Amal Sonowal vs State Of Assam
2022 Latest Caselaw 1540 Gua

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GAHC010213412011




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

                                Case No. : Crl.A./154/2011

            AMAL SONOWAL
            S/O SRI JUGESH SONOWAL, R/O ALAKIA SUTI GAON, P.S. SILAPATHAR,
            DIST. DHEMAJI, ASSAM.



            VERSUS

            STATE OF ASSAM




Advocate for the Petitioner   : MR.R K DUTTA

Advocate for the Respondent : Mr. P Borthakur

BEFORE HONOURABLE MR. JUSTICE AJIT BORTHAKUR

Date : 11-05-2022

JUDGMENT & ORDER

Heard Mr. U.J. Saikia, learned counsel appearing for the accused appellant. Also heard Mr. P. Borthakur, learned Additional Public Prosecutor, Gauhati High Court.

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2. This appeal under Section 374 (2) of the Cr.P.C. is preferred against the judgment and order, dated 30.07.2011, passed by the learned Sessions Judge, Dhemaji in Sessions Case No. 85(DH)/2009 whereby the appellant has been convicted under Section 324 of the Indian Penal Code ('IPC' for short) and sentenced to undergo rigorous imprisonment for 1 (one) year and to pay fine of Rs.5,000/- (Rupees Five Thousand), in default, to suffer simple imprisonment for 3 (three) months.

PROSECUTION STORY:

3. The prosecution story, in brief, is that on 05.09.2009, the informant Soneswar Sonowal lodged an FIR at Silapathar P.S. alleging, inter-alia, that on that day, at about 4 p.m., the accused appellant wrongfully restrained his younger brother Phukan Sonowal while he was returning from his workplace and assaulted him on his head with a sharp weapon with an intention to kill him.

INVESTIGATION & TRIAL:

4. On receipt of the FIR, the police registered a case vide Silapathar P.S. Case No. 238/2009 under Sections 341/326/307 of the IPC and started investigation. After completion of investigation, a charge-sheet was laid against the accused appellant under Sections 341/324/307 of the IPC.

5. Thereafter, the case was committed by the learned Chief Judicial Magistrate, Dhemaji to the Court of Sessions, Dhemaji for trial and accordingly, it was registered as Sessions Case No. 85(DH)/2009. Charges were framed against the accused appellant under Sections 341/324/307 of the IPC, which were read over and explained to him, to which he pleaded not guilty and claimed to be tried. In order to bring home the Page No.# 3/12

charges under Sections 341/324/307 of the IPC, the prosecution examined as many as 8 (eight) witnesses. The statement of the accused was recorded under Sections 313 Cr.P.C. He pleaded that while the victim attacked him armed with a mit dao, he snatched away the said dao and produced it at the police station. In support of his aforesaid plea, the accused examined himself as D.W. 1 another as D.W. 2. After conclusion of trial, the accused appellant has been convicted and sentenced by the learned Sessions Judge, Dhemaji as stated above.

6. Now, let us look to the evidence on record.

PROECUTION EVIDENCE:

7. P.W. 1, Phukan Sonowal is the victim in the case. He stated that the incident occurred about 4/5 months ago at about 4.30/5.00 p.m., in front of a rice mill situated on the side of a road in Jalakiahuti village. On that day, he was returning home from his workplace on foot. While he opened the gate of the mill to go home by short cut way, the accused Amal Sonowal hit him with a sharp weapon (like mit dao) on his head causing cut injury and then fled away. His wife, who was coming after him started shouting on seeing the blood oozing out from his head. Then, someone shifted him to Silapathar PHE on a pull cart. The victim/P.W. 1 also stated that he could recognize the accused appellant as there was dim light in the area. His elder brother Soneswar Sonowal lodged the FIR against the accused appellant. During cross-examination, P.W. 1 stated that on the day of occurrence, he was working in a mill under GREF, located about 15 to 20 kms. away from his house. He came by a vehicle of GREF and got down near the mill about 250 meters away from his home. The accused assaulted him from front side while he was entering the mill compound by opening the gate. He further stated that the weapon, which was used by the accused, was a mit dao.

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8. P.W. 2, Rupali Sonowal is the wife of P.W. 1. According to her, the incident took place on 05.09.2009 at about 5.00 p.m. in front of the gate of the rice mill of their village. At the time of the incident, she was coming from the shop and her husband was returning from his duty after getting down from the vehicle. She was following at about 30 feet behind him. As soon as her husband entered the mill campus by opening the gate, the accused appellant inflicted a blow on his head with a mit dao, for which he sustained injuries on his left eye up to head. On seeing the incident, she started shouting, ran towards her husband, and caught hold of him and then, the accused ran away. Then, one Jayanta Sonowal and Soneswar Sonowal came to the place of occurrence. As her husband was bleeding profusely, they took him to Silapathar P.H.C. on a pull cart for treatment. Her family members lodged an FIR at the police station. She stated that the weapon of offence was a mit dao. During her cross-examination, she stated that she had not seen the accused inflicting dao blow and that she caught the dao of the accused during scuffle between him and her husband thinking that he might hit him again. She also stated that before the incident the accused tried to assault her.

9. P.W. 3, Jayanta Sonowal in his examination-in-chief stated that the alleged incident took place on a day in the month of August at about 4.30 p.m. inside the gate of the rice mill situated in front of his house while he was sitting in the front yard of his house. He came out of his house on hearing the shouting of a lady like "Katile Katile" and saw the wife of P.W. 1/victim, that is, P.W. 2. He saw P.W. 1/victim lying with head injury and P.W. 2 near him. He saw bleeding from the head of P.W. 1/victim. He stated that he did not see the accused and that on being asked, P.W. 2 told him that the accused had inflicted cut injury on the body of P.W. 1/victim. P.W. 1/victim also told him that the accused appellant had Page No.# 5/12

assaulted him. Then, he took P.W. 1/victim on a pull cart to the sub-centre for treatment. During cross-examination, he stated that P.W. 2 did not tell him at the place of occurrence who assaulted P.W. 1/victim. However, later on, she told him that the accused appellant had assaulted her husband.

10. P.W. 4, Soneswar Sonowal is the brother of P.W. 1/victim. His version is that the incident took place at about 4 p.m. After returning from his daily wage work, his wife informed him that the accused appellant assaulted his brother, P.W. 1/victim. His home is located at about 200 meters away from the home of P.W. 1/victim. He immediately went to the hospital to meet his brother. He lodged the FIR against the accused appellant as told by his family members.

11. P.W. 5, Ganesh Sonowal stated that the incident took place about 4/5 months ago. His wife told him that the accused appellant inflicted cut injury on the person of P.W. 1/victim near the rice mill. He saw P.W. 1/victim while he was being brought in a pull cart with cut injury on his head.

12. P.W. 6, Nilima Lahan stated that she saw the accused at the police station with a mit dao. The police seized a mit dao in her presence. She also heard the accused telling that he had come after cutting someone with the said dao.

13. The evidence of P.W. 7, Subhash Lalung is that while he went to Silapathar Police Station along with one Deba Lalung to deliver sand-gravel inside the campus, the O/C of the said P.S. took them to his office and directed them to put their signatures on a paper. Accordingly, he put his signature on that paper. He knew nothing about the incident.

14. P.W. 8, Dr. Chandra Kt. Mili is the doctor, who medically examined P.W. 1/victim on 05.09.2009. His version is that on that day, he was posted as Medical & Health Officer-I at Silapathar P.H.C. He examined P.W. 1/victim on Page No.# 6/12

police requisition. He found the following injuries on the person of P.W. 1/victim-

1. Sharp cut injury on the left parietal area-

Length 6 c.m., Depth ½ c.m. and breadth ½ c.m. Fresh bleeding found.

Remarks:-

Simple sharp-cut injury caused by sharp weapon. Exhibit- 3 is my medical report and Ext.- 3(1) is my signature therein. The defence declined to cross-examine this witness.

DEFENCE EVIDENCE:

15. D.W. 1 is the accused appellant. His version is that at the relevant time, he was working at Demow in GREF. On the day of occurrence, while he was going for night duty towards rice mill, P.W. 1/victim restrained him along with his wife and tried to assault him with a mit dao. During scuffle, he snatched the mit dao from P.W.1/victim's hand and went to the police station. He did not know whether P.W. 1 was injured or not. He denied that he assaulted P.W. 1. People saw them scuffling. According to him, one Mani Sonowal and another were present at the place of occurrence. During cross-examination, D.W. 1 stated that he heard that P.W. 1/victim sustained injury on the head. He confessed before the Magistrate that P.W. 1/victim came with a mit dao and that the said dao hit on his head while he tried to snatch it from him. D.W. 1 went to the police station with the said dao, stated that he had come to the police station after cutting P.W. 1/victim and wanted to surrender himself.

16. The evidence of D.W. 2, Moni Kt. Sonowal is that a quarrel broke out between the families of P.W.1/victim and the accused appellant as the family members of P.W.1/victim used to throw garbage in the pond of the accused appellant. On the day of occurrence, D.W. 2 was returning from duty along with P.W.1/victim in a vehicle. As soon as the vehicle stopped at Jalakiahuti he saw Page No.# 7/12

the wife of P.W.1/victim, that is P.W. 2, running towards the vehicle and stopped there. Then, both P.W.1/victim and P.W. 2 ran towards the mill. D.W. 1 and few others also walked towards that place thinking that something had happened there. On reaching the place, D.W. 1 saw P.W.1/victim and the accused appellant scuffling inside the campus of the rice mill. He saw a mit dao in the hand of P.W.1/victim and then saw him below the accused appellant. He also saw P.W.1/victim bleeding from his head and the accused appellant running away with the dao in his hand. During cross-examination, D.W. 1 stated that he did not know whether the accused appellant had caused injury on the head of P.W.1/victim.

ANALYSIS OF EVIDENCE:

17. It may pertinently be mentioned that 'hurt' has been defined in Section 319 whereas Section 320 IPC defines 'grievous hurt' and punishment for voluntarily causing such 'hurt' by dangerous weapons or means is provided in Section 324 of the IPC. An object when used, as an instrument of offence capable of causing serious bodily injury is a dangerous weapon such as an instrument for shooting, stabbing, cutting or any other instrument which if used may likely to cause death. The basic ingredient for the offence of Section 324 of the IPC is that the accused must cause simple hurt and it must be caused voluntarily by means of any instrument, which is of aforesaid in nature.

18. In the instant case, a perusal of the medical evidence of P.W. 8, Dr. Chandra Kt. Mili reveals that on examination of the injured (P.W. 1) on 05.09.2009, that is, on the date of occurrence, he found sharp cut injury on his left parietal area, which was simple in nature caused by sharp weapon vide Ext. 3, the medical report. Thus, the doctor's opinion shows that the injured Page No.# 8/12

sustained sharp cut injury, but as his evidence is merely advisory in nature, it is expedient to look for some corroborative testimony.

19. On scrutiny of the evidence of P.W. 1, Phukan Sonowal (injured), P.W. 2 Rupali Sonowal (wife of P.W. 1), P.W. 3 Jayanta Sonowal, P.W. 4 Soneswar Sonowal, P.W. 5 Ganesh Sonowal, who hailed from the same village of both parties corroborated the medical testimony of P.W. 8 deposing that P.W. 1 sustained cut injury. Even the defence evidence of D.W. 1 Amal Sonowal and D.W. 2, Moni Kt. Sonowal also reveal that P.W. 1 sustained cut injury. The evidence of both sides shows that the cut injury received by P.W. 1 was caused by a 'dao', which is a sharp cutting instrument. Thus, it is established beyond doubt that P.W. 1 sustained cut injury, which was simple in nature as the doctor (P.W. 8) opined.

20. The next pertinent question is whether the accused appellant caused the aforesaid hurt on the person of the injured (P.W. 1) by means of a sharp weapon? In this regard, P.W. 1 Phukan Sonowal, the injured, has implicated the accused deposing that while he was on the way back home from his work place and took a shortcut route through the gate of a rice mill located near his residence at about 4.30/5.00 p.m., all on a sudden the accused appeared with a 'mit dao' (a sharp cutting instrument) and inflicted cut wound from his front side above left eye region. He could identify the accused in the dim light of the day. At that moment, his wife P.W. 2 Rupali Sonowal witnessing the incident raised hue and cry. Somebody immediately shifted him to hospital for treatment and his brother P.W. 4 Soneswar Sonowal filed an ejahar. He had no any previous enmity with the accused. Corroborating the evidence of P.W. 1(injured), P.W. 2, his wife, inter-alia, stated to have witnessed the said occurrence while she was following her husband (P.W. 1) at a distance of about 30 feet, on her way back Page No.# 9/12

home from a nearby shop. At that time, one neighbour namely, Kanta Sonowal (not examined) and her brother-in-law, P.W. 4 Soneswar Sonowal were present nearby. It is noticed that in cross-examination, she (P.W. 2) denied the defence suggestion that in her statement under Section 161 Cr.P.C., she did not state to have seen the accused inflicting cut wound on her husband (P.W. 1). This material disputed fact could not be confronted with the investigating officer for his non-examination in the case.

21. On perusal of the evidence of P.W. 4 (informant), it is revealed that he did not witness the actual occurrence and he came to know about it from his wife to the effect that the accused cut his brother (P.W. 1), who is a resident about 200 meters away from his house. He went to the hospital where his brother was treated, but did not enquire from him as to who cut him. However, he filed the ejahar vide Ext. 1 on request of family, but did not read its contents. Thus, P.W. 4's evidence appears to be hearsay being the aforesaid ejahar was lodged on information of his wife, who was not even examined in the case. Therefore, no reliance can be placed on his evidence.

22. The evidence of P.W. 3, Jayanta Sonowal, who is a neighbour, reveals that he also did not witness the alleged actual occurrence and presence of the accused appellant at the place of occurrence, but on his enquiry, P.W. 2, the wife of the injured (P.W. 1) told him that the accused inflicted the cut injury on his (P.W. 1) person. The evidence of P.W. 5 Ganesh Sonowal is also on similar footing of P.W. 3 as he did not witness the actual occurrence, but came to know about the incident from his wife, who is not examined in the case. Thus, his evidence too is hearsay without any evidentiary value. The evidence of P.W. 7 Subhas Lalung also carries no evidentiary significance as he put his signature on Ext. 2, the seizure memo, without knowing its content on request of police.

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23. Turning to the evidence of P.W. 6, Nilima Lahan, it is revealed that she, who was present at the police station, saw the accused appearing at the police station with a 'mit dao' and saying before the police that he came after cutting somebody. She recognized M. Ext. 'Ka', the said 'mit dao', which the police seized vide Ext. 2, the seizure memo. The prosecution, however, did not examine the police officer, before whom the accused appeared and who seized the dao which he allegedly handed over to him. There is also no other evidence to show in what connection, P.W. 6 visited the police station at the relevant time.

24. With regard to the above evidence of P.W. 6, I have scrutinized the defence evidence of D.W. 1 Amal Sonowal, the accused appellant and D.W. 2 Monikanta Sonowal, who claimed to be a friend of both the injured (P.W. 1) and the accused (D.W. 1). Here, it may be pointed out that it is well settled that the evidence tendered by the defence witness cannot always be termed to be a tainted one by reason of the factum of the witnesses being examined as the defence witness. The defence witnesses are entitled to equal respect and treatment as that of the prosecution witnesses and the issue of credibility and trustworthiness ought to be attributed to the defence witnesses on a par with that of the prosecution witnesses.

25. The evidence of D.W. 1 shows that at the time of the alleged occurrence, while he was going for night duty, P.W. 1, the injured and P.W. 2, his wife restrained him on the way and P.W. 1, in fact, attempted to inflict 'mit dao' blow to him, whereupon he snatched his dao. Thereafter, he went to the police station to hand over the said 'mit dao' to the police. At that time, he saw D.W. 2, Monikanta Sonowal being present near the place of occurrence. His cross- examination reveals that he confessed this fact before the Magistrate, but did Page No.# 11/12

not know how P.W. 1 received cut wound and did not file any case against him (P.W. 1). D.W. 2 corroborated his (D.W. 1) testimony deposing that he saw both P.W. 1 and D.W. 1, who are adjacent residents, involving in a scuffle and further, D.W. 1 was seen with a dao in hand and then, D.W. 1 running away from the scene. Later on, he heard that D.W. 1 surrendered at the police station.

26. Now, the question is whether accused's surrender with the alleged weapon of offence before the police establishes his culpability to the crime? The answer is certainly in the negative. Section 25 of the Indian Evidence Act says, "No confession made to a police officer shall be proved as against a person accused of any offence". The case record shows that in the instant case neither the police officer concerned/investigating officer was examined nor any of the witnesses has stated as to what he exactly disclosed. Therefore, such evidence of accused's surrender with weapon after allegedly committing the offence is bared in law. On the other hand, non-examination of the investigating officer in the case has put the vital contradictions of the P.Ws with their previous statements under Section 161 Cr.P.C. unconfirmed/unconfronted. A close scrutiny of the evidence of both sides, it is noticed, give rise to two stories contradicting each other and as such, the defence case also cannot be brushed aside. On the other hand, there was no credible and convincing testimony of any of the prosecution witnesses, except by P.Ws 1 and 2, the injured and his wife respectively to have seen the alleged actual incident.

CONCLUSION:

27. Considered thus, this Court is of the opinion that the impugned judgment and order having suffered from apparent misappreciation of evidence adduced by both sides, the same is liable to be set aside.

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28. Accordingly, the appeal stands allowed, setting aside the impugned judgment and order of conviction of the accused appellant under Section 324 of the IPC and thereby set him at liberty forthwith.

Return the L.C.R.

Appeal stands disposed of.

JUDGE

Comparing Assistant