MD. RAHIM BADSA and ANR vs STATE OF ASSAM

Heard Mr. N. Uddin, learned counsel for the appellants and Ms. S. Jahan, learned Addl. P.P., Assam.

This appeal is directed against the judgment and order dated 19/9/2009 passed by learned Addl. Sessions Judge(FTC), Kamrup in Sessions Case

No. 365(K)/2008 arising out of Boko PS Case No.38/2008. By the said judgment, the appellants were convicted u/s 324 IPC and sentenced to

rigorous imprisonment for two years and fine of Rs. 5,000/- with default stipulation.

As per prosecution case, the victim (PW 1) was engaged as Supervising Officer in the Higher Secondary Final Examination in the year 2008 at

Sontoli Higher Secondary School. On 15/2/08 some candidates were expelled from the examination because of adopting unfair means. In the evening,

when the victim was returning home, some of the boys, who were expelled from the examination, restrained the victim on the way and assaulted him

with sharp weapon causing injuries. An FIR was lodged by the PW 1, on the basis of which police registered a case, being Boko PS Case No.

38/2010 and after usual investigation, charge-sheet was laid against the present appellants and eventually both of them stood trial for offence u/s

326/307 IPC.

In course of trial, charges were framed u/s 326 and 307 read with section 34 IPC against both the appellants, to which they pleaded not guilty. In

order to establish the charge, prosecution examined seven witnesses, including the doctor and investigation officer. On appreciation of evidence,

learned trial court, having found both the appellants guilty of committing offence u/s 324 IPC convicted them and accordingly awarded sentence as

indicated above.

Aggrieved by the impugned judgment, the appellants preferred the instant appeal.

Learned counsel for the appellants submits that no legal evidence was brought on record to establish the charges against the appellants, and

therefore, the impugned judgment of conviction and sentence deserves to be set aside.

PW 6, the doctor, who examined the victim found one stab injury over the left scapula 1½ inch in size, one stab injury over the lateral side of the

left scapula, one stab injury 1 inch in size on the nose and one stab injury over the left arm, which were caused by sharp weapon. This evidence of the

doctor, remained uncontroverted. Therefore, the question remains is who caused the injuries.

PW 1 the injured stated that he could not identify the person who assaulted him. According to him, some boys have attacked him. PW 4, who was

with the PW 1 at the time of occurrence also stated, that he could not identify the assailants. According to him, while he was proceeding on his

motorcycle with the PW 1 as pillion rider, through the embankment, suddenly two boys came before them riding bicycle and pulled Dayananda and

they fell down. PW 2 and PW 5 have not implicated any of the appellants. Thus, the only oral testimony, on the basis of which, the learned trial court

recorded conviction, is the testimony of PW 3, Jamal Uddin Ahmed.

According to PW 3, the appellants requested him for a lift and he took the appellants to the embankment. The accused/appellant after alighting from

the motorcycle, proceeded towards the embankment. At that time, he noticed a motorcycle coming from the opposite direction. All of a sudden, the

pillion rider of the motorcycle fell down on the ground on being pulled by the accused persons. According to him, he could not identify actually who

were the persons assaulted by the appellant as they immediately left the place with the motorcycle. In his evidence the injured (PW 1) stated that he

was obstructed by two cycle borne boys who assaulted him. Whereas from the evidence of PW 2, it appears that both the accused persons went to

the embankment on foot and he also could not identify the person, whom the appellant assaulted. That being the position, whether the PW 1 was

indeed assaulted by the accused persons remains shrouded for two reasons. Firstly there was apparent discrepancy and contradiction between the

testimony of PW 1 and PW 3, inasmuch as, according to PW 1, the boys who attacked him came on a bicycle, whereas, according to PW 3, the

accused persons were not riding the bicycle at the time of occurrence. Secondly, PW 3 could not recognize as to whom the appellant assaulted, as the

person immediately left the place.

In view of the above facts and circumstances, it is difficult to hold that the prosecution has been able to discharge its burden to prove beyond

reasonable doubt that it was the accused/appellants who assaulted the victim. Thus, apparently the prosecution evidence falls short of proving the

involvement of the accused/appellants in the instant case, and therefore, the conviction and sentence of the appellants is not sustainable. Accordingly,

the conviction and sentence of the accused are set aside and the appeal stands allowed.

The accused persons are set at liberty forthwith, if not required in any other case. Bail bond, if any stands discharged.

Send back the LCR.