Asan Ali and Another vs State of Assam

Iqbal Ahmed Ansari, J.—This revision arises out of the judgment and order, dated 29.7.1991, passed by the learned Sessions Judge, Barpeta, in Crl. Appeal No. 14(B-4) of 1990, whereby the learned Sessions Judge, while upholding the conviction of the Petitioner No. 1, namely, Latif All under Sections 447 and 336 IPC passed by the learned Chief Judicial Magistrate, Barpeta, vide his judgment and order, dated 13.9.1990, in G.R. Case No. 1436/88, acquitted him of the offence u/s 325 IPC, but maintained, at the same time, the conviction of the petitioner No. 2, namely, Asan Ali under Sections 447, 336 and 325 IPC and, while not interfering with the sentences passed against the petitioners by the learned trial Court directing each of them to undergo Simple imprisonment for a period of 10 days for their conviction under Sections 447 and 336 IPC, reduced the sentence passed against the petitioner No. 2 to a period of 6 months for his conviction u/s 325 IPC and In default, to suffer Simple imprisonment for a further period of 15 days.

The case against the accused-petitioners, as unfolded at the trial, may, in brief, be stated as follows : Prosecution''s case commenced with the lodging of written Ejahar (Ext. 1) on 17.10.1988, At Barpeta police station, by Smt. Azufa Begum, wife of Dilwar Hussain, aligning, inter-alia, that on 17.10.1988 at about 8 P.M., when the informant and her husband were present at their house, the two accused-petitioners, who are neighbours of the informant, pelted stones on the house of the informant and when the informant and her husband scolded them, both the accused trespassed into the house of the informant, they beat the informant and assaulted her husband with a lathi causing fracture on her husband''s shoulder and that the accused left the place of occurrence only when other witnesses intervened. Injured Dilwar was medically examined on the very evening of the occurrence and the Doctor found, besides other injuries, a fracture on his right shoulder bone. Treating the Ejahar as the First Information Report, Barpeta P. S. case No. 501/88 u/s 447/336/325 IPC was registered and, upon completion of investigation, police submitted charge sheet accordingly against the petitioners.

During trial, charges under Sections 447, 336 and 125 IPC were framed against the petitioners and they pleaded not guilty thereto prosecution examined altogether 6 (six) witnesses. The accused were, then, examined u/s 313 Cr. P.C. In their examinations aforementioned, the accused denied that they had committed the offences alleged to have been committed by them. The learned Trial court found both the accused guilty of the offences aforementioned and convicted them accordingly and passed sentences against them as hereinabove mentioned. Aggrieved by their conviction and sentence, the accused petitioners preferred an appeal, which was also turned down with modification of the conviction and sentence passed against them as hereinabove indicated. The accused petitioners have, now, approached this Court against the learned appellate Court''s judgment and order aforementioned.

I have carefully perused the materials on record including the impugned judgment and order. I have heard Mr. A. S. Choudhury, learned senior counsel for the petitioners, and Mr. P. C. Gayan, learned Addl. Public Prosecutor, who has appeared on behalf of the Opposite Party.

Before entering into the merit of this revision, it is pertinent to mention that the revisional Court''s power, while dealing with a judgment and order of conviction and sentence, which stand upheld by the learned appellate Court, is very limited inasmuch as in such a revision, the revisional Court will not interfere unless the findings are perverse and/or the sentences are not commensurate with the gravity of the offences of which the accused have been found guilty of.

With the help of the learned counsel for the parties, I have scanned the evidence on record a little elaborately than what is, normally, done in a revision against conviction; but despite, such elaborate scanning of evidence, nothing of significance could be pointed out by Mr. Choudhury to show that the findings of guilt which the learned Courts below had reached, were perverse, incorrect, improper and/or illegal.

Moreover, it is worth noticing that the informant (PW 1) has clearly deposed that on the night of the occurrence, when she was present at her house with her husband, both the accused pelted stones on the house of the informant and when she (PW 1) and her husband (PW 2) objected thereto, the two accused had altercation with her husband and while accused Latif (i.e., petitioner No. 2) caught hold of her husband''s wearing apparel at his chest, accused Asan (i. e., petitioner No. 1) gave blow on right shoulder of her husband with a lathi and when she tried to intervene, accused Latif kicked on her belly, which made her fall down on the ground. It is also in her evidence that on hearing the cries, her mother and brother, who were staying as guests at the house of the informant, came out of the house and intervened, whereupon the accused left and her husband was taken to hospital, where he was found to have sustained fracture. PW 1 has further deposed that she lodged an Ejahar about the occurrence. The evidence, so given by PW 1, was corroborated in material particulars by the her husband, namely, Dilwar (PW 2) inasmuch as PW 2 too deposed to the effect that both the accused had pelted stones on the house of the PW 2 and when PW 2 scolded them, both the accused came inside his courtyard and while accused Latif had altercation with him and caught hold of his chest, accused Asan hit him (PW 2) with a lathi on his right shoulder causing fracture.

Nothing could be elicited, I notice, from the cross-examination of PWs 1 and 2 by the defence to show that what they had deposed was untrue or false. In fact, except offering suggestions to these two witnesses to the effect that the accused had not assaulted, there was really no effective cross-examination of the witnesses. This apart, the evidence given by PW 1 and PW 2 were materially corroborated by PW 3 and PW 4, who were staying as guests at the relevant time, at the house of the informant.

Coupled with the above, PW 5, who is a Doctor, confirmed that on examining Dilwar on 17.10.1988 at about 11.20 pm, (i.e., on the night of the occurrence), he found contusion on the upper part of his chest and on the lateral side of his right clevical and that the X-ray report revealed fracture of his right clevical.

The learned Trial Court believed the evidence given by the prosecution witnesses and assigned reasons therefore in its judgment and accordingly convicted both the accused u/s 447/336/ 325 IPC.

The learned appellate Court, however, as indicated hereinabove, acquitted accused Latif (i.e., petitioner No. 2) of the offence u/s 325 IPC on the ground that the clear evidence on record is that it was accused Asan, who had given blow on Dilwar causing fracture and that Section 34 IPC had not been added to enable the learned trial Court to fasten accused Latif for the said act of assault on Dilwar by accused Asan.

I see absolutely no reason to take a view of the evidence on record different from what the learned appellate Court had taken. The findings reached by the learned trial Court, except to the extent as has been pointed out by the learned appellate Court, cannot be said to be perverse.

Situated thus, I see no reason to interfere with the conviction of the accused-petitioners.

Coming to the quantum of sentence passed against the two accused-petitioners, it is important to note that this case commenced way back in October, 1998, and at the time, when petitioner No. 1 was convicted by the learned trial Court, he was 18 years of age whereas his father Asan was about 55 years old. This apart, period of almost 14 years has passed since the time they got involved in this case.

Considering the fact that the petitioner No. 1 committed the offences under Sections 447 and 336 IPC at the age of 16 years and a period of almost 14 years has elapsed since then, the sentences of simple imprisonment of 10 days for each of the offences committed under Sections 447 and 325 IPC deserve to be converted to fine only.

In view of the above, the petitioner No. 2, namely, Latif Ali, for his conviction under Sections 447 and 336 IPC, is sentenced to pay a fine of Rs. 300 on each count and in default, he shall, on each count, suffer Simple Imprisonment for a period of 7 days. As far as the petitioner No. 1, namely, Asan Ali is concerned, while upholding his conviction under Sections 447, 336 and 325 IPC, his sentence of imprisonment of 6 months, for his conviction u/s 325 IPC, is reduced to a period of 15 days of simple imprisonment and a fine of Rs. 100 and in default, he shall suffer further imprisonment for 7 (seven) days and for his conviction under Sections 447 and 336 IPC, the petitioner No. 2 too is sentenced to pay fine of Rs. 300 on each count and in default, to suffer simple imprisonment for a period of 7 (seven) days.

With modification in the sentences passed against the present petitioners, this revision is disposed of.

The accused-petitioners are hereby directed to surrender forthwith before the learned Trial Court in order to meet the sentences passed against them.

Send down the case records to the learned Court below with a copy of this judgment and order.