained grievous injury on his forehead and accused persons had broken his hand. PW-4, who rushed to the place of occurrence immediately after hearing hue and cry found that accused Ali Hussain, Rajiul Hoque, Nur Hussain and Fakaruddin assaulted her husband with sharp weapon by gheraoing him. They hit on her husband's head and face and as a result, the teeth of her husband were uprooted. Due to assault on her husband's head and hand, hand of her husband was fractured. The injury caused to PW-2 injury no. i, ii, iii, iv are simple in nature and injury no. vi and vii are grievous in nature and injury no. v is caused by sharp weapon. The medical evidence shows that PW-2 sustained injury on his forehead and incised wound on his right thumb which is caused by sharp edge weapon. Fracture of lower third of right ulna, upper end of left fibular and uprooting of teeth are grievous injury. Thus, it is shown that injury stated to be sustained by PW-2 is fully corroborated by medical evidence. Statement of PW-5 hostile witness and PW-6 also pointed to taking place of the incident on the day of incident in the morning hour. Evidence of PW-5 and PW-3 pointed to assault on Jabrul by accused persons Ali Hussain and Rajiul. PW-4 stated accused Fakaruddin also assaulted PW-2.

33. In view of what has been discussed above, I am of the considered view that the learned Trial Court upon proper appreciation of the evidence has come to a finding of guilt in respect of the present appellants under the appropriate provisions and therefore, I find no scope for interference with the conviction of the appellants. Further, with regard to the prayer for applying the provisions of Probation of Offenders Act, given the nature of the offences, I find that the learned Trial Court rightly refrained from applying the same.

34. With regard to the quantum of sentence, having regard to the fact that the appellants caused grievous injuries upon the PW2 and did not spare the wife and daughter of the PW2, the sentence of 2 years RI imposed by the learned Trial Court is found to be just and reasonable.

35. In view of the aforesaid discussion, the Judgment and Order of the learned Trial Court stand affirmed. The Appeal stands dismissed.

36. Send back the TCR.