DEBABRATA RAJKUMAR vs THE STATE OF ASSAM

1.Heard Mr. S. Dutta, learned counsel for the petitioner and learned Addl. P.P, Ms. S. Jahan for the respondent state.

This revision is directed against the judgment and order dated 24.09.2009 passed by the learned Sessions Judge in Crl.A. 13(4)/2008. By the said

judgment, learned Sessions Judge dismissed the appeal preferred by the present petitioner against the judgment and order dated 16.11.2005 passed in

GR No. 1004/2005, whereby the petitioner was convicted under Section 341/323 IPC and sentenced to imprisonment for one month and fine of Rs.

500/- with default stipulation under Section 341 IPC and imprisonment for one year and fine of Rs. 1000/- with default stipulation under Section 323

IPC.

As per prosecution case, on 14.02.2006 at about 9 O’clock, at night, when the informant Benu Sinhna was closing his shop, the accused

petitioner arrived there with a dao in his hand and hit him with the dao. While he tried to ward of the attack, the blow fell on his hand and he sustained

injury. The accused petitioner also inflicted injury on his leg. As he raised alarm, neighbouring people assembled and the accused left the place. An

FIR was lodged by the injured himself, on the basis of which, police registered a case and after usual investigation submitted charge sheet against the

present petitioner under Section 341/232 IPC. The petitioner was eventually tried for the offence u/s 341/323 IPC.

In course of trial, six witnesses were examined by the prosecution in order to substantiate the charges and the learned Judicial Magistrate on

appreciation of evidence, convicted the petitioner under Section 323/341 IPC and awarded sentence as indicated above.

Aggrieved by the judgment of conviction and sentence, the petitioner preferred an appeal. Learned Sessions Judge partly allowing the appeal,

reduced the sentence from one year to 6 months under Section 323 IPC

Aggrieved by the appellate judgment, the petitioner preferred the instant petition.

Apparently three witnesses of the occurrence were examined by the prosecution, besides the doctor and the investigating officer.

PW 4, the doctor, who examined the PW 1, found superficial and small lacerated injury in between the bases of left little and ring finger. The injury

in the opinion of the doctor was caused by blunt weapon. It was also stated by the doctor that the injury could also be caused by falling upon hard

substances.

PW 1, the injured/informant stated in his evidence, that while he was closing his shop, the accused came there with a dao in his hand and dealt a

blow to him. While the PW 1 tried to ward off the attack, the blow landed on his hand, and he sustained injury. Having received such injury on the

hand, he fell down and when the accused again tried to hit him with the dao, he resisted with leg and also protected himself by means of a bicycle.

During cross-examination, he admitted that the son of the accused lodged a criminal case against his nephew. He also stated in his cross examination,

that the shop of one Pradip Sinha and Manik Sinha was adjacent to his shop and that 5/6 persons including Pradip Sinha, Sambhu Sinha and Nanda

Sinha came to the place of occurrence.

PW 2, who is an employee of PW 1, stated in the same tune with the PW 1, that while they were closing the shop, the accused came with a dao in

his hand and hit the PW 1 with the said dao.

PW 3 stated that hearing hue and cry he came to the place of occurrence and noticed cut injury on the little finger of PW 1. On being asked by

the accused, PW 1 told that the injury was inflicted by the accused. During cross examination, this witness also stated that prior to the occurrence the

informant assaulted the son of the accused for which they also filed case.

A dispassionate scrutiny of the oral testimony as well as the medical evidence brought on record transpires that though, PW 1, 2 and 3 tried to

project in their evidence that the accused inflicted the injury with the dao and PW 1 sustained cut injury on his hand and leg, such evidence of PW 1

and PW 2 did not find support from the medical evidence, as deposed by PW 4, inasmuch as, according to PW 4, the PW 1 sustained only superficial

lacerated injury in between the ring and little finger.

It is no doubt true, that only because of contradiction between the medical and ocular evidence, the ocular evidence cannot be thrown away, if the

same is found to be trustworthy. In the instant case, admittedly the informant (PW 1) assaulted the son of the accused and they also lodged FIR

against the PW 1. Apparently, the shop of Pradip Sinha was adjacent to the shop of PW 1 and at the time of occurrence 5/6 persons, including Pradip

Sinha Sombhu Sinha, Nanda Sinha and others came, but none of them were examined either by police or by the prosecution during the trial.

The prosecution case is apparently based on the testimony of PW 1 and his employee PW 2. The lone independent witness PW 3, stated that he

did see the occurrence. The document annexed with the petition shows, that on the same day two cross FIRs were lodged. The defence case, that the

injured also assaulted the son of the accused and there was a cross case, finds support from the independent witness PW 3. The neighbouring people,

who were present at the place of occurrence and had the opportunity to see the occurrence were not examined. The lone eye witnesses, PW 2, was

apparently interested witness. It is no doubt true, that the evidence of a witness cannot be thrown away, simply for being interested. However,

evidence of interested witness requires to be scrutinized strictly. The Apex Court, in State of Haryana-VS- Ram Singh reported in (2002) 2 SCC 426

observed that it is not that the evidence ought to be discredited by reason of the witness being simply an interested witness, but in that event, the court

will be rather strict in its scrutiny as to acceptability of such evidence.

PW 1 has given a dramatic description of the occurrence which was supported by the PW 2. What is apparent from the testimony of the PW 2 is

that he remained silent spectator without interfering or trying to intervene when the accused was assaulting the PW 1, who was resisting the accused

in a dramatic way. The conduct of the PW 2 appears to be somewhat absurd and tend to show that either PW 2 was not present at the place of

occurrence or deposed falsely. Therefore, the dramatic narration of the occurrence by the PW 1, the conduct of the PW 2 and non-examination of

any of the independent witness, who arrived at the place of occurrence coupled with the fact that the medical evidence was contrary to the evidence

given by the PW 1 & PW 2, renders the oral testimony of the PW 1 & PW 2 unworthy of credence, not fully reliable.

In a criminal case, in order to convict a person, prosecution has to prove the guilt of the accused beyond all reasonable doubt. No one can be

convicted on mere surmise and conjecture. From the evidence adduced by the prosecution, as discussed hereinbefore, prosecution cannot be held to

have discharged its burden to prove the guilt of the accused beyond reasonable doubt and as such, at least the accused in the facts and circumstances

of the case ought to have been given the benefit of doubt.

What the totality of the evidence crystallizes is that the prosecution evidence was grossly inadequate to establish the charge beyond reasonable

doubt, and as such, the conviction and sentence of the accused is not sustainable, and deserves to be set aside. Accordingly, the revision is allowed

and the conviction and sentence of the petitioner is set aside.

Bail bond if any stands discharged.

Send back the LCR.