Md. Abdul Aziz vs State Of Assam

This criminal appeal has been preferred by the appellant against the judgment and order of conviction and sentence, dated 16-10-2012, passed by

the learned Additional Sessions Judge, Nagaon, Assam, in Sessions Case No. 269 (N) of 2005, under Sections 447/323/354/ 314/114/34 of the IPC, to

suffer simple imprisonment for a month each and to pay a compensation of Rs. 5,000/- each, in default, to suffer simple imprisonment for further

period of 15 (fifteen) days. The period already undergone in custody was directed to be set off. On realization of the compensation amount, the same

was directed to be paid to the victim, in terms of the provisions of Section 357(3) Cr.P.C.

I have heard Mr. A Ahmed, learned counsel appearing on behalf of accused-appellant, and Mr. TK Mishra, learned Additional Public Prosecutor,

Assam.

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

The prosecution case, as unfolded from the evidence on record, including the FIR, is that on 05-05-2004 at about 7.00 a.m., an Ejahar was lodged

by the informant, Khairul Islam, with regard to the fact that the accused-appellants, in order to take revenge for giving evidence in CR Case No.

57/2004, abused the victim with obscene language. The accused No. 2, Md. Abdul Khaleque, on direction of accused No. 1, Md. Abdul Aziz, grabbed

her and the accused No. 3, Md. Malek, kicked her on the abdomen leaving her unconscious.

On receipt of the FIR, about the above occurrence, Batadrava Police Station registered a case, being Batadrava Police Station Case No. 08/2005,

under Sections 341/354/316/325/114/34 of the IPC.

The police visited the place of occurrence, investigated into the matter, and finally, on completion of the investigation, submitted charge-sheet

against the accused-appellants, under Sections 341/354/316/325/ 114/34 of the IPC.

After exhausting all required formalities, on appearance of the accused-appellants before the trial Court of learned Additional Sessions Judge,

Nagaon, they were furnished copies as required under Section 207 of the Cr.P.C. and after hearing them though their learned State defence counsel,

framed a formal charge against him under Section 447/323/354/314/114/34 of the IPC. The accused-appellants pleaded not guilty while the charges

were explained to them and claimed to be tried.

In this case, to bring home the guilt of the accused-appellants, the prosecution examined as many as 3 witnesses, who were, except PW3, subjected

to cross-examination by the defence.

After closure of the prosecution evidence, statements of the accused-appellants were recorded by the learned trial Court, under Section 313 of the

Cr.P.C. The accused-appellants, in their such statement, denied the accusation levelled against them and also declined to adduce defence evidence.

After conclusion of the trial the learned trial Court convicted and sentenced the accused-appellant as aforesaid.

I have meticulously examined the judgment appealed against as well as the evidence of the 3 witnesses as available on record of the learned trial

Court.

PW1 is the informant of the case and he deposed in his evidence that the accuse-appellants are his elder brothers with whom he had land dispute

and there is Title Suit pending between them, in which his wife had given evidence. At the time of the incident, he was at work and on his return, he

found his wife on the bed and he was told by his wife that the accused-persons had beaten her. PW1 also deposed that his wife was carrying 4

months’ pregnancy and he had seen the injury on the abdomen of his wife and he took his wife to treatment and later she miscarried.

The victim, Rousanara Khatun, examined as PW2, has deposed that the accused persons are the elder brothers of her husband. There was land

dispute amongst them. She had gone to give evidence in a criminal case. On the date of the incident, at about 8.00 a.m., the accused-appellants Aziz,

Malek and Abdul Khaleque came and accused, Abdul Khaleque pulled her by her hair and on the instigation of Abdul Aziz, accused-appellants, Malek

and Abdul Khaleque kicked her causing injury on her lower abdomen and there was bleeding. She became unconscious. PW2 also deposed that she

was pregnant of 4 months and as a result of the injury she miscarried. In her cross-examination, she stated that abortion was done in Dhing Civil

Hospital.

PW3, Hajera Khatun is the neighbour of the informant. In her evidence she has deposed in the same line as deposed by PW2/victim.

It appears from such evidence of the witnesses that for whatever reasons it may be, the PW2/victim was assaulted by the accused-appellants

causing injuries to her person. The learned trial Court did not find evidence to come to a definite conclusion that the miscarriage/abortion of the

PW2/victim happened due to the assault, in the absence of the evidence of the doctor, who had done the abortion/effected the miscarriage.

Accordingly, the learned trial Court found the accused-appellants guilty under Section 323/34 of the IPC and convicted and sentenced them as

indicated above.

In view of the above, it is found that the judgment of the learned trial Court, convicting the accused-appellant, is based on credible evidence on

record, which the learned trial Court discussed leaving no scope for interference by this Court, in appeal.

So far the sentence is concerned, the accused-appellants are convicted and sentenced to suffer simple imprisonment for a month each and to pay

a compensation of Rs. 5,000/-each, in default, to suffer simple imprisonment for further period of 15 (fifteen) days. Considering the background facts

of enmity between the parties as well as nature of offences alleged including the injuries, this Court is of the view that the sentence imposed upon the

accused-appellants are concerned, who are aged ranging from 55 to 70 years, the substantive sentence of simple imprisonment for one month appears

to be in the higher side, and if a fine of Rs.1,000/- is imposed upon the accused-appellants for the offence under Section 323/34 of the IPC, the same

will meet the ends of justice, apart from the compensation awarded by the learned trail Court. Therefore, the substantive sentence imposed upon the

accused-appellants is set aside and the sentence of fine of Rs.1000/-, in default of payment of fine, simple imprisonment for 15 days each, is imposed.

The order in respect of payment of compensation of Rs.5000/- each to be paid to the victim is retained.

Accordingly, the appeal is partly allowed with the modification of the sentence as indicated above.

The accused-appellants shall surrender before the learned trial Court within one month from today to serve out the sentence.

Send down the LCR with a copy of this judgment.