INDRA MOHAN BISWAS vs THE STATE OF ASSAM

1.Heard Mr. B.M. Choudhury, learned counsel for the appellant and Ms. S. Jahan, learned Addl. P.P., Assam.

This appeal is directed against the judgment and order dated 03.11.2009 passed by the learned Sessions Judge, Morigaon, in Sessions Case No.

55/2006. By the said judgment, the accused appellant was convicted under Section 307 IPC and sentenced to imprisonment for five years and fine of

Rs. 500/- with default stipulation.

As per the prosecution case, on 17.03.2005, at about 10 O’clock at night at the instigation of the accused, Padma Mohan Biswas, the accused

person namely, Indra Mohan, Rajmohan, Lalita and Sani assaulted the elder brother of the informant (PW-3) with a piece of timber and caused

serious injury. Immediately, he was shifted to hospital and PW-1, brother of the injured lodged the FIR (Ext.1). On the basis of the said FIR, police

registered a case and after usual investigation, submitted charge sheet against all the 5 persons named in the FIR and eventually all the five charge

sheeted accused including the present appellant stood trial.

Learned Sessions Judge framed charges under Section 307/34 IPC against the accused persons, to which, they pleaded not guilty. In order to prove

the charge, prosecution examined 13 witnesses including the doctor and the investigating officer and on appreciation of the evidence, learned Trial

Court convicted the present appellant under Section 307 IPC and awarded sentence as indicated above. However, learned Trial Court acquitted the

remaining accused persons, as the charge against them were held not proved.

Aggrieved by conviction and sentence, the accused/appellant, has preferred the instant appeal.

Learned counsel Mr. B.M. Choudhury, has not disputed the occurrence. The contention of the learned counsel for the appellant is that the evidence

brought on record was not sufficient to attract Section 307 IPC. It is further submitted by the Mr. Choudhury that the evidence on record, at best

could make out an offence under Section 325 IPC.

Out of the 13 witnesses examined by the prosecution, PW-5 and PW-7 were not eye witnesses as they came to the place of occurrence later on.

PW-9, PW-10, PW-11 and PW-13 were the Investigating Officer, who investigated the case at different stage of investigation and PW-12 was the

doctor, who attended the injured.

PW-3 was the injured. According to him, at about 9.30 PM, while he was talking to Indra Mohan Das and Sambhuram Das in his courtyard, the

accused Padma Mohan, Indra Mohan (appellant), Sashikanta Biswas and Rajmohan came to their courtyard armed with dao, lathi etc. and attacked

him. Indra Mohan Biswas (appellant) assaulted him with ‘battam’ (piece of timber) and consequently he fell down. In cross examination he

stated that other accused persons did not assault him. PW-1, the informant also stated that accused Indra Mohan Biswas assaulted Narayan Das,

PW-3 with a piece of timber and immediately left the place of occurrence. He further stated that, though other accused persons were there, they did

not assault the injured.

PW-2 also stated in the same tune, that while the injured was in the courtyard, the accused Rajmohan, Indra Mohan came there. According to PW-

2, there was altercation between Narayan Das (PW-3) and Sani on the matter of selling country liquor. While altercation was going on, other villagers

assembled there and at that point of time, Padmamohan came and joined in the altercation and Indramohan gave a blow on the head of Narayan with

a piece of timber and had fled away from the place of occurrence.

According to PW-4 also, Indramohan, immediately after hitting Narayan with a battam, left the place throwing the ‘battam’ at the place of

occurrence. PW-6 and PW-8 also deposed in the same tune that the accused/ appellant came to the courtyard of the injured and gave him a blow with

a piece of timber and left the place.

The doctor, who was examined as PW-12 stated to have found the following injuries on the person of PW-3. “On examination: He had

spontaneous eyeopening. He was localising painful stimulus and he was speaking inappropriate words. He had a repaired cut injury on right temporo

frontal region.

Investigations:

CT scan of Brain (Plain) 18.3.05) Lt. temporal contusion with a possible thin subdural haematoma in the Lt. temporal region along with cerebral

swelling. There is a Rt temporal bone fracture with overlying scalp swelling.

X-ray of Cervical Spin Lat. View (18.03.05) Anterior osteophyte are seen at C3, C4 and C5 vertebrae.

Disc spaces are intact.

Canal appears adequate Type of injury: Grievous.â€​

Thus, the evidence of the doctor, PW-12 reinforced the oral testimony of PW-3 supported by PW-1, PW-2, PW-4, PW-6 & PW-8 regarding PW-

3 having sustained injury on his head. From the oral testimony of all the 6 vital witnesses, it is apparent that some altercation took place between the

injured and the accused party on the question of selling country liquor by one Sani Das and in course of such altercation and quarrel, the five accused

persons named in the FIR came to the courtyard of the injured with various weapon. But evidently, none of them had assaulted the inured and only the

present appellant, who suddenly appeared there and after hitting PW-3 with a piece of timber left the place.

Evidently, the prosecution case, that the accused persons assaulted the PW-3 causing injury, is not disputed by the defence. The only point raised

is whether the evidence brought on record was adequate to attract the provision of Section 307 IPC. It is settled position that to attribute criminal

liability under Section 307, the gravity of the injury may not always be material. What is material is the requisite intention and knowledge. In order to

convict a person under Section 307 IPC, prosecution needs to establish that the accused had the requisite intention and knowledge for commission of

the offence under Section 302 IPC or in other words all the ingredients to constitute an offence under Section 302 IPC, except the factum of death

were present. In order to establish a charge under Section 307 IPC, prosecution has to prove that the accused has done the act with such intention or

knowledge and in such circumstances, that if death would have caused by such act, he would have liable for commission of offence under Section 302

IPC. Intention or menserea being a mental state, there may not be direct evidence of intention or knowledge in all cases and the same may be

required to be inferred from the facts and circumstances of the case. In the instant case, the testimony of all the eye witnesses was that consequent

upon a quarrel, 4/5 persons came to the courtyard of the victim, but they did not assault the victim. Only the accused appellant, who suddenly came

with a piece of timber and immediately after giving a blow to the victim, left the place, throwing the piece of timber at the place of the occurrence.

Had he harbored any intention to cause death of the victim, he would not have left the place immediately hitting the victim by timber. Thus, from

above facts it is difficult to comprehend that accused/appellant had any intention to cause death of the injured. At best there could be an intention to

cause injury. Since the facts and circumstances in the instant case, was such that the requisite intention for constituting an offence under Section 302

IPC could not be attributed to the accused and as such, he also could not be convicted under Section 307 IPC. However, from the nature of injury

sustained by PW-3 and the weapon used clearly established an offence to attract the provision of Section 325 IPC.

From the above facts and circumstances, this court is of the view that conviction of the accused appellant deserves to be modified from Section

307 IPC to Section 325 IPC. Accordingly, the conviction of the accused appellant under Section 307 IPC is modified converting to Section 325 IPC. It

appears from the record that the accused appellant was in jail for a period of more than one year during the time of investigation and prior to filing of

the appeal. Having considered the facts and circumstances, under which the offence was committed, I am of the view, that sentence of imprisonment

for the period which the accused appellant already undergone in custody would met the ends of justice. Accordingly, the sentence is modified and

reduced to the period, which he has already undergone in custody during investigation and trial. The fine imposed by the learned Trial Court deserves

no interference.

The appeal is partly allowed. The appellant shall surrender before the learned Trial Court to pay the fine imposed by the learned Trial Court or

serve out the default sentence. Appellant shall be released forthwith on payment of fine.

Send down the LCR.