Crl.A./163/2011
2022 Latest Caselaw 4432 Gua

                                                                              Page No.# 1/14

GAHC010008282011




                      THE GAUHATI HIGH COURT AT GUWAHATI
           (The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)

                              PRINCIPAL SEAT AT GUWAHATI


                              Criminal Appeal No. 163 of 2011


         Md. Nur Bahar Ali,
        Son of Late Sekendar Ali,
         Vilage Harimura, P.S.-Mornoi,
        District - Goalpara, Assam
                                                              ..................Accused/Appellant


                      -Versus-


        The State of Assam,
        Represented by the Public Prosecutor, Assam.
                                                                         ...............Respondent

Advocates for the appellant         :        Mr S Munir
Advocate for the respondent      :           Mr M P Goswami, Addl.PP.


                                               BEFORE
                       HON'BLE MRS. JUSTICE MALASRI NANDI


   Date of Judgment                      :       14.11.2022
                                                                                  Page No.# 2/14

                             JUDGEMENT AND ORDER (CAV)

Heard Mr S Munir, learned counsel appearing for the accused appellant and Mr M P

Goswami, learned Additional Public Prosecutor, appearing for and on behalf of the State

respondent.

2. This appeal has been preferred under Section 374 CrPC against the Judgment and Order

dated 15.07.2011, passed by the learned Sessions Judge, Goalpara, in Sessions Case No.

43/2010, under Section 325 IPC, convicting the accused appellant to undergo Simple

Imprisonment for one month and to pay a fine of Rs. 1,000/- and in default of payment of

fine, Simple Imprisonment for another term of 15 days.

3. The brief facts of the case is that the informant Dilip Kumar Rabha lodged an FIR before

the Officer-In-Charge, Mornoi Police Station, on 22.05.2009, stating inter alia that on the

same day, at about 11:00 am, while he was proceeding towards Krishnai through Herimura

Krishnai road and when he reached in front of the house of Md. Nur Bahar Ali, the accused

persons, namely, Md. Nuriman Ali, Md. Tohidul Ali and Md. Nur Bahar Ali restrained his way

by surrounding his motor cycle and accused Nur Bahar assaulted him with a stick, causing

grievous injuries on his head. Immediately, after the incident, one Pradip Deka and another

Rajen Roy accompanied him to Primary Health Centre, for his treatment and subsequently he

was shifted to the Civil Hospital, at Goalpara, wherein he took treatment as an indoor patient.

4. On receipt of the complaint, a case was registered vide Mornoi Police Station Case No.

510/2009, under Sections 341/325/326/ 307/34 IPC and investigation was started. During

investigation, the Investigating Officer visited the place of occurrence, recorded the statement

of the witnesses and seized one stick from the place of occurrence. The injured was taken to Page No.# 3/14

the hospital and subsequently, he collected the medical report of the victim. After completion

of investigation, charge sheet was submitted against the aforesaid accused persons, under

Section 341/325/326/307/34 IPC before the Court of learned SDJM, Goalpara. As the offence

under Section 307 IPC is exclusively triable by the Court of Sessions, the case was committed

accordingly.

5. During trial, the charge was framed under Sections 307/326/34 IPC, which was read

over and explained to the accused persons, to which they pleaded not guilty. To substantiate

the case of the prosecution, eight witnesses were examined and marked some exhibits and

material exhibits. After completion of the trial, statements of accused persons were recorded

under Section 313 CrPC, against the incriminating materials found in the evidence of the

witnesses, to which they denied the fact of assault. It is also stated that they have been

falsely implicated in the case. After hearing the arguments advanced by learned counsel for

the accused persons as well as the prosecution, the trial Court had convicted the accused

appellant Nur Bahar Ali, under Section 325 IPC and two other accused persons, namely, Md

Nuriman Ali and Md Tohidul Ali were acquitted. Hence the present appeal has been preferred

by the appellant, Md Nur Bahar Ali.

6. It was urged by learned counsel for the appellant that the appellant had no knowledge

that the assault would cause grievous injuries to the victim and that the blow was only a

single blow with a stick and not a repeated one. As such, the assault was a single, that too

arising out of an earlier grudge, relating to public crematorium of their village. Hence, the

conviction and sentence is liable to be set aside.

7. It is also the submission of the learned counsel for the appellant that four eye witnesses Page No.# 4/14

were examined by the prosecution, who implicated the accused appellant to be the

perpetrator of the crime and the punishment for the offence under Section 325 IPC includes

imprisonment and fine. Considering the background of the case, a minimum punishment was

imposed by the learned trial Court. It is admitted by the learned counsel for the appellant

that the prosecution has proved the case by adducing evidence that the appellant had

committed the offence. Alternatively, he has submitted that the accused may be released on

Probation of Offenders Act, with any condition.

8. Per contra, learned Additional Public Prosecutor has submitted that the prosecution has

examined four eye-witnesses, who have proved that the accused appellant had assaulted the

victim, as a result of which the victim sustained grievous injuries on his person. The learned

trial Court has rightly convicted the accused appellant under Section 325 IPC with minimum

punishment, which needs no interference.

9. I have considered the submissions of learned counsel for both the parties. I have also

perused the record of Sessions Case No. 43/2010, as well as the evidence of the witnesses

and the documents available in the record.

10. Before proceeding further discussion on the issue, the evidence of the witnesses are

required to be looked into.

11. PW-1, Dr Anup Ghosh is the Medical and Health Officer, who had examined the victim.

He deposed in his evidence that on 22.05.2009, he was working as Medical and Health Officer

in Goalpara Civil Hospital. On that day, he examined Dilip Rabha on police requisition. On

examination, he found injury on his mid region of the skull and noticed profused bleeding

over the injury. The doctor opined that the injury was grievous and caused by sharp object.

Page No.# 5/14

12. In his cross-examination, PW-1 replied that he did not mention the age of the injury in

his report. He also did not mention the colour of the blood, while he examined the injured.

13. PW-2 is the victim, Dilip Kumar Rabha, who deposed in his evidence, that on the date

of incident at 10:30/11:00 am, while he was proceeding towards Krishnai, from his home in

his motor cycle and when he reached Hatimura PWD Road, the accused Nur Bahar Ali asked

him to stop his motorcycle. Then he stopped his motorcycle. Other two accused persons were

also present along with accused Nur Bahar Ali. Accused Nur Bahar then assaulted him with a

lathi causing injury on his head. Blood was oozing out from his injury. Thereafter, one Pradip

Deka arrived on the spot and accompanied him to Harimura Dispensary. But in the said

dispensary, there was no doctor at that time. Thereafter, he was brought to the Goalpara Civil

Hospital by 108 ambulance. In the afternoon, he was referred to the Gauhati Medical College

Hospital. However, since he started to feel better, he did not go to Guwahati and lodged the

FIR in the Mornoi Police Station.

14. In his cross examination, PW-2 replied that prior to the incident, there was a dispute

between him and Nur Bahar pertaining to a plot of land used as crematorium in their village.

After receiving treatment at Goalpara Civil Hospital, he lodged the FIR. After the incident he

raised hue and cry. He did not lose his sense after being assaulted.

15. PW-3 is Pradip Deka, who deposed in his evidence that on the date of incident, he was

at market. Someone told him that an incident had taken place. Then, he immediately rushed

to the place of occurrence and found Dilip Rabha in an injured condition. Blood was oozing

out from his head. He did not see the incident of assault. On being asked, Dilip Rabha replied

that the accused, Nur Bahar assaulted him. Then he accompanied Dilip Rabha in his Page No.# 6/14

motorcycle to the dispensary. From the dispensary, he was taken to the Goalpara Civil

Hospital by 108 ambulance.

16. PW-4 is Kandarpa Roy. From his deposition it reveals that on 22.05.2009, at about

11:00 am, while he was proceeding towards Krishnai, he noticed Dilip Rabha was talking with

accused Md. Nuriman Ali and Md. Tohidul Ali on PWD Road. Suddenly, accused Nur Bahar

appeared there and assaulted Dilip Rabha on his head from his behind with a stick, causing

grievous injury on his head with profuse bleeding. Then he along with Pradip Deka

accompanied the injured to Hatimora Hospital. Subsequently, he was shifted to Goalpara Civil

Hospital.

17. In his cross-examination, PW4 replied that his house is situated about 2 kms away from

the house of the injured and he had cordial relation with the victim. The incident took place

adjacent to the house of accused persons. Pradip Deka belonged to the same village. He

could not say about the conversation, which took place between the injured and the accused

persons. At that time, there was no hue and cry, but subsequently, after the incident, on

hearing hue and cry, some people gathered on the spot, but he could not say their names.

18. PW-5 is Prafulla Roy, who deposed in his evidence that on the date of occurrence at

about 10-10:30 am, while he was going to Krishnai, he noticed Dilip Rabha, who was going

ahead of him, and accused Nuriman talked to Dilip Rabha in front of his house. Sudddenly,

Nur Bahar attacked Dilip with a lathi, causing injury on his head. Blood was oozing out from

his injuries. Having seen the incident, he (PW-5) did not go to Krishnai, but informed about

the incident to his family members.

19. In his cross-examination, PW-5 replied that the incident occurred over Hatimura Natinal Page No.# 7/14

Highway.

20. PW-6 is Tapan Rabha. From his deposition, it reveals that the injured belonged to his

family. On the date of incident, he was monitoring the works of a bridge at about 50 metres

away from the place of occurrence. He saw Dilip Rabha was assaulted by the accused Nur

Bahar with a stick and then he was taken to the Goalpara Civil Hospital. He denied that he did

not state before the Police that he saw the occurrence from a distance of about 50 metres.

He admitted that the accused persons filed a case against Dilip alleging causing of mischief

by him, to their house, by fire. There was no visiting terms between him and the accused

persons.

21. PW-7 is Prasanta Sarkar, who deposed in his evidence that he had found the injured

Dilip Rabha in Hatimura Dispensary with injuries on his head, which was wrapped up with the

gamosa. On being asked, the injured Dilip informed that accused Nur Bahar had caused such

injury on his person. The injured was then sent to Goalpara Civil Hospital in a 108 ambulance.

22. PW-8 is the Investigating Officer, who deposed in his evidence that he visited the place

of occurrence, examined the witnesses present on the spot and seized one bamboo stick and

after completion of investigation submitted charge sheet vide Exhibit-4. It also reveals from

the statement of PW-8 that there was some dispute between Dilip Rabha and the accused

persons, relating to the land of crematorium and the accused persons filed a case against

Dilip, alleging commission of mischief by setting fire in their house.

23. From the evidence of aforesaid witnesses, it reveals that PW-2 is the informant as well

as injured, who alleged that the accused Nur Bahar assaulted him with a stick, causing injury

on his head, and blood was oozing out from his injury. Though the Medical Officer supported Page No.# 8/14

the fact of injury, which he found on the head of the injured, but he opined that the injury

was grievous in nature, but caused by a sharp object. As it appears from the evidence of the

victim as well as the evidence of other witnesses that the accused Nur Bahar Ali assaulted the

victim with a lathi, which is not a sharp object, as such, the medical evidence though not

supported regarding the type of injuries, however, as the ocular evidence supported the

injury caused by the accused on his head, it can be considered that the accused Nur Bahar

used the stick, which is a blunt object, while causing injury to the victim.

24. In the case of Mange -Vs- State of Haryana; reported in AIR 1979 SC 1194, the

Hon'ble Apex Court held that the medical evidence can hardly be relied upon to falsify the

evidence of the eye-witnesses because the medical evidence is guided by various factors

based on guess and certain calculation.

25. In another case, Mayur Panabhai Shah -vs- State of Gujarat; reported in AIR

1983 SC 66, the Hon'ble Supreme Court has observed that-

"It is wrong to say that Doctors are always witness of truth. Even when a Doctor

has deposed in Court, his evidence has got to be appreciated like the evidence of

any other witness and there is no irrebutable presumption that a Doctor is always

a witness of truth."

26. Admittedly, PW-3, PW-4, PW-5 and PW-6 were the eye-witnesses. According to them,

they had seen the accused, Nur Bahar Ali assaulting the victim Dilip, with a lathi causing

injury on his head. Though the aforesaid witnesses were cross-examined by the learned

defence counsel, but nothing has come out to discredit the evidence of the witnesses. It is

true that some dispute is prevailing between the parties, pertaining to land of a crematorium Page No.# 9/14

in their village, but it is not sufficient to disbelieve the evidence of the eye-witnesses, who

had seen the accused Nur Bahar Ali, while assaulting the victim. Apparently, the prosecution

has considerably proved that accused Nur Bahar had committed the offence, for which he

was convicted by the trial Court under Section 325 IPC.

27. The only question that remains to be answered is about the quantum of punishment

and the manner in which the same is to be executed. It appears that the appellant had been

sentenced to Simple Imprisonment for a period of one month and to pay a fine of Rs.

1,000/-, in default to undergo Simple Imprisonment for fifteen days. Corollary to such

findings, is the request of the appellant to exercise the power vested under the provisions of

Code of Criminal Procedure and the Probation of Offenders Act, 1958, in the wake of various

grounds shown by the learned counsel for the appellant, the accused appellant be released

on Probation of Good Conduct, in accordance with law. It is further culled out that 13 years

have elapsed by now and no undue advantage has been taken. Moreover, there are no other

past criminal antecedents against the accused/appellant.

28. In the instant case, no previous conviction or any criminal antecedent has been brought

to record. As noticed, the circumstances of the case have revealed that the occurrence took

place due to fits of anger and in such circumstances, whether it would be appropriate to

provide the benefit of Probation of Offenders Act to the accused appellant.

29. The Apex Court in case of Rashanali Burhanali Syed Vs. State of Gujarat ,

reported in AIR 1982 SC 784 (1) was considering the request to release the appellant on

probation having regard to the petty nature of the offence committed by him. The Court

allowed such an appeal and instead of sentencing the appellant at once to imprisonment, had Page No.# 10/14

directed that the appellant may be released on executing a bond of good behaviour for a

period of one year and to furnish two sureties and a personal recognizance bond of the same

amount. It was further directed that if he is found to commit some offence during this period,

he will be directed to appear and serve the sentence, which has been imposed on him.

30. The Apex Court in case of Ved Prakash Vs. State of Haryana , reported in (1981) 1

SCC 447, while discussing the provisions of Section 360 CrPC held that, sentencing an

accused person is a sensitive exercise of discretion and not a routine or mechanical

prescription acting on hunch. The trial Court should have collected materials necessary to

help award a just punishment in the circumstances. Even if Section 360, CrPC is not attracted,

it is the duty of the sentencing Court to be activist enough to collect such facts as have a

bearing on punishment with a rehabilitating slant.

30.1. When the Court having found no blemish record of the young person, who was before

it, had called for the report of the Probation Officer which had indicated that he was pursuing

a peaceful vocation and he was an agriculturist and had a family to maintain. These were

held to be stabilizing factors in life. A long period of litigation and the little period of

imprisonment suffered, according to the Court, had acted as sufficient deterrence and the

Court directed the accused to be released under Section 4(1) of the Probation of Offenders

Act.

31. In yet another case of Ghanshyam Das Vs. Municipal Corporation of Delhi,

reported in 1975 Cri. L.J. 753 in a conviction under the Prevention of Food Adulteration Act,

when there was a protracted criminal proceedings, the Court released the accused on

probation of good conduct under Section 4 of the Probation of Offenders Act by holding that Page No.# 11/14

it would not be proper to send him to jail.

32. In case of Hansa Vs. State of Punjab; reported in AIR 1977 SC 1991 in a case of

conviction under Section 325 IPC, having regard to the circumstances of the case, nature of

offence and character of the offender held that it was expedient to release the offender on

probation of good conduct for a period of one year, invoking the powers under Section 4 of

Probation of Offenders Act. It would be profitable to reproduce the relevant observations

made in the said decision, which reads thus :

"The occurrence took place as a result of sudden quarrel between some children

and others of the family of Hansa and Mst. Rao in regard throwing of some bricks

or brickbats. In the course of this sudden occurrence Hansa is stated to have

caused the injury on the head of Mst. Rao. Learned counsel for the appellant has

pressed for our consideration the application of provisions of Section 4 of the

Probation of Offenders Act, 1958 to his case. We are inclined to accept this stand

taken on behalf of the appellant as justifiable and tenable in law on the special

facts of this case. The appellant was found guilty of having committed the offence

of causing grievous hurt punishable under Section 325 of the Penal Code. The

maximum sentence provided therein is seven years."

33. Delhi High Court in the case of M/s. Hindustan Times Limited Vs. Ashok Kumar

Agrawal and Anr, reported in 1990 Cri. L.J. 1563, had availed the benefit of probation to

the accused charged under Section 120-B and sections 408/477-A and Section 120-B of the

Indian Penal Code. The accused in this case were ordered to undergo sentence for a period

of two years and they were released on probation for maintaining peace and being of good Page No.# 12/14

conduct on furnishing bail bond.

34. This provision, as is well laid down time and again by the Apex Court is to be applied in

appropriate and suitable cases. And, particularly referring to the case of Phul Singh v.

State of Haryana, reported in AIR 1980 SC 249 is not to be mistaken as undue leniency nor

to be applied in the undeserving cases, where the offenders have committed serious

offences. Neither in case of economic offenders nor in the serious offences against women,

nor in case of those acting against the unity of the country, the benefit of Probation is to be

given. This is a preventive measure which saves the offenders from the adverse effects of

incarceration and help checking recurrence as the objective of such provisions is to afford an

opportunity of reformation to the offender as also

rehabilitation of such persons.

35. In the instant case, the admitted position is that this appeal is pending in the Court for

the last 10 years. The trauma, which the accused appellant was facing during the period of

10 years, is something one cannot imagine. As it appears from the record that the accused is

a poor person having responsibility of maintaining his family with three children and a rustic

housewife with no other source of livelihood and the imprisonment of the appellant means

forcing the four persons of his family in the mouth of miseries and untold hardships.

36. The fact is also not disputed that there are no past criminal antecedents and none of

his conduct is found objectionable or contrary to the requirement of law. No apprehension is

made out nor emerging on record as not to exercise such discretion. Apparently, the accused Page No.# 13/14

appellant is the first offender. Keeping in view the provisions of Probation of Offenders Act,

1958, the principles of law laid down in the judgments cited above and the facts and

circumstances leading to the occurrence, it would be appropriate in this case to give the

benefit of Probation of Offenders Act to the accused appellant as a chance to improve himself

instead of sending him to jail at once.

37. For the foregoing reasons, the accused Nur Bahar is released on probation for a period

of one year in terms of Section 4 of the Probation of Offenders Act, 1958. The accused

appellant is directed to appear before the learned trial Court (Sessions Judge, Goalpara)

within one month from today and execute a bond of Rs. 20,000/- with one surety of the like

amount to the satisfaction of the learned trial Court on condition that during the period of

probation he would maintain peace and be of good behaviour. In addition, the accused

appellant be placed under the supervision of jurisdictional Probation Officer for the said

period of one year for appropriate counseling. After the accused appellant appears before the

trial Court, the trial Court shall fix a date for appearance of the Probation Officer for placing

the accused appellant under his/her supervision. The Probation Officer shall, thereafter,

submit periodical report before the trial Court about the conduct of the accused appellant

during the period of probation.

38. Section 5 of the Probation of Offenders' Act, 1958 provides for compensation to be paid

to the victim in appropriate cases. It appears from the record that the victim sustained injury

on his head which is a vital part of the body, and the injury was grievous in nature, as opined

by the Medical Officer. He was treated in the Hospital as an indoor-patient. Accordingly, the

accused appellant is directed to pay compensation of Rs. 3,000/- (Rupees Three Thousand)

only to the victim. The accused appellant will deposit the said amount of compensation to the Page No.# 14/14

trial Court within a month from today and, thereafter, the learned Sessions Judge, Goalpara

shall issue notice to the victim to appear and receive the compensation from the Court.

39. In the result, appeal stands disposed of with the aforesaid observations.

40. Send down the LCR.

JUDGE

Comparing Assistant