Ganesh Jangre, vs State Of Assam

Heard Mr. K. Sarmah, learned counsel for the appellant and Mr. P. S. Lahkar, learned Addl. P.P. for State respondent.

Perused the case records.

This long pending appeal of 2010, under Section 374(2) Cr.P.C. has been preferred against the judgment and order, dated 31.03.2010, passed by the

learned Additional Sessions Judge, FTC, Biswanath Chariali, Sonitpur, Assam in Sessions Case No. 220/2008 (arising out of GR Case No. 276/2008),

whereby the accused/appellant has been convicted and sentenced to undergo simple imprisonment for 1(one) month under Section 341 IPC and also

to suffer rigorous imprisonment for 2 ½ (two and a half) years and a fine of Rs. 5,000/-(five thousand only), in default to undergo rigorous

imprisonment for 60(sixty) days, under Section 326 IPC.

The appellant’s case precisely is that one Uma Harijan, son of Late Harilal Harijan, a resident of Chandmari Bengali Gaon, under Helem Police

Station, Sonitpur, lodged an FIR on 22.05.2008, with the Officer-in-Charge of the said Police Station alleging that on 21.05.2008, Wednesday at about

07:30 pm, while his nephew Jiten Harijan was going back home from Kauripathar Centre, after buying medicines, when he reached near the house of

the appellant, Ganesh Jangre, the accused/appellant wrongfully restrained him and assaulted him by means of a “Khukuri†(a kind of sharp cutting

weapon) causing multiple injuries on his person. As a result of assault, he sustained cut injuries on neck, head and on left hand fingers. Jiten was

shifted to Tezpur Civil Hospital for treatment.

Based on the above FIR, Helem P. S. Case No. 16/2008 under Section 341/326/307 IPC, dated 22.05.2008, was registered and the Officer-in-

Charge, ASI Kumud Ch. Shrmah himself took up the investigation in the case. In course of investigation, the I/O visited the place of occurrence,

seized the weapon of offence one “Khukuriâ€, arrested the accused, collected the injury report and on completion of investigation, submitted the

charge-sheet under Sections 341/326/307 IPC.

The offence under Section 307 IPC being exclusively triable by the Court of Sessions Judge, the learned Sub-Divisional Judicial Magistrate(M),

Biswanath Chariali, committed the case to the Court of learned Sessions Judge, Sonitpur at Tezpur. Thereafter, Sessions Case No. 220/08 was

registered. On consideration of the materials on record and hearing the learned counsel of both sides, the learned Additional Sessions Judge,

Biswanath Chariali framed the charges under Sections 341/326/307 I.P.C. The appellant pleaded innocence vide order, dated 03.01.2009. In order to

prove the charges the prosecution examined as many as 9(nine) witnesses including the doctor and the I/O. The defence cross-examined them at

length. After completion of evidence of the prosecution side, the statement of the appellant was recorded under Section 313 Cr.P.C. vide the order,

dated 19.03.2010. The appellant pleaded innocence and declined to examine any witness in defence. Then, on appreciation of the evidence adduced

by the prosecution side and hearing the learned counsel of both sides convicted the appellant under Section 341/326 IPC, and sentenced as stated

above.

Section 339 IPC defines what is ‘wrongful restraint’. If the accused voluntarily obstructs any person so as to prevent that person from

proceeding in any direction in which that person has right to proceed, he is said to have wrongfully restrained that person. To speak it differently, the

expression ‘wrongful restraint’ means keeping a person out of place, where he desires to be or wishes to move out. The person causing such

restraint or obstruction is liable to be prosecuted under Section 341 IPC. On the other hand, Section 320 IPC specifies certain categories of

‘hurt’, defined in Section 319 IPC, as grievous, when such hurt falls within one of the eight clauses designated therein. Such grievous hurt if

caused by means of any instrument for shooting, stabbing or cutting or any instrument, when used as a weapon of offence, is likely to cause death or

by means of poison or fire or heated substance or explosive substance or by means of any substance, which is deleterious to the human body to inhale,

swallow or to receive into the blood or by means of any animal.Â

In view of the above requirements of law and facts to be proved, let us look at the evidence on record:-

PW-1, Uma Harijan, is the informant in this case. According to him, on 20.05.2008 at 7/7:30 p.m., while he was in his shop, he came to know from

his family members that the appellant assaulted his nephew Jiten Harijan by means of sharp weapon. Hearing the news, he came to the place of

occurrence and saw four fingers of the left hand of Jiten were chopped out. Jiten also sustained other cut injuries on his head, neck and shoulder. He

further deposed that he shifted Jiten to Helem P.S. and from there to Biswanath Chariali Civil Hospital. Biswanath Chariali Civil Hospital referred

Jiten to Tezpur Civil Hospital. Thereafter, he lodged the FIR Ext.1, where Ext.1 (1) is his signature. He stated that police seized one ‘khukuri’

by Ext.2, the seizure memo from the house of the appellant. He recognised M. Ext.1, the said ‘khukuri’.

In cross-examination, he stated that he heard from the villagers that the appellant assaulted his nephew. According to him, at that time Jiten

Harijan was not able to speak.

Therefore, he cannot say who had assaulted Jiten.

PW-2, Bharat Harijan, in his deposition stated that on the night of the occurrence at about 7 p.m., he was cooking meal in his house. Hearing hue

and cry, he came out and came to know that his nephew Jiten Harijan was assaulted by means of ‘khukuri’ on his neck and fingers. He

recognised M. Ext.1, the said ‘khukuri’ by which the appellant assaulted his nephew.

In cross-examination, he deposed that he did not see the occurrence. He saw Jiten Harijan lying on the road, in front of the house of the appellant.

He cannot say who assaulted Jiten.

PW-3, Jiten Harijan is the injured person. His version is that on 21.05.2008 at about 7/7:30 p.m., while he was returning from Centre with his uncle

Papu by taking medicines for his father, the appellant stopped them on the road in front of his house. The appellant asked them why they were playing

the role of C.I.D. Thereafter, the appellant assaulted him by means of ‘khukuri’, on the left side of his neck. The appellant also chopped out

four fingers of his left hand. He, however, could not say why the appellant assaulted him. He further stated that the appellant suspected them to have

passed some information to the police and so assaulted him. According to him, M. Ext.1 was the said ‘khukuri’, by means of which, the

appellant assaulted him and the said ‘khukuri’ was always carried by him. He further testified that he was in Tezpur Civil Hospital undergoing

treatment for 25 days and the doctor referred him to Guwahati Medical College & Hospital (in short ‘GMCH’) for operation, but due to

financial constraint, he was not able to go to Guwahati. He further stated that he cannot do any work by his left hand. He showed the injuries to the

Court.

In cross-examination, he deposed that there was darkness at the time of the occurrence, but he could easily identify the appellant because before

the assault, the appellant had conversation with him.

PW-4, Sankar Harijan is the father of the injured, who simply stated that at the time of the occurrence, he sent his son to purchase medicines for

him. While he was returning, the appellant assaulted him on the road. According to him, his son received cut injuries on his shoulder, back and left

hand. Four fingers of the left hand of his son were chopped out.

In cross-examination, he deposed that he cannot say how the occurrence had taken place.

PW-5, Kanu Ram Satnami has deposed that he heard that there was a quarrel between the informant’s family with that of the appellant. In

the said quarrel, as he heard, both parties assaulted each other. He could not say, who assaulted whom, but police seized M. Ext.1, ‘khukuri’, by

Ext.2, the seizure memo, in his presence.

In cross-examination, he deposed that 20 to 25 days before the occurrence, the appellant informed him that the informant’s side caused

damage to his house and he requested them to settle the matter in the village ‘bichar’. But that ‘bichar’ did not take place. On the day of

the occurrence, he saw that there was damage caused to the wall and bamboo fencing of the appellant’s house, but he could not say, who caused

damage to the house of the appellant.

PW-6, Kamal Jangre deposed that at the time of the occurrence, there was hot argument between the informant’s family with that of the

appellant in front of the house of the appellant. He saw Jiten and Papu by taking ‘lathis’ in their hands standing in front of the house of the

appellant. Hearing the quarrel, he closed his shop and left the place. He came to know that Jiten and others cut the walls of the house of the appellant.

In cross-examination, he deposed that he saw Uma, Jiten and Papu armed with ‘lathis’ quarreling with the appellant in front of the house of

the appellant. Out of fear, he left the place, and therefore, he could not say, who assaulted whom. On the next day, he came to know that the walls of

the appellant’s house were damaged. According to him, he heard that Uma and others caused damage to the house of the appellant.

PW-7, Puspa Harijan is one of the vital witnesses in this case. According to him, on 21.05.08 at 7-30 p.m., he and Jiten went to the Center to

purchase medicines. While they were returning to their house, on the way, they came across the appellant, who asked them as to why they had done

the work of C.I.D.? Thereafter, the appellant assaulted Jiten by means of a ‘dao’. As a result of assault, four fingers of the left hand of Jiten

were chopped out. They shifted Jiten to the hospital.

PW-8, Dr. Pradeep Kr. Kalita examined the injured Jiten Harijan on 22.05.08 at Kanaklata Civil Hospital. On examination, he found as below:-

“(i) One cut wound cheek 7˝ x 2˝ x ½ ˝ extending to   the scalp â€" left parietal region.

(ii) Cut wounds ventral aspect of left wrist & palm size 2˝ x 1˝ x (wrist) &3˝ x 1˝ x ½ ˝, 2˝x 1˝ x ½ ˝ (palm).

(iii) Tip of left fingers chopped out.

(iv) Cut wound left side of root of neck 4˝ x 1 ½ ˝ x 1˝.â€​

According to the doctor, the injury No.3 was grievous and others were simple in nature. He further deposed that the injuries were caused by sharp

cutting weapon and the age of the injuries was recent. He referred the injured to the GMCH, Guwahati for further treatment, but he left the hospital

on 05.06.08. Ext.3 is his report and Ext.3(1) is his signature. According to the doctor, all the injuries could not have sustained by fall on a sharp

weapon. He further stated that the injured came to the hospital alone and he was not escorted by police personnel. He further deposed that No.3

injury could be caused by falling on a sharp substance. He further deposed that he cannot say whether the injured went to GMCH or not. According

to him, though the individual injuries sustained by the injured may be caused by falling on sharp substance, but all the injuries were not possible by

falling on sharp substance at a time.

PW-9, Kumud Ch. Sarmah is the I.O. in this case. According to him, on 22.05.2008, while he was working as O/C of Helem P.S., he received

FIR from Uma Harijan. Accordingly, he registered the same and took up the investigation himself. He recognised Ext.1, F.I.R. He visited the place of

occurrence, arrested the appellant, seized ‘khukuri’ by Ext.2, the seizure memo. M. Ext.1 is the said ‘khukuri’. He examined the

witnesses, collected injury report of the victim and on completion of investigation, submitted charge-sheet against the appellant.

In cross-examination, he, inter alia, deposed that he received the FIR on the following day of the occurrence at 8-30 a.m. According to him, the

injured stated before him that in the incident of assault, his four fingers of left hand fell down and regained his consciousness on the next day at about

12 p.m.

Perusal of the impugned judgment and order reveals that the learned trial court found it admitted position that P.W.3 Jiten Harijan sustained cut

injuries at the time of the occurrence and his injuries were fully supported by P.W.8, Dr. Pradeep Kumar Kalita, the doctor, who examined him, on the

following day of the occurrence, that is, on 22.05.2008, at Kanaklata Civil Hospital, Tezpur. Analysing the evidence of P.W.8, the doctor, the learned

trial court observed that as the doctor found Jiten sustaining four cut injuries including cut injuries, on his left hand four fingers, the tips of which were

chopped out, those were grievous in nature. The learned trial court further observed that the injuries sustained by Jiten were fully supported by P.W.7,

Puspa Harijan, who at the relevant time was accompanying with him to the centre to purchase medicines. The learned trial court observed that the

evidence of P.Ws3, 7 and 8 remained unshaken during the tests of their cross-examination by the defence. With regard to the identity of the appellant

as the assailant of P.W.3, Jiten Harijan, the learned court observed that as the incident of assault was preceded by conversations between them, who

were known to each other and there was inimical relation between their families. The appellant, the learned court held voluntarily inflicted the cut

injuries on the person of P.W.3 by means of a ‘khukuri’ vide M.Ext.1, which is a sharp cutting weapon. Focusing on the motive behind the

commission of the offence, the learned trial court referred to the evidence of P.W.6, Kamal Jangre and the statement of the appellant, recorded under

Section 313 Cr.P.C., wherein he stated that 15/20 days prior to the occurrence, the family of Jiten (P.W.3) caused damage to the walls and bamboo

fencing of his house, for which tension built up between their families and culminated in the appellant’s attack on him (P.W.3) in the relevant

night. According to the learned trial court, the evidence of P.Ws 3 and 7 clearly show that the appellant restrained them on the road, accusing them of

doing the work of the C.I.D. Thus, on appreciation of the unshaken testimony of the prosecution witnesses, the learned trial court arrived at the

conclusion that the appellant wrongfully restrained to and caused grievous hurt on the person of P.W.3, the injured beyond reasonable doubt and

accordingly convicted him.

The evidence of P.Ws that the occurrence took place, when the injured and others, armed with weapons caused some damage to the house of the

appellant, although no case was proved registered in this regard.

Upon hearing the learned counsel of both the sides basically two questions fall for consideration in the instant appeal, firstly, whether P.W.3

sustained cut injuries which were grievous in nature and secondly, whether the identity of the appellant as assailant of P.W.3 is established in the case.

With regard to the first disputed question, noted above, it needs to be kept in mind that Section 320 IPC specifies only certain types of hurt as

grievous. A person cannot be said to have caused grievous hurt unless the hurt caused comes within one of the clauses of the Section. For better

appreciation of the legal position, on this count, let us look at the definition of ‘grievous hurt’ given in Section 320 IPC, which is extracted herein

below:-

“320. Grievous hurtâ€"The following kinds of hurt only are designated as “grievousâ€​:â€

First.â€"Emasculation.

Secondly.â€"Permanent privation of the sight of either eye.

Thirdly.â€"Permanent privation of the hearing of either ear.

Fourthly.â€"Privation of any member or joint.

Fifthly.â€"Destruction or permanent impairing of the powers of any member or joint.

Sixthly.â€"Permanent disfiguration of the head or face.

Seventhly.â€"Fracture or dislocation of a bone or tooth.

Eighthly.â€"Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to

follow his ordinary pursuits.â€​

To sustain an offence under Section 326 IPC, that is, ‘voluntarily causing grievous hurt by dangerous weapons or means’, one has to

understand at the same time the statutory definition of ‘voluntarily causing grievous hurt’ given in Section 322 IPC, which reads:-

“322. Voluntarily causing grievous hurt.â€"Whoever voluntarily

causes hurt, if the hurt which he intends to cause or knows himself to be likely to cause is grievous hurt, and if the hurt which he causes is grievous

hurt, is said

“voluntarily to cause grievous hurtâ€​.â€​

The essential ingredient of Section 322 IPC is that the court has to see that the accused intended to cause hurt, or that he knew that grievous hurt

is likely to cause and that such grievous hurt is actually caused. Therefore, where there is neither the intention nor the knowledge, the act will not

constitute any offence under the said Section. The requirement of Explanation to Section 322 IPC is satisfied if the offender had the knowledge that

by his act he was likely to cause grievous hurt, which can be inferred, inter alia, from the part of the body chosen for inflicting violence and the

severity of the violence as shown by the injuries on the body of the victim.

In the instant case, perusal of the evidence of P.W.1, Uma Harijan (the uncle of injured), P.W.-2, Bharat Harijan (the uncle of injured), P.W.-3,

Jiten Harijan (the injured), P.W.4, Sankar Harijan (the father of injured), P.W.-7, Puspa Harijan, it appears that Jiten (P.W.3) sustained multiple cut

injuries, in different parts of the body including in his head and 4(four) fingers of left hand chopped out. P.W.8, Dr. Pradip Kumar Kalita, the doctor,

has supported the said injuries and opined that the injury No.3, that is, ‘Tip of the left finger chopped out’, was grievous in nature and all injuries

were caused by sharp cutting weapon. The doctor’s (P.W.-8) evidence shows that P.W.-3, the injured was admitted in Kanaklata Civil Hospital

on 22.05.2008 and left the hospital on 05.06.2008, that is, after undergoing treatment as indoor patient for 15(fifteen) days, although he was referred to

Guwahati Medical College and Hospital (GMCH), on 31.05.2008, for advance treatment. The evidence of P.W.3, the injured, shows that although

referred, he could not take treatment in the GMCH for financial constraint. Undoubtedly, in order to hold injuries to be grievous reliance can be placed

on the evidence of doctor, but such evidence must explain the reasons for coming to the conclusion as to how the injuries were grievous or by

appreciating the evidence of the injured that the nature of injuries, which he sustained would amount to grievous. However, neither from the evidence

of P.W.-3, the injured, it appears that the injury No.3 was a grievous one inasmuch as in the evidence of the doctor (P.W.8) it is not explained as to

how he has come to the conclusion that the injury No.3 was grievous. There is also no evidence to show that the said injury endangered the life of the

injured (P.W.3) and that the said injury caused him (P.W.3) to be during the space of twenty days in severe bodily pain or was unable to follow his

ordinary pursuits, which ought to have been proved so as to attract clause eighthly of the definition of ‘grievous hurt’ defined in Section 320

IPC, notwithstanding the medical opinion, which is not

conclusive in nature. The seized alleged weapon of offence one ‘khukuri’ vide M.Ext.1, it is noticed, was not shown to the doctor (P.W.-8) to

ascertain whether such weapon can be used to inflict the injuries P.W.3 sustained. Be that as it may, the totality of evidence, including that of the

doctor on record clearly establish that the nature of injuries, P.W.3 sustained, in fact, were simple in nature caused by sharp cutting weapon like

‘khukuri’ which is punishable under Section 324 IPC, instead of Section 326 IPC for want of satisfactory evidence to support the definition of

‘grievous hurt’ provided in Section 320 IPC beyond all reasonable doubt.

So far the second question of identity of the appellant as the assailant is concerned, it appears from the evidence of P.W.3, the injured and P.W.7,

who was present at the place of occurrence at the relevant time, that the occurrence took place, on 21.05.2008 at about 7/7:30 p.m., on road, when it

was a dark night and they were without torch light. As per their version, in the midst of an altercation between them and the appellant, who accused

them of espionaging, the appellant attacked P.W.-3 and as P.W.7 stated, when P.W.3 tried to save himself from the appellant’s khukuri blows, the

sharp-edged weapon chopped out his four fingers of the left hand. There was land dispute between the two families from before the occurrence and

that culminated in causing damage to the house of the appellant. There is no dispute that one ‘khukuri’, vide M.Ext.1, which is a sharp cutting

weapon was seized by P.W.9, the I.O., by Ext.2, the seizure memo. The appellant in his statement under Section 313 Cr.P.C. stated that the

occurrence took place in the darkness of the night and P.W.3 and his family knew him from before. Thus, the evidence of P.Ws 3 and 7 that they

could identify the assailant appellant has been reinforced by the appellant’s aforesaid statement recorded under Section 313 Cr.P.C. and

altercation that preceded the incident of assault by the appellant, who was known to them from before. Therefore, this court finds that the identity of

the appellant as the assailant of P.W.3, the injured is proved beyond all reasonable doubt.

Considered thus, this Court is of the considered opinion that the appellant voluntarily caused hurt by means of sharp cutting weapon on the person

of P.W.3 Jiten Harijan, after he was wrongfully restrained on road and accordingly, the conviction under Section 341/326 IPC is modified to Section

341/324 IPC.

Be it mentioned here that in the overall backdrop of facts, more particularly as the occurrence had taken place in the year 2008 and the long period

of litigation, this court is of the opinion that the punishment of minimum imprisonment with fine under Section 324 IPC will meet the ends of justice to

both the injured and the appellant.

In the result, the accused/ appellant is sentenced to undergo rigorous imprisonment for 1(one) year and to pay fine of Rs.10,000/-(ten thousand

only) in default to undergo rigorous imprisonment for 1(one) month under Section 324 IPC and Rs.500/- (five hundred only) in default to suffer

rigorous imprisonment for 7(seven) days only under Section 341 IPC.

The fine amount shall be deposited within 60(sixty) days from today, failing which the accused/appellant shall undergo imprisonment as directed

above.

The fine amount, if realized, shall be paid to the injured Jiten Harijan under Section 357 Cr.P.C.

With the above directions, the appeal stands partly allowed.

Send back the L.C.R. along with a copy of this judgment and order.