Mahen Das vs State Of Assam

This appeal, under Section 374(2) of the Cr.P.C, is preferred against the judgment and order, dated 4.2.2010, passed by learned Additional Sessions

Judge (FTC), Barpeta, in Sessions Case No. 41/2006, convicting and sentencing the accused-appellants, under Section 323 of the IPC, to undergo

simple imprisonment for 1 year.

The fact of the prosecution case is that, on 22.4.2001, at about 7:45 pm, the accused-appellants, formed an unlawful assembly, armed with deadly

weapons, assaulted, Khairul Alom and Khairul Latif, causing grievous injuries to their persons. The FIR was lodged to that effect by one Khairul

Islam. Both the injured received medical treatment at Sorbhog Hospital, and later on, they were referred to Barpeta Civil Hospital, for further

treatment.

On receipt of the FIR, on the above facts, Sorbhog Police Station Case No. 83/2001, under Sections 147/325/307 of the IPC, was registered and

after completion of the investigation, a charge-sheet was laid against the accused-appellants, under Sections 147/323/325/307 of the IPC.

After exhausting all the required legal formalities and on appearance of the accused-appellants, the learned trial court, framed a formal charge

against the accused-appellants under the aforesaid provisions of law.

In this case, the prosecution examined as many as 11 (eleven) witnesses including the investigating police officer and the medical officer.

After closure of the prosecution evidence, statements of the accused-appellants were recorded under Section 313 Cr.PC and in their such

statements, they are heard denying the accusations made against them.

I have heard Mr. B.M. Choudhury as well as Mr. K.R. Patgiri, learned counsel for the accused-appellants. I have also heard learned Additional

Public Prosecutor for the state respondent, Mr. B.J. Dutta.

I have also perused the record of the learned trial court including the evidence of the witnesses.

On perusal of the judgments, it is found that after trial, the learned trial court, convicted the accused-appellants to simple imprisonment for 1 year

for commission of offence under Section 323 of the IPC although charge against the accused-appellants were framed under Sections 147/323/325/307

of the IPC.

It appears, on perusal of the judgment of the learned trial court, that the evidence on record has been thoroughly discussed and taking into account

the evidence, the accused-appellants were found guilty of offence under Section 323 of the IPC and did not find the accused-appellants guilty of the

offences, for which they were charged.

The medical reports of the injured, available in the record, produced as Ext. 4 & Ext.5, through PW10, i.e. the Medical Officer, show the injury

sustained by the injured were lacerated and abrasions. The opinion of the doctor is that the injures were fresh, caused by blunt weapon. In both the

medical reports, Ext.4 and Ext.5 respectively, injures are same in nature, i.e. the lacerated and abrasions, of course, caused by blunt weapon. On such

medical evidence, taken together with the evidence of the injured, as recorded by the learned trial court, it appears that the finding recorded by the

learned trial court, convicting the accused-appellants under Section 323 of the IPC, being based on evidence on record, requires no interference.

It has been brought to the notice of this court by the learned counsel for the accused-appellant in I.A.(Crl) 387/2010 that the accused-appellant, Sri

Jitu Nath, died during the pendency of this appeal, and to that effect, a death certificate issued by the competent authority in the Health Department

has been produced. On perusal of the said certificate, it is found that the accused-appellant, Jitu Nath, died on 26.9.2010. That being so, the appeal

stands abated against him.

So far the sentence imposed upon the accused-appellants is concerned, substantive sentence of simple imprisonment for 1 year imposed upon

them appears to be in the higher side.

This is a case of the year 2001 and the accused-appellants have been engaged in a prolonged legal battle till 2018. There is alternative punishment

prescribed for offence under Section 323 of the IPC, which may extend to 1 year or with fine of Rs. 1,000/- or with both.

Therefore, considering the background facts of the case as well as for the reasons stated above, in the considered view of this court, the

alternative punishment to pay a fine of Rs. 1,000/- each, if imposed upon the accused-appellants, will meet the ends of justice.

Accordingly, the sentence imposed upon the accused-appellants is modified and the substantive sentence of simple imprisonment for 1 year is set

aside and substituted by punishment in the form of fine of Rs. 1,000/- each, and in default of payment of payment fine, simple imprisonment for 1

month each.

Accordingly, the appeal, is partly allowed, with the modification indicated in the foregoing paragraph.

However, this modified order is applicable in respect of the accused-appellants, except accused-appellant No. 3, Jitu Nath, who is recorded to

have died in the preceding paragraph.

The accused-appellant is directed to surrender before the learned trial court within 1 (one) month to serve out the sentence.

Send down the LCR along with a copy of this judgment.