Harish Chandra Nath vs The State Of Assam
2023 Latest Caselaw 2864 Gua

                                                                         Page No.# 1/12

GAHC010002892012




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

                                 Case No. : Crl.A./9/2012

            HARISH CHANDRA NATH
            S/O LATE HARESWAR NATH, R/O VILL. DIAJIJURI, P.S. KOKRAJHAR, DIST.
            KOKRAJHAR BTC, ASSAM.



            VERSUS

            THE STATE OF ASSAM




Advocate for the Petitioner   : MR.M CHIRING

Advocate for the Respondent :

BEFORE THE HON'BLE MR JUSTICE ARUN DEV CHOUDHURY

For the Appellant : Mr. DCC Phukan, Advocate Mr. D Gogoi, Amicus

For the Respondents : Mr. D Das, learned Additional PP, Assam

Date of Hearing : 04.08.2023

Date of Judgement : 04.08.2023 Page No.# 2/12

JUDGEMENT & ORDER (ORAL)

1. Heard Mr. DCC Phukan, the learned counsel for the appellant and Mr. D

Gogoi, learned amicus curiae. Also heard Mr. D Das, the learned Additional

P.P., Assam, appearing for the State.

2. This appeal is preferred against the judgment dated 19.12.2011 passed by

the learned Additional Sessions Judge (FTC), Kokrajhar in Sessions Case

No. 08/2008. By the aforesaid judgment the appellant was convicted under

Section 307/ 323 IPC and was sentenced to suffer rigorous imprisonment

for 5 years and a fine of Rs. 5,000/- in default of which rigorous

imprisonment for 5 months under Section 307 IPC and to pay fine of Rs.

300/- only in default of which simple imprisonment for one month under

Section 323 IPC.

3. The prosecution was launched on the basis of an FIR filed by the victim,

inter alia alleging that the accused/ appellant assaulted the victim by fist

and kick blows causing swelling injury to her. It was also alleged that her

legs were tied up with rope by the accused with the help of some other

persons and thereafter police arrived. She specifically mentioned

involvement of the present appellant Harish Chandra Nath in commission

of the offence. On the basis of the aforesaid investigation, the investigating Page No.# 3/12

officer filed charge-sheet under Section 307/323 IPC against the petitioner

and three others persons including the husband of the victim. Thereafter,

the committal court committed the matter to the learned Sessions Judge,

Kokrajhar, who in turn entrusted the trial to the learned Additional Sessions

Judge, Kokrajhar.

4. Charges were framed against the appellants, Anil Nath, one Purnima Nath

and one Dipti Nath under Section 307/323 IPC. The appellant and others

denied their guilt and accordingly trial proceeded.

5. To bring home the charges, the prosecution examined as many as 7

witnesses and exhibited certain documents including medical report and

statement of the victim under Section 164 Cr.P.C.

6. The PW1 is a fellow villager, PW2, is Gaon Burah of the village, PW3 claims

to be an eye witness, PW4 is the victim, PW5 is the maternal aunt of the

victim, PW6 is the doctor, who examined the victim and submitted medical

report and PW7 is the investigating officer.

7. Before going into details to the deposition of other witnesses this court is of

the considered opinion that the star witnesses of the prosecution are PW3,

the eye witness, PW4, the victim and PW6, the doctor.

Page No.# 4/12

8. The evidence of PW 2 i.e. the village head , in the considered opinion of this

court is also relevant for determination of the present litigation though the

deposition of PW1 and PW5, who are not eye witnesses are not so relevant

for determination of the present case.

9. The victim, PW4 deposed before the court in the similar line that of the

narration made in the FIR. However, during her examination under Section

164 Cr.P.C. she added an allegation beyond the FIR that the appellant

Harish Chandra Nath poured kerosene on her body and tried to burn her.

Similar stand was taken by her in her deposition before the court. She

specifically deposed during her evidence that Harish Chandra Nath, Mitra

Mohan Nath, Purnima Nath and Dipti Nath started assaulting her. Purnima

Nath held her hair and put her to the courtyard where she was assaulted.

She made a specific statement that that Harish Nath gave blows on her

eyes and face. During her cross-examination, her statement that Harish

Chandra Nath gave blows on her eyes and face and Harish Nath, Mitra

Mohan Nath, Purnima Nath and Dipti Nath started assaulting her remained

unshaken.

10. The PW 3, who claims to be an eye witness also deposed that Harish

Chandra Nath assaulted Purnima, poured kerosene on her body and tried Page No.# 5/12

to set her on fire by using matchbox. According to him, he advised the

accused that they should not assault the victim on road and if she was

guilty they should lodge a complaint in the Club and with the village head.

During his cross-examination, he deposed that Harish Chandra Nath had

beaten her with a bamboo stick. He denied the suggestion that he was

having illicit relation with the victim. He also denied the suggestion that

Harish Chandra Nath did not assault Purnima.

11. PW2, the village head, during his evidence-in-chief before the court

deposed that at about 8 p.m. Harish Chandra Nath, Mitra Mohan Nath etc.

came to his house taking along with them the victim. He deposed that as

he was the village head they approached him to lodge a complaint. He

further deposed that the incident took place in connection with return of

victim to her matrimonial home after two years of marriage. He refused to

hold the 'bishar' so late in the night and advised them that 'bishar' should

be held on the following date. During cross-examination, he deposed that

Anil and member of his family never assaulted Purnima physically and

mentally. He further deposed that neither any assault was made nor any

torture was inflicted in his presence on the day of occurrence.

12. PW 6, Doctor during his examination-in-chief deposed that on 30.07.2005 Page No.# 6/12

while he was working at R.N.B. Civil Hospital, Kokrajhar as Medical &

Health Officer at around 12 midnight he examined the victim, who was

brought by one Sri H.S. Paul, S.I. of Kokrajhar PS in connection with

Kokrajhar PS M.R. No. 239/2005 dated 30.07.2005. On examination, he

found the following injuries on body of the victim:

"i. Blackening of left eye,

ii. Tenderness over left upper eyelid,

iii. Tenderness over nose,

iv. Tenderness and swelling over upper lip and

v. All the injuries are of duration less than 06 hours.

He opined that injuries were simple and caused by blunt weapon and same

are less than 06 hours old. He exhibited and proved the medical report as

Ext.2 and his signature as Ext. 2(1). During his cross-examination, he

deposed that he has not written the history of the injury and also stated

that the injury mentioned by him in his report are not in the nature of

attempting to murder.

13. The PW7, S.I., Narayan Ch. Biswas submitted that he entered into the Page No.# 7/12

investigation at a later point of time and the initial investigation was done

by one Himangsu Shekhar Paul, who in the meantime expired and after his

expiry the PW7 was entrusted to the investigation. He proved and stated

that statements were recorded under Section 161 Cr.P.C. as well as

statement of the victim under Section 164 Cr.P.C.

14. PW1 deposed that the incident took place about 8 p.m. on the day of

occurrence while he was at his residence. He was informed by his nephew

that the victim had come back to her matrimonial home. Then he went to

the place and saw lots of people including the victim. Accordingly, he

advised that the victim be taken to the village head as she had returned to

the family after four years. He deposed that when he reached the house of

the village head in the meantime police reached there and therefrom police

took the victim along with them.

15. PW 5's evidence is having no relevance as she deposed in examination-in-

chief that she know nothing about the incident except the fact that her

niece i.e. the victim got married to accused Anil one year prior to incident.

She deposed that about 6 months after the marriage her niece gave birth

to a girl child.

Page No.# 8/12

16. The learned counsel for the appellant submits that there is no iota of

evidence to convict the appellant under Section 307 IPC though an

allegation was made that an attempt to kill her was made by setting her on

fire and kerosene was poured on her body. However, such evidence is not

corroborated by any of the witnesses inasmuch as the investigating

authority has not seized the wearing apparel of the victim to at least

establish that kerosene was poured. He further argues that the evidence of

the Doctor also does not reflect any burn injury. In that view of the matter,

a case under Section 307 IPC is not made out and therefore the learned

trial court has committed serious error of law as well as fact in convicting

the accused under Section 307 IPC.

17. The learned counsel further contends that there is also no evidence of

inflicting injury upon the victim by the appellant herein. Therefore, a doubt

has been created whether the appellant had inflicted any injury upon the

victim inasmuch as the village head who is the independent witness has in

his cross-examination deposed that he has not seen any assault by the

accused.

18. Per contra, Mr. D Das, learned Additional Public Prosecutor appearing for

the State submits that the victim who is an injured witness clearly deposed Page No.# 9/12

that the appellant Harish Nath poured kerosene on the body of the victim

and attempted to burn her and such consistent statement not only

remained unshaken but the PW3, who is an eye witness also collaborated

such evidence. Therefore, failure on the part of the investigating authority

in not seizing the wearing apparel and not sending the same to the FSL

shall have no effect upon the present case. Thus, the prosecution has been

able to establish beyond any reasonable doubt that there was an attempt

to murder the victim by the accused appellant.

19. I have given anxious consideration to the submissions advanced by the

learned counsel for the parties and also perused the material available on

record.

20. From the evidence as discussed hereinabove, this court can concluded that:

A. The PW1, who is the co-villager, the PW3, who is an eye witness

and the PW4, the victim clearly established that a quarrel took place

on the fateful day in the matrimonial house of the victim.

B. It is also established beyond any reasonable doubt that the victim

was taken to the place of the PW2, the Village head.

C. It is further established that the victim was rescued by the police Page No.# 10/12

from the residence of the village head.

D. The evidence of PW 2 so far relating to inflicting blow injury on

the face and eye of the victim as deposed by the victim remained

unshaken. The defence has failed to bring anything out of the victim

to dislodge such evidence.

F. The medical report of the doctor corroborated that injuries were

inflicted in the eye and face and the injury as discussed hereinabove

are in the same one as deposed by the PW1.

G. Thus, it is established beyond reasonable doubt from the

evidence of the PW4 and PW6 that the victim got injured by use of

blunt weapon in her eyes and face and such injuries are simple in

nature.

H. Therefore, the question remains who inflicted the injury. The

evidence of PW4, the victim regarding giving blow by Harish

remained unshaken as discussed hereinabove. Such fact has also

been corroborated and ascertained by PW3, who is the eye witness.

The other witnesses except PW5 established that Harish Nath was

present not only at the place of occurrence but he also took the Page No.# 11/12

victim along with others to the residence of village head.

I. Therefore, on the basis of the aforesaid evidence, this court is of

unhesitant view that the injuries were inflicted by none other than

the appellant. It is also clear from the unshaken medical evidence

that the injury is simple in nature and therefore, this court cannot

find fault with the conviction and sentence awarded upon the

appellant under Section 323 IPC. Accordingly, such conviction is

upheld.

21. Now coming to the conviction under Section 307 IPC, this court is of the

considered opinion that though an allegation has been made that kerosene

was poured and an attempt to burn her was made, however, in absence of

the seizure of the wearing apparel of the victim and in absence of the

seizure of the matchbox and in absence of any such injury, this court

cannot conclusively hold only on the basis of the evidence of the victim

that kerosene was poured and an attempt was made to burn her out.

22. Accordingly, a doubt still remains whether there was an attempt to murder

to the victim by pouring kerosene and by putting fire on her body.

Therefore, the appellant is entitled for the benefit of doubt in the present

case.

Page No.# 12/12

23. In view of the aforesaid, the conviction under Section 307 IPC awarded by

the learned trial court is set aside and quashed.

24. With the aforesaid, the present appeal stands partly allowed. Registry to

communicate the order to the learned trial court below so as to execute

the conviction that has been upheld by this court. While parting with this

record, this court puts on record the able assistance rendered by the

learned Amicus Curiae, Mr. D Gogoi. Registry to pay him remuneration as

per existing norm. LCR be returned back.

JUDGE

Comparing Assistant