Md Jahur Ali vs State Of Assam

Heard Mr. M.H. Choudhury, learned counsel for the petitioner and Ms. S Jahan, learned Addl. PP, Assam.

This revision is directed against the judgment and order dated 06.03.2010 passed by learned Addl. Sessions Judge, Nagaon in Crl. A

No.26(N)/2007. By the said judgment, learned Addl. Sessions Judge dismissing the appeal filed by the petitioner, upheld the judgment and order dated

04.08.2007, passed by learned JMFC in GR Case No.353/2005, whereby the petitioner was convicted under Section 324 IPC and sentenced to

imprisonment for 1 (one) year and fine of Rs.1,000/- with default stipulation.

As per the prosecution case, on 13.08.2005 accused Jahur Ali and Md. Hanif assaulted Akbar on the matter of quarrel between the children and

caused serious injuries. An FIR was lodged by PW-1, wife of the injured, on the basis of which police registered a case and after usual investigation

submitted charge-sheet against both the accused persons under Sections 341/326/34 IPC and eventually both of them stood trial.

In the course of trial, charges were framed under Section 326/341/34 IPC against both the accused persons, to which they pleaded not guilty. 8

(eight) witnesses were examined by the prosecution to establish the charges. On appreciation of evidence, learned Judicial Magistrate convicted the

accused Jahur Ali under Section 324 IPC and sentenced him to imprisonment for 1 (one) year and fine of Rs.5,000/- with default stipulation. The

learned Magistrate convicted the accused Hanif under Section 323 IPC and sentenced him to imprisonment for 3 (three) months and fine of

Rs.1,000/- with default stipulation.

Aggrieved by the judgment of conviction and sentence, the petitioner Jahur Ali preferred an appeal before the learned Sessions Judge and learned

Sessions Judge by the impugned judgment upheld the conviction, however, reduced the sentence of imprisonment from 1 (one) year to 8 (eight)

months.

Aggrieved by the appellate judgment of conviction and sentence, the petitioner preferred this appeal.

I have considered the submissions made by learned counsels as well as the evidence and materials brought on record.

The submissions made by learned counsel for both the sides transpires that the prosecution case primarily hinges on the oral testimony of PW-2,

PW-3 & PW-4 and the medical evidence of PW-7. PW-3, the injured deposed that while he was sitting in front of the shop of Anowar (PW-2), the

petitioner Jahur Ali came there and complaint about his son quarrelling with the brother of Jahur Ali and he also tried to take him forcibly to his house.

On his refusal, the accused Jahur Ali hit on his head with the handle of mallet. Having been assaulted by the accused Jahur, the ‘dao’ which

was carried by PW-3 fell down. Johur picked up the dao and dealt him a blow causing injuries on his (PW-3) left arm.

Close on the heal of the evidence of PW-3, PW-2 Anowar Hussain testified that while Pw-2 was sitting in front of his shop, Jahur came there and

demanded him to go with him. On his refusal, the accused Jahur hit him on his head with the handle of the mallet. PW-4 another eye witness also

stated in the same tune supporting the evidence of PW-2 & PW-3 that accused Jahur assaulted the PW-3.

PW-7 the doctor who examined the injured found the following injuries:

2 cm × 1 cm lacerated wound out medical aspect of left wrist active bleeding/muscle deeps.

Loungitudinal lucerid wound of front of left arm muscle deep 6 cm × 2 cm â€" no tenderness

Grievous, recent, sharp cutting

A dispassionate scrutiny of the oral testimony of the vital witnesses aforementioned, transpires that oral testimony of injured PW-3, as regards

accused Jahur Ali having assaulted him with the handle of mallet and dao causing injuries were fully corroborated by PW-2 & PW-4. All these three

witnesses were subjected to lengthy cross-examination, however, nothing material, capable of creating any dent in their testimony could be elicited.

The medial evidence of PW-7 and the injury report Ex-3, also reinforced the prosecution case, as deposed by PW-2, PW-3 & PW-4.

On the basis of the above evidence, learned trial Court convicted the petitioner under Section 324 IPC and the same was affirmed by the learned

appellate court. On perusal of the evidence and materials brought on record, I find that no illegality or irregularity was committed by the Court below

in convicting the petitioner requiring inference by this revisional court. It is the settled position, that the revisional power cannot be equated with that of

an appeal. It has been held by the Apex Court consistently that unless the finding of the Court, whose decision is sought to be revised is shown to be

perverse or the decision is grossly erroneous or untenable in law or where the discretion exercised by the Court below is found to be arbitrary or

capricious, revisional Court should refrain from interfering even when two views are possible.

Be that as it may, in fact Mr. Choudhury, learned counsel for the petitioner has also not contested the prosecution case on merit, so far as the

conviction of the accused petitioner is concerned. The contention of Mr. Choudhury is that, having considered the fact, that the occurrence took place

more than a decade ago on a trivial matter and the petitioner was behind the bar for a considerable span of time, some leniency be shown to the

petitioner, by reducing the term of imprisonment to the period, the petitioner had already undergone during investigation and trial.

From the materials brought on record, it appears that the occurrence took place for a quarrel between the children and the incident took place in

the year 2005, i.e., nearly 13 years ago and a such the petitioner has already suffered a lot by facing a protracted trial for about 13 years. Naturally

the accused not being a habitual criminal is obviously well placed in the society by the passes of time. Having regard to all those factors, submission of

the learned counsel for the petitioner appears to be reasonable, inasmuch as, sending the petitioner to jail for few months, after long 13 years, that too

when the accused is not a habitual criminal is not likely to serve any cause of justice.

Learned Addl. PP has pointed out that the petitioner was in custody for more than a month during the investigation and trial. Having regard to the

nature of injury and the facts and circumstances under which the occurrence took place, I am of the view that the sentence of imprisonment which

the petitioner has already undergone would meet the ends of justice. Accordingly, the substantive sentence of imprisonment is reduced to the period

which the petitioner has already undergone. So far the question of fine is concerned, I feel no interference is required. With the above modification in

the sentence the petition is partly allowed.

The petitioner shall appear before the learned trial Court within two months from today and pay the fine of Rs.5,000/- or serve out the default

sentence. Accordingly, the revision petition is disposed of.

Send down the LCR.