Ujur Ali vs The State Of Assam And Anr
2021 Latest Caselaw 278 Gua

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GAHC010205022018




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                Case No. : Crl.A./305/2018

            UJUR ALI
            S/O TOWAJ UDDIN, VILL. BASHANI GAON, P.O. LAKHIGANJ, P.S.
            BILASIPARA, DIST. DHUBRI, ASSAM, PIN 783348

            VERSUS

            THE STATE OF ASSAM AND ANR
            REPRESENTED BY PP, ASSAM.

            2:MD. JOYNAL ABEDIN
             S/O MD. JALAL UDDIN
            VILL. BASHANI GAON
             P.O. LAKHIGANJ
             P.S. BILASIPARA
             DIST. DHUBRI
            ASSAM
             PIN 78334

Advocate for the Petitioner   : MR. M U MONDAL

Advocate for the Respondent : PP, ASSAM

BEFORE HONOURABLE MR. JUSTICE MIR ALFAZ ALI

JUDGMENT & ORDER (CAV) Date : 29-01-2021

Learned Senior Counsel, Mr. HRA Choudhury assisted by Mr. Azad Ahmed for the appellant and learned Addl. Public Prosecutor, Mr. BB Gogoi for the State were heard.

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2. This appeal is directed against the judgment and order dated 13-08-2018 passed by the learned Additional Sessions Judge, Bilasipara, in Sessions Case No. 105/2011, whereby, the appellant was convicted u/s 326/307 IPC and sentenced to imprisonment for 10 (ten) years on each count with fine of Rs. 10,000/- with default stipulation.

3. The prosecution case, as unfolded during trial, was that on 13-09-2005 at about 10 O' Clock in the morning, when father of the informant, Jallal Uddin Ahmed was going to graze his cattle, the appellant Ujur Ali along with Towaz Uddin and Siddique Ali mounted assault on him by dao, dagger etc. and thereby caused multiple injuries on the person of said Jallal Uddin. Later on the injured was shifted to Bilasipara SHC, wherefrom he was referred to Dhubri Civil Hospital for treatment. The PW-2, Joynal Abedin lodged an FIR with the Bilasipara Police Station, on the basis of which, police registered Bilasipara P.S. Case No. 225/2005 u/s 341/307/326/34 IPC and eventually on conclusion of the investigation submitted charge-sheet against the appellant.

4. During trial, learned Additional Sessions Judge framed charges u/s 307/326 IPC against the appellant, which were abjured by him. 9 (nine) witnesses examined by the prosecution to substantiate the charges. The appellant was examined u/s 313 CrPC, wherein the appellant took the plea of alibi and stated that at the time of occurrence, he was working at Numaligarh brick kiln. Though the appellant consistently took the plea of alibi, in his statement recorded u/s 113 CrPC, no further evidence or material could be brought on record to substantiate such plea.

5. The injured Jallal Uddin was examined as PW-1, who testified that while he was coming back home after leaving his cattle for grazing, suddenly the appellant Ujur Ali along with some others assaulted him and having sustained injury due to the assault, he became fainted. He (PW-1) also stated that he was in hospital for 1½ months and most of the injuries were sustained by him on the head and upper limbs. During cross-examination, the prosecution did not deny the factum of the appellant having sustained injury on the date of occurrence. However, a suggestion was put to this witness that he went to the house of appellant Ujur Ali for stealing cattle and he was chased by Siddique Ali. While trying to run away on being chased by Siddique Ali, he sustained the injuries by falling, which was denied by PW-1.

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6. According to PW-2, the informant , while he was in his shop, one youth of Nath community informed him about the occurrence and immediately he rushed to the place and found his father being taken to the hospital in a handcart. According to PW-2, his father (injured) told that Ujur Ali assaulted him. The PW-2, further stated to have seen injuries on the face, hands, abdomen etc., of his father.

7. PW-4 stated that he had seen the PW-1 lying on the road with injuries and on request of the injured person, he along with others shifted him to his home. PW-5 was also not an eye witness and came later on and had seen injuries on the body of PW-1. PW-3, PW-7 & PW-8 were also post occurrence witnesses, as they came later, and stated to have heard about the occurrence.

8. The doctor (PW-6), who examined the injured(PW-1) found the following injuries on his person :-

"Multiple chop wound : (1) Chop wound over left side of cheek oral cavity was opened size 4 inches x 1 inch x 1 inch. (2) chop wound over right cheek parotid gland was opened. Pinna of the ear severed through middle mastoid cavity was opened. External auditory meatum was opened. 6 inches x 1 inch x 1 inch (3) Chop wound of the right wrist ulna was severed at the level of lower 3rd size 2 inches x 1 inch x 1 inch. (4) Chop wound of right forearm. Size 2 inches x ½ inch x ½ inch. (5) chop wound over sternum towards the right clevicular joint was opened. Size 2 inches x 1 inch x 1 inch sternum severed. (6) Chop wound back of the neck. Size 4 inches x 2 inches x 1 inch. (7) Chop wound of left scapula. Size 2 inches x 1 inch. (8) Incised wound over left cheek below the ear. Size 2 inches x ¼ inchx ¼ inch. (9) Chop wound of left arm. Size 1 inch x ¼ inchx ¼ inch."

9. It has been elicited during cross-examination that the injured was admitted in the hospital on 13-09-2005 at 1.30 pm and was discharged on 23-09-2005. He also proved the injury report as Ext.-2.

10. On the basis of the above evidence, the learned trial court recorded the conviction and awarded sentence as indicated above.

11. Learned counsel for the appellant submitted that the injury sustained by the PW-1 does not come within the purview of grievous hurt as defined in Section 320 of the IPC, and as such, conviction of the appellant could not have been recorded u/s 326 IPC. At best, a Page No.# 4/6

conviction u/s 324 IPC could have been recorded on the basis of the injury sustained by the injured. Learned counsel also tried to impress this Court on the basis of the evidence of PW-6 (doctor), more particularly, the date and number of GD Entry mentioned in the injury report that anomalies in the GD Entry number cast a doubt on the prosecution case. It was also argued that there was delay in lodging the FIR.

12. As per evidence of the doctor as well as Ext.-2, the injury report, the victim/injured was examined by the doctor in connection with GD Entry No. 456 dated 13-04-2005, whereas, the GD Entry number relating to the lodging of the FIR in the instant case was 609 of 17-09-2015, as revealed from the evidence of PW-9. It is evident that though, the occurrence took place on 13-09-2005, the FIR was lodged on 17-09-2005. It is in the evidence of the investigating officer as well as the doctor, that the injured was taken to hospital on 13-09-2005 itself at about 1.30 pm by police, meaning thereby, that before lodging the formal FIR, the injured was taken to hospital immediately after the occurrence and later on the formal FIR was lodged. From the testimony of the doctor, it is evident that the injured was taken to hospital on 13-09-2005, i.e., on the date of occurrence. The PW-1 sustaining injuries 13-09-2005 has also not been denied by the defence, as indicated above, inasmuch as, the suggestion given by the defence was that he sustained injury by falling, while running away on being chased by Siddique Ali. Therefore, it is not difficult to understand that GD Entry in respect of lodging the FIR and the GD Entry on the basis of which the injured was taken for treatment by the police could not be the same, inasmuch as, the formal FIR was lodged after three days of the occurrence. Therefore, the anomaly in respect of the date pertaining to GD Entry No. 456 of 13-09-2015 in the facts and circumstances, can very well be attributed to human error on the part of the doctor, who had prepared the injury report(Ext.-2), which cannot affect the prosecution case.

13. Apparently the FIR was lodged after 4 days. The explanation given for the delay in lodging the FIR was that as, the PW-2 was busy in treatment of the injured, he could not lodge the formal FIR promptly. Having regard to the seriousness of the injuries sustained by PW-1, being an old man of 75 years of age, and the attention required to be given for his treatment, the explanation advanced by the informant appears to be quite reasonable, inasmuch as, lodging the FIR cannot be expected to be more important for a son, than the Page No.# 5/6

treatment and well being of his father, who was seriously injured and fighting with death. The delay in lodging the FIR seems to have been satisfactorily explained in the facts and circumstances of he case, and as such, the delay in lodging the FIR, as indicated above, in my considered opinion, is not capable of creating any dent in the prosecution case.

14. Be that as it may, the evidence of PW-1(injured), that he was assaulted by the accused/appellant could not be shaken during cross-examination. The testimony of PW-2 that the PW-1 sustained multiple injuries also finds support from the medical evidence, inasmuch as, as per the evidence of PW-6 (doctor), the injured sustained as many as nine injures caused by sharp weapon. The doctor stated that the injury Nos. 1 to 6 were grievous and the injury Nos. 6 to 9 were simple and all the injuries were caused by sharp object. The injuries No. (2) shows that the pinna of the ear was served due to chopped injury and the injury No. & (3) shows severance of right wrist ulna at the level of lower third. These two injuries clearly come within clause (3) and clause (4) of the definition of grievous hurt u/s 320 of the IPC. Evidently all the injuries were caused by sharp object being an instrument of cutting. Therefore, in my considered view, the injuries sustained by the victim are certainly covered by the definition of Section 320 of the IPC, and as such, the conviction of the appellant u/s 326 IPC cannot be faulted.

15. Evidently the victim (PW-1) sustained multiple injuries caused by sharp weapon and at least two of the injuries were of grievous in nature, for which, the PW-1(injured) had to be hospitalized for 10 days. Now the only question is whether the conviction of the appellant u/s 307 IPC is sustainable. In order to determine whether an offence u/s 307 IPC is made out , the crucial fact to be considered is the intention and knowledge with which the injuries were inflicted and not the gravity of the injury, reason being that even the injury is minor or there may be no injury at all, then also an offence u/s 307 IPC may be made out, provided the other ingredients of the offence u/s 307 IPC are present.

16. In order to bring home, a charge u/s 307 IPC for attempt to commit murder, the prosecution need to prove that the accused did any act with such intention, that if by the act of the accused, death would have been caused, the accused would be liable for commission of murder u/s 302 IPC. Therefore, in order to establish the charge u/s 307 IPC, all the ingredients of Section 302 IPC, except, death is required to be proved. It is therefore, the Page No.# 6/6

intention or knowledge with which the accused did the act is of primary importance and not the gravity of the injuries. In the instant case, evidently the PW-1 inflicted multiple injuries to the victim. It is also discernible from the evidence, more particularly, the evidence of PW-1, that while he was subjected to assault by the appellant, there was none to intervene. After the occurrence, apparently the appellant left the place keeping the PW-1 in injured condition and thereafter the PW-1 was shifted to hospital for treatment. The nature of injuries, the parts of the body selected for causing majority of the injuries and the conduct of the appellant that he had left the place after causing injuries, clearly suggests that the accused did not have the intention to cause death of the injured. Had the accused harbored any intention to cause death of the injured, he could have finished the life of the injured and would not have left the place after inflicting the injuries. Thus, having regard to the nature of injuries and the attending facts and circumstances of the case, this Court is of the view that the requisite intention and knowledge to constitute the offence of attempt to murder u/s 307 IPC cannot be attributed to the appellant, and as such, the conviction and sentence of the appellant u/s 307 IPC is not sustainable. Accordingly, the conviction and sentence of the appellant u/s 307 IPC is set aside.

17. Having regard to the age of accused/appellant and the facts and circumstances of the case, the sentence of 10 years recorded by the learned Sessions Judge u/s 326 IPC seems to be on the higher side and required to be modified so as to commensurate with the gravity of the offence. Therefore, I am of the view that sentencing the accused to 4(four) years would meet the ends of justice. Accordingly, the sentence is reduced to R.I. for 4(four) years u/s 326 IPC. However, the fine and default sentence imposed by the learned Sessions Judge u/s 326 of the IPC calls for no interference.

18. With the above modification in the conviction and sentence of the appellant, the appeal is partly allowed.

19. Send back the LCR.

JUDGE

Comparing Assistant