Gauhati High Court
CRL.A(J)/73/2020 on 6 June, 2025
Author: Manish Choudhury
Bench: Manish Choudhury
Page No.# 1/38
GAHC010138092020
2025:GAU-AS:7415
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRL.A(J)/73/2020
Santok Hans, Tinsukia, Assam
..................Appellant
-VERSUS-
The State of Assam, represented by the Public Prosecutor,
Assam.
...................Respondent
Advocates :
Appellant : Mr. M. Dutta, Amicus Curiae
Respondent State : Mr. R.R. Kaushik, Additional Public Prosecutor, Assam
Date of Hearing : 29.05.2025
Date of Judgment & Order : 06.06.2025
BEFORE
HON'BLE MR. JUSTICE MANISH CHOUDHURY
HON'BLE Mrs. JUSTICE Yarenjungla longkumer
JUDGMENT & ORDER
[Manish Choudhury, J]
This criminal appeal from Jail under Section 383, Code of Criminal
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Procedure, 1973 ['CrPC' or 'the Code', for short] is directed against a Judgment
and Order dated 25.11.2019 passed by the Court of learned Additional Sessions
Judge [FTC-1], Margherita, Tinsukia in Sessions Case no. 10[M] of 2016, which
arose out of G.R. Case no. 891/2015 and Margherita Police Station Case no.
300/2015. The accused-appellant faced the trial for causing injuries to two
persons, namely, [i] Swanand Oreya; and [ii] Jeewan Machi Barla, along with a
charge of attempting to commit murder on one of them.
2. By the Judgment and Order dated 25.11.2019, the Court of learned
Additional Sessions Judge [FTC-1], Margherita, Tinsukia has found the accused-
appellant guilty for committing the offences under Section 324, Section 326 and
Section 307 of the Indian Penal Code [IPC]. The accused-appellant has been
sentenced to undergo simple imprisonment for two years under Section 324,
IPC for causing hurt to Swanand Oreya by a dao. The accused-appellant has
also been sentenced to undergo rigorous imprisonment for ten years and to pay
a fine of Rs. 5,000/-, in default of payment of fine, to undergo simple
imprisonment of another 3 [three] months under Section 326, IPC for causing
grievous hurt to Swanand Oreya by the dao. He has also been sentenced to
undergo imprisonment for life and to pay a fine of Rs. 10,000/-, in default of
payment of fine, to undergo simple imprisonment for further 6 [six] months
under Section 307, IPC for attempting to commit murder of Swanand Oreya.
The accused-appellant has been sentenced to undergo rigorous imprisonment of
2 [two] years under Section 324, IPC for voluntarily causing hurt to Jeewan
Machi Barla by a dao. The sentences are ordered to run concurrently and it has
been observed that the period already spent in custody is to be set-off under
Section 428, CrPC, wherever applicable.
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3. The investigation was set into motion on institution of a First Information
Report [FIR] by one James Oreya before the Officer In-Charge, Margherita
Police Station on 28.10.2015 against the accused-appellant [hereinafter also
referred to as 'the appellant', at places, for easy reference]. In the FIR, the
informant had inter-alia alleged that at about 06-30 p.m. on 27.10.2015, when
his younger brother, Swanand Oreya and his companion, Jeewan Machi Barla
were sitting beside a fire in a Tongi Ghar [a watchman's shed in paddy field to
save paddy from insects, birds, wild animals, etc.] in the enclosed yard of a co-
villager, Manchuk Nag, the appellant with a Kalam [pruning] dao in hands,
climbed that Tongi Ghar. After climbing, the appellant, out of his previous
grudge, caused grievous injuries to both Swanand Oreya and Jeewan Machi
Barla by hacking them with the sharp Kalam dao with an intention to kill them.
The informant mentioned that at the time of lodging the FIR, both the injured
persons were undergoing treatment at the Assam Medical College & Hospital
[AMCH] at Dibrugarh in very critical conditions. The informant further mentioned
that as he was busy with the medical treatment of both the injured persons, the
FIR had been lodged belatedly.
4. On receipt of the FIR, the Officer In-Charge, Margherita Police Station
registered the same as Margherita Police Station Case no. 300/2015
[corresponding G.R. Case no. 891/2015] for the offences under Section 326, IPC
and Section 307, IPC. The investigation was entrusted to one Jatin Saikia
[P.W.10], a Sub-Inspector of Police attached to Margherita Police Station.
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5. On being entrusted with the charge of investigation, the Investigating
Officer [I.O.], P.W.10 proceeded to the Place of Occurrence [P.O.] and drew up a
Sketch Map of the P.O. [Ext.-5]. The statements of the witnesses including the
informant, were recorded by him. At the P.O., the I.O found that the appellant
was kept detained by the villagers and he interrogated the appellant. The I.O.
mentioned that he also seized a dao, the alleged weapon of offence, after
recovering it in presence of witnesses vide a Seizure List, Ext.-2. Thereafter, the
I.O. took the appellant along with the seized dao to the Police Station wherein
the statement of the appellant was recorded. The appellant was thereafter,
arrested and forwarded to the court. On being forwarded and produced before
the jurisdictional Magistrate, the appellant was sent to judicial custody. It was
on 15.12.2015, the I.O. recorded the statements of the two injured persons,
after they were released from the AMCH, Dibrugarh after treatment. Later on,
the I.O. [P.W.10] collected the medical reports of both the injured persons from
the AMCH, Dibrugarh. The I.O. [P.W.10] had thereafter, submitted a charge
sheet under Section 173[2], CrPC completing the investigation vide Charge-
Sheet no. 217 on 31.12.2015 finding a prima facie case against the appellant for
committing the offences under Section 324, Section 326 and Section 307 of the
IPC.
6. On submission of the Charge-Sheet, the appearance of the appellant was
secured from Jail custody before the Court of learned Judicial Magistrate, First
Class, Margherita on 20.01.2016. As the copies were ready, the copies were
furnished to the appellant as per the provisions of Section 207, CrPC. A State
Defence Counsel was appointed to represent the appellant in the trial. As the
offence under Section 307, IPC is exclusively triable by the Court of Sessions,
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the learned Judicial Magistrate, First Class, Margherita committed the case
records of G.R. Case no. 891/2015 by an Order of Commitment dated
20.01.2016 under Section 209, CrPC to the Court of Sessions, Tinsukia for trial.
The learned Public Prosecutor was notified accordingly. The appellant was
remanded to Jail custody with a direction to the Jail authorities to produce him
before the Court of Sessions, Tinsukia on 27.01.2016.
7. On receipt of the case records of G.R. Case no. 891/2015, the case was
registered as Sessions Case no. 10[N]/2016. The appearance of the appellant
was secured before the Court of Sessions, Tinsukia ['the Trial Court', for short]
from Jail custody on 24.02.2016. The case was opened by the learned Public
Prosecutor as per Section 226, CrPC. After hearing the learned Public Prosecutor
and the learned State Defence Counsel; and after going through the materials
on record; the learned Trial Court framed the following charges against the
appellant on 24.02.2016 :-
That you on 27.10.2015 at about 06-30 p.m. at Manmo Pathar Bandar Tola under
Margherita Police Station had assaulted Jeewan Machi Barla and Swanand Oreya
with machete thus voluntarily causing hurt on their persons with sharp weapon and
thereby committed an offence punishable under Section 324, IPC and within my
cognizance.
And I hereby direct that you be tried by this Court on the said charge.
Secondly, that you on the same day, place and time had assaulted Swanand Oreya
with a machete thus causing hurt on his person by a dangerous weapon and
thereby committed an offence Section 326, IPC.
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Thirdly, that you on the same day, time and place had assaulted Swanand Oreya
and Jeewan Machi Barla with such intention and knowledge and under such
circumstances that if by your act had caused death to the aforesaid persons you
would have been guilty of murder and thereby committed an offence punishable
under Section 307, IPC and within my cognizance.
And I hereby direct that you be tried by this Court on the said charge.
8. When the charges were read over and explained to the appellant, he
pleaded not guilty and claimed to be tried. During the course of the trial, the
prosecution side examined ten nos. of witnesses and exhibited six nos. of
documentary evidence to bring home the charges against the appellant. The
details of the prosecution witnesses and the documents exhibited are as
under :-
Prosecution Witnesses
P.W.1 James Oreya - Informant
P.W.2 Swanand Oreya
P.W.3 Dulari Horo
P.W.4 Sem Horo
P.W.5 Nikodim Tuti
P.W.6 Matiyas Hanse
P.W.7 Manchuk Nag
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P.W.8 Meena Hanse
Dr. Gautam Kamal - Medical
P.W.9 Officer
Jatin Saikia - Investigating
P.W.10 Officer
Exhibits
Ext.-1 FIR
Ext.-2 Seizure List
Ext.-3 Medical Report
Ext.-4 Medical Report
Ext.-5 Sketch Map
Ext.-6 Charge-Sheet
9. After closure of evidence from the prosecution side, the appellant was
examined under Section 313, CrPC by putting before him the incriminating
circumstances appearing from the evidence of the prosecution witnesses.
During such examination, the appellant admitted about assaulting the two
injured persons. When the appellant was asked whether he would adduce any
evidence in his defence, he stated that he would not adduce evidence for his
defence. After hearing the learned counsel for both the sides; and upon
evaluation of the evidence/materials on record; the learned Trial Court had
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delivered the impugned Judgment and Order of conviction and sentence,
mentioned hereinabove.
10. We have heard Mr. M. Dutta, learned Amicus Curiae appearing for the
appellant and Mr. R.R. Kaushik, learned Additional Public Prosecutor for the
respondent State.
11. Mr. Dutta, learned Amicus Curiae appearing for the appellant has
submitted that the prosecution adduced evidence of an injured witness, P.W.2
and an eye-witness, P.W.7. He has submitted that there were inconsistencies in
the testimony of these two witnesses. He has further pointed out that the other
allegedly injured person, Jeewan Machi Barla was not examined by the
prosecution for reasons best known to the prosecution. The prosecution was
under obligation to produce the best evidence to bring home the charge of
causing hurt to Jeewan Machi Barla. But, the prosecution did not examine
Jeewan Machi Barla, who was the material witness for proving the charge of
causing hurt to him by the appellant. As such, the conviction and sentence
passed in so far as Jeewan Machi Barla is concerned, is liable to be set aside.
The evidence regarding recovery of the alleged weapon of assault was not
convincing. Moreover, the alleged weapon of assault was not produced before
the court during the trial. It is his further contention that the injured witness
and his family had previous enmity with the appellant and due to such previous
enmity, the appellant had been wrongly implicated. He has contended that the
prosecution side had failed to establish the case against the appellant,
notwithstanding his admission during the examination under Section 313 of the
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Code, beyond all reasonable doubts. A number of contradictions were elicited
during the cross-examination of the I.O. [P.W.10] and those contradictions were
on material points. Therefore, the impugned Judgment and Order of conviction
and sentence passed against the appellant is liable to be interfered with. Lastly,
the Amicus Curiae has submitted, in the alternative, that taking into
consideration all the facts and circumstances of the case, the sentence of
imprisonment for life is harsh and the same clearly deserves consideration for
reduction/alteration.
12. Mr. Kaushik, learned Additional Public Prosecutor appearing for the
respondent State has submitted that the testimony of the injured witness was
clear and convincing. The testimony of the injured witness received
corroboration on material points from the testimony the eye-witness. The
testimony of these two witnesses are also consistent with the medical evidence.
Mr. Kaushik has further submitted that the appellant himself had admitted his
guilt during the examination under Section 313, CrPC. It was due to reasons
beyond control, the prosecution could not examine the other injured person,
Jeewan Machi Barla and for not examining the said injured person, the finding
as regards the appellant causing hurt on the said injured person cannot be
disturbed, in view of presence of other overwhelming evidence on record. Mere
non-examination of the other injured person cannot be held to be material vis-
à-vis the conviction and sentence passed against the appellant. Though the
defence has claimed that a number of contradictions had emerged on material
points after cross-examination of the I.O. [P.W.10], but, it cannot be given
credence as the alleged previous statements of the prosecution witnesses were
not duly proved when their testimony were recorded in the Trial Court. He has,
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thus, contended that the Judgment and Order of conviction and sentence does
not call for any interference and resultantly, the criminal appeal lacks merit.
13. We have duly considered the submissions of the learned counsel for the
parties and have also gone through the evidence/materials including the
testimony of the prosecution witnesses and the documentary evidence, available
in the case records of Sessions Case no. 10[M] of 2016, in original.
14. Among the witnesses examined by the prosecution, P.W.2 - Swanand
Oreya was the person who had sustained injuries. It is, therefore, apposite to
refer to his testimony, at first.
15. In his examination-in-chief, P.W.2 stated that he knew both the informant
and the appellant. As regards the incident, P.W.2 testified that at about 06-
00/06-30 p.m. on the date of the incident, he, Jeewan Machi Barla and Mansuk
Nag [P.W.7] were sitting in the Tongi Ghar, which was in the campus of Mansuk
Nag [P.W.7]. They were sitting by the side of a fire making fishing nets at that
time. He saw the appellant coming towards him with a Kalam katari [dao]. The
appellant coming near him, inflicted cut injuries on the left side of his head, just
above his left ear, and his neck and due to such assault, he fell down. P.W.2
stated that the appellant also inflicted cut injuries on his back, waist and rib
portion. P.W.2 stated that he remained unconscious for some time. On regarding
consciousness some time later, he managed to go to his house, which was
nearby. After he reached his house, he again lost consciousness and regained
senses later on when he was at Margherita Civil Hospital. He could learn from
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his family members that he was shifted from his house to Margherita Civil
Hospital to the AMCH, Dibrugarh through 108 Ambulance service for further
medical treatment. He remained completely bed ridden at the AMCH for about
eight days. After discharge from the AMCH, he returned back to his house.
P.W.2 stated that Jeewan Machi Barla, who was present at the time of
occurrence along with him, was also taken to the AMCH for treatment and he
noticed a cut injury on the forehead of Jeewan Machi Barla. Jeewan Machi Barla
told him about his injuries and the incident.
15.1. In his cross-examination, P.W.2 deposed that there was only one room
and only one door at the Tongi Ghar. It was partly dark and there was a fire.
The faces of the persons, sitting nearby, could be identified and the faces of
persons, who were far away, could not be identified. The fire was situated in the
middle and they were sitting around the fire. P.W.2 denied a suggestion that he
did not notice the person who inflicted dao blows to him due to partial darkness
in the room. P.W.2 stated that after sustaining injuries on his neck and head, he
lost consciousness and he did not see who inflicted the other blows. He
categorically denied a suggestion that he did not see the person who caused the
injuries on his neck and head. P.W.2 also denied a suggestion that they were
intoxicated at that time. He stated that he did not see to whom the appellant
inflicted injuries, other than him. He denied a suggestion that the appellant did
not inflict the cut injuries on him.
16. It was P.W.9, Dr. Gautam Kamal who examined P.W.2 at the AMCH,
Dibrugarh. In his evidence-in-chief, P.W.9 stated that on 28.10.2015, he was
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posted as Medical Officer in the Casualty Ward of the AMCH. On that day,
Swanand Oreya [P.W.2] was admitted at the AMCH by him. On examination of
Swanand Oreya [P.W.2], he found the following injuries :-
[i] A fresh pre-stitched wound size 8 cm extending from back of neck below the left
ear upto left cheek.
[ii] A fresh pre-stitched would of size 3 cm over mid part of back region.
[iii] A fresh laceration of size 2 x 1 x 2 cm over back of left arm.
[iv] 2 cm fresh pre-stitched wound over back and left shoulder.
[v] 5 cm fresh pre-stitched wound over left lower back.
[vi] 3 cm fresh pre-stitched wound over back of left shoulder.
P.W.9 testified that C.T. Scan of cervical spine showed minimally
displaced/fracture in the spinous process of cervix vertebrae. C.T. Scan of brain
showed shock tissue swelling over left thigh parietal region with old huge
granulomatous region in the left parietal low. He stated that the nature of injury
was grievous. The patient was discharged on 04.11.2015. P.W.9 exhibited the
Medical Report of P.W.2 as Ext.-4 and his signature therein as Ext.-4[1].
16.1. During cross-examination, P.W.9 stated that he did not receive Police
requisition. He had seen the reports of Margherita Civil Hospital as regards the
injured. P.W.9 further stated that since the wounds were pre-stitched, he could
not opine whether the injuries were caused by sharp weapon or not. P.W.9
further stated that he did not mention the age of the injuries. But, by fresh
injury, he meant an injury which was sustained within six hours. P.W.9 further
stated that Injury no. [iii] could be caused by falling; and Injury no. [iv] might
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be caused by accident with heavy force.
17. Since Swanand Oreya [P.W.2], the injured, deposed that at the time of
the incident, Mansuk Nag [P.W.7] was with him, we turn to the testimony of
P.W.7. P.W.7, Mansuk Nag in his examination-in-chief, recorded on 01.09.2015,
stated that he knew the appellant, Swanand Oreya [P.W.2] and Jeewan Machi
Barla. On the incident, P.W.7 stated that the incident took place at about 06-00
p.m. around 11 months back. P.W.7 testified that at that time, he was with
Swanand Oreya [P.W.2] and Jeewan Machi Barla at the Tongi Ghar. They were
sitting beside the fire taking warmth as it was a cold day. At that time, the
appellant came to the Tongi Ghar and without any reason, assaulted Swanand
Oreya [P.W.2] and Jeewan Machi Barla with a machete. Swanand Oreya [P.W.2]
sustained cut injuries on his neck, waist and back whereas Jeewan Machi Barla
sustained cut injury on his forehead. After the incident, both the victims ran to
their respective houses. Police personnel came subsequently and recorded his
statement.
17.1. During cross-examination, P.W.7 stated that except the flame, the Tongi
Ghar which had one door, was dark. P.W.7 denied a suggestion that the
appellant did not enter the Tongi Ghar and committed the offence. He also
denied the suggestions that he had deposed falsely and Police did not
interrogate him. P.W.7 reiterated that other than him, Swanand Oreya [P.W.2]
and Jeewan Machi Barla were present in the Tongi Ghar.
18. The prosecution witnesses - P.W.3, P.W.4 & P.W.5 - testified as regards
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events subsequent to the incident of assault on the injured, Swanand Oreya
[P.W.2]. P.W.3 and P.W.4 were wife and husband and their house was near to
the house of the injured, Swanand Oreya [P.W.2].
19. P.W.3 knew the appellant and the injured persons. In her evidence-in-
chief, P.W.3 stated that at around 06-00 p.m. on the date of the incident, she
was taking bath in her house. Then, she heard sound of cutting bamboo. After
few minutes, she heard a voice calling 'maa'. Then, she came out of her house
and saw Swanand Oreya [P.W.2] with blood stains on his body. P.W.3 stated that
when she asked Swanand Oreya [P.W.2], P.W.2 told him that the appellant had
inflicted the cut injuries. P.W.3 further stated that later on, the appellant was
apprehended by the Village Defence Party [VDP] and thereafter, the appellant
was handed over to Police at the Police Station. Subsequently, her statement
was recorded by Police.
19.1. During cross-examination, P.W.3 stated that she did not remember the
date of occurrence. P.W.3 stated that Swanand Oreya [P.W.2] was her next-door
neighbour and the house of the appellant was at a distance. P.W.3 stated that
there was good relationship with Swanand Oreya [P.W.2]. She stated that at
that time, her husband [P.W.4] was also present at the house. P.W.3 further
stated that she did not see the incident and denied a suggestion that she had
deposed falsely. P.W.3 did not accompany the VDP personnel to apprehend the
appellant and had no personal knowledge that the VDP had apprehended the
appellant. P.W.3 stated that she did not mention in her previous statement
before the Police how the appellant was apprehended by the VDP.
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20. P.W.4 also knew the appellant and the injured persons. In his evidence-
in-chief, P.W.4 testified that at about 06-30/07-00 p.m. on the date of the
incident, he was sitting near a fire in his house after taking a bath. Then he
heard a sound of bamboo cutting and after few minutes he heard a voice of
calling 'maa'. Then, his wife [P.W.3] came out of the house and after few
minutes, she returned home and told him that she saw Swanand Oreya [P.W.2]
lying in his courtyard with blood stains on his body.
20.1. When P.W.4 was cross-examined, he admitted that he did not see how the
incident took place.
21. P.W.5 also knew the appellant and the injured, Swanand Oreya [P.W.2].
In his testimony, P.W.5 stated that at around 06-30 p.m. on the date of the
incident, he was in a meeting in another village. At that time, he was informed
by one Paulus Bhengra in his mobile phone that the appellant assaulted
Swanand Oreya [P.W.2] with a machete and caused injuries to him. P.W.5 stated
that he immediately went to the house of Swanand Oreya [P.W.2] and going
there, he found Swanand Oreya [P.W.2] lying with injuries in front of the door of
his house. P.W.5 found that Swanand Oreya [P.W.2] was able to speak. When
asked by him, Swanand Oreya [P.W.2] told him that the appellant caused him
the injuries by assaulting him with a machete from his backside when he was
sitting at the Tongi Ghar with Mansuk Nag [P.W.7]. P.W.5 noticed one cut injury
each on the neck and hand of Swanand Oreya [P.W.2]. The injured, Swanand
Oreya [P.W.2] was sent to hospital by a 108 Ambulance by the villagers. Later
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on, the appellant was apprehended by Police personnel. The appellant was
thereafter, handed over to Police. P.W.5 deposed that the weapon used in
committing the offence was seized by the Police through a Seizure List and he
gave his signature therein as a witness. P.W.5 exhibited a Seizure List, Ext.-2
and his signature therein as Ext.-2[2]. P.W.5 stated that his statement was
recorded by Police.
21.1. During cross-examination, P.W.5 admitted that he had no personal
knowledge about the incident. He denied a suggestion that the injured did not
tell him that the appellant caused the injuries. As regards the machete seized,
P.W.5 stated that such type of machete was generally used to cut the jungle in
village areas and was, in general, found in every household. As he did not know
English language, he could not say what was written in English by the Police in
Ext.-2, Seizure List. P.W.5 further stated that he did not see the seized dao in
court during his testimony. P.W.5 further stated that the seized dao was shown
by Matiyas [P.W.6]. He denied suggestions that the Police took his signature on
a white paper and he along with the villagers apprehended the appellant to
hand him over to Police.
22. The prosecution witnesses - P.W.6 & P.W.8 - were husband and wife and
were inhabitants of the same village, Manmau Pathar, Bandar Tola, as like P.W.1,
P.W.2, P.W.3, P.W.4, P.W.5 & P.W.7. These two prosecution witnesses - P.W.6 &
P.W.8 - deposed about the conduct of the appellant after the incident.
23. P.W.6 knew the appellant and the injured, Swanand Oreya [P.W.2]. On
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the date of the incident, he returned to his house at around 10-00 p.m. Then,
his wife [P.W.8] told him that the appellant caused cut injuries on Swanand
Oreya [P.W.2]. P.W.6 testified that after committing the offence, the appellant
took shelter in their house. P.W.6 further stated that then, he took the machete
from the appellant and kept it inside their homestead under the bushes. When
Police personnel came, he handed over the machete to the Police personnel.
The Police then seized the machete by preparing a Seizure List, Ext.-2 and he
signed in the Seizure List as a witness and his statement was also recorded by
the Police. P.W.6 exhibited the Seizure List as Ext.-2 and his signature therein as
Ext.-2[3].
23.1. During cross-examination, P.W.6 admitted that he did not have any
personnel knowledge as to how Swanand Oreya [P.W.2] sustained the injuries.
At the time of the incident, he was neither at the P.O. nor at his house, as he
had gone for fishing. P.W.6 stated that he knew the appellant as the appellant
was his relative. He denied suggestions that the dao belonged to him and he
had concealed the dao. P.W.6 further stated that he was not shown the seized
dao in the court during his testimony. He denied a suggestion that the Police
obtained his signature on a blank paper. P.W.6 admitted that he did not know
English and for that reason, he could not say what was written by Police in
English in the Seizure List, Ext.-2.
24. P.W.8 who is the wife of P.W.6, knew both the injured persons, Swanand
Oreya [P.W.2] and Jeewan Machi Barla. As regards the incident, P.W.8 testified
that when the incident took place at around 06-00/06-30 p.m. about 11 months
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back, she was in their house cooking food. Then, the appellant came to their
house and shouted from outside the house saying that he had taught a lesson
to somebody. Thereafter, the appellant washed his hands and legs in their
tubewell and asked for water. The appellant also threatened to kill her. Because
of such threat, she did not come out of the house and instead, sent her
daughter to give water to the appellant. Thereafter, the appellant told her that
he would take meal in their house. When P.W.8 refused to give the appellant
any meal, then the appellant told her that he had caused injuries to Swanand
Oreya [P.W.2] and Jeewan Machi Barla. After saying so, the appellant left their
house. P.W.8 stated that the Police had recorded her statement.
24.1. During cross-examination, P.W.8 admitted that she did not witness how
the injured had sustained the injuries. P.W.8 disclosed that she was not
acquainted with the appellant. P.W.8 denied a suggestion that the appellant did
not shout outside their house saying that he had taught a lesson to somebody.
P.W.8 also denied a suggestion of the defence that the appellant did not come
to their house and hold that he caused injuries to Swanand Oreya [P.W.2] and
Jeewan Machi Barla. P.W.8 denied a suggestion that she had deposed falsely in
the court.
25. P.W.1 is a brother of Swanand Oreya [P.W.2] and he knew Jeewan Machi
Barla. In his examination-in-chief, P.W.1 who was the informant, deposed that at
about 06-30 p.m. on the date of the incident, he was in his house. His father
came to his house and told him that the appellant caused injuries to his brother,
Swanand Oreya [P.W.2] in the Tongi Ghar of Mansuk Nag [P.W.7]. He
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immediately rushed out and saw his brother with blood on his person. P.W.1
stated to have seen cut injuries on the back of the neck, waist and ribs of his
brother. At that time, the other injured person, Jeewan Machi Barla came to the
spot. P.W.1 stated that he also noticed cut injury on the forehead of Jeewan
Machi Barla. On being asked by him, Jeewan Machi Barla told him that the
appellant caused the injury to him. P.W.1 stated that thereafter, he called 108
Ambulance service and both the injured persons were taken to Margherita Civil
Hospital. As the doctors at Margherita Civil Hospital found the injuries serious,
both the injured persons were referred to the AMCH, Dibrugarh for better
treatment. P.W.1 stated that when asked by him, his brother - Swanand Oreya
[P.W.2] - told him that due to old grudge, the appellant caused the injuries to
him. P.W.1 stated that on the next day, he lodged the FIR which he exhibited as
Ext.-1. He identified his signature in Ext.-1 as Ext.-1[1]. P.W.1 stated that the
Police seized the machete which was used in committing the crime. P.W.1
exhibited the Seizure List as Ext.-2 and his signature therein as Ext.-2[1].
25.1. In cross-examination, P.W.1 stated that he did not witness the incident on
his own and he did not see the appellant at the P.O. He stated that his
statement was recorded by Police and denied a suggestion that the Police did
not record his statement. P.W.1 stated that the house of Mansuk Nag [P.W.7]
and the Tongi Ghar were in the same campus and the Tongi Ghar was adjacent
to the dwelling house of Mansuk Nag. Mansuk Nag [P.W.7] and his family
members were present at the time when he reached the P.O. He stated that
there was enmity prevailing between the appellant and his brother, Swanand
Oreya [P.W.2] as well as him. He denied suggestions of the defence that the
appellant did not assault the victims and due to prevailing old grudge, the case
Page No.# 20/38
was filed against the appellant. P.W.1 stated that the Seizure List was prepared
in his presence but he did not see the seized machete in the Court. P.W.1
further stated that the machete [dao] was recovered from under a flower bush
and Police had not recovered the machete [dao] in his presence. He had no
personal knowledge wherefrom the machete [dao] was recovered. He denied
the suggestion that the Police obtained his signature on a blank paper. P.W.1
further stated the FIR [Ext.-1] was written as per his version. P.W.1 also denied
a suggestion that the appellant did not commit the offence.
26. The Investigating Officer [I.O.] was examined as P.W.10. In his
examination-in-chief, P.W.10 stated about the manner in which the investigation
was carried out, as mentioned in Paragraph 4 hereinabove. In his testimony,
P.W.10 deposed that the appellant told him that the dao used in the incident
was kept concealed near a kokrajhora plant in the house premises of Matiyas
Hanse [P.W.6]. Accordingly, they went to the place along with the appellant and
recovered the dao. The recovered dao was thereafter, seized by him by
preparing a Seizure List, at the place wherefrom the dao was recovered, in
presence of witnesses. P.W.10 stated that thereafter, he brought the appellant
along with the seized article to the Police Station and recorded the statement of
the appellant. P.W.10 further deposed that after release of both the injured
persons from the AMCH, Dibrugrah on 15.12.2016, he recorded their
statements. P.W.10 exhibited the Seizure List, Ext.-2 and identified his signature
therein as Ext.-2[4]. P.W.10 also exhibited the Sketch Map as Ext.-5 and his
signature therein as Ext.-5[1], besides exhibiting the Charge-Sheet as Ext.-6.
Page No.# 21/38
26.1. During cross-examination, P.W.10 stated that he visited the P.O. on the
date of registration of the FIR. He stated that there was no bloodstain on the
seized dao and he did not send the seized dao to the FSL for examination. He
denied a suggestion that he could not ascertain whether the dao was used in
the commission of the offence. P.W.10 further stated that though he sent the
appellant for recording of his statement under Section 164, CrPC before the
court, but, as per his case diary, the appellant declined to confess before the
court.
26.2. The defence cross-examined P.W.10 as regards previous statements
recorded by P.W.10 of the prosecution witnesses - P.W.1, P.W.2, P.W.3, P.W.5,
P.W.6, P.W.7 & P.W.8. When so asked, P.W.10 mentioned that the said
prosecution witnesses did not state before him in their previous statements in
the manner, as questioned by the defence. This aspect would be adverted to in
a later part of this judgment.
27. From the testimony of P.W.2, Swanand Oreya, it has emerged that at
around 06-00/06-30 p.m. on the date of the incident, 27.10.2015, he along with
Jeewan Machi Barla and Mansuk Nag [P.W.7] was sitting in the Tongi Ghar. The
Tongi Ghar was in the campus of Mansuk Nag [P.W.7]. When they were sitting
by the side of a fire inside the Tongi Ghar, the appellant armed with a Kalam
katari [dao], climbed to the Tongi Ghar and, at first, inflicted cut injuries on the
left side of P.W.2's head and neck. As per the testimony of P.W.2, the appellant
also inflicted cut injuries on his back, waist and rib portions. P.W.2 testified that
on being so assaulted, he lost his senses for some time and he regained
Page No.# 22/38
consciousness some time later. On regaining consciousness, he managed to go
to his house, which was nearby. It has further emerged that there was only one
room with one door in the Tongi Ghar. At the time of the assault, it was partly
dark. It means that the room was not well-lit. P.W.2 testified that the faces of
the persons, sitting nearby, could be identified. According to P.W.2, it was after
sustaining injuries on his neck and head, he lost consciousness and therefore,
he could not say about the other blows.
28. It has also emerged from the evidence on record that after being
assaulted, P.W.2 Swanand Oreya [P.W.2] was, at first, taken to Margherita Civil
Hospital by ambulance. After providing initial treatment at Margherita Civil
Hospital, the doctors at Margherita Civil Hospital referred Swanand Oreya
[P.W.2] to AMCH, Dibrugrah for better treatment. It was at around 12-55 a.m.
on 28.10.2015, P.W.2 was admitted at the AMCH, Dibrugarh. As per the Medical
Report [Ext.-4], Swanand Oreya [P.W.2] was discharged from the AMCH on
04.11.2015. The Medical Officer [P.W.9] who examined Swanand Oreya [P.W.2],
had reported the injuries found on the person Swanand Oreya [P.W.2]. P.W.9
testified that the nature of the wound sustained by Swanand Oreya [P.W.2] on
the back of his neck below the left ear was grievous. The Medical Officer [P.W.9]
also found few other wounds on the person of Swanand Oreya [P.W.2], which
were described in the Medical Report [Ext.-4] and as mentioned in paragraph 16
above. The Medical Officer [P.W.9] testified that the injuries on the person of
Swanand Oreya [P.W.2] were sustained within six hours.
29. It is a settled proposition that where a witness to the occurrence has
Page No.# 23/38
himself been injured in the incident, the testimony of such a witness is generally
considered to be very reliable, as his testimony is considered to have come with
a built-in guarantee of his presence at the scene of the crime and an injured
witness is unlikely to spare his actual assailant in order to falsely implicate
someone else. The deposition of an injured witness is to be relied upon unless
there are strong grounds for rejection of his evidence on the basis of major
contradictions and discrepancies, for the reason that his presence at the scene
stands established in case it is proved that he suffered the injury/injuries during
the said incident.
30. It has been observed that the testimony of an injured witness generally
carries significant evidentiary weight. Regarding the legal principles how the
testimony of an injured eye-witness is to be appreciated, the Hon'ble Supreme
Court in Balu Sudam Khalde and another vs. The State of Maharashtra,
[2023] 6 SCR 851, has observed in the following manner :-
26. When the evidence of an injured eye-witness is to be appreciated, the under-noted
legal principles enunciated by the Courts are required to be kept in mind :
[a] The presence of an injured-witness at the time and place of the occurrence cannot be
doubted unless there are material contradictions in his depositions. [b] Unless, it is
otherwise established by the evidence, it must be believed that an injured witness would
not allow the real culprits to escape and falsely implicate the accused.
[c] The evidence of injured witness has greater evidentiary value and unless compelling
reasons exist, their statements are not to be discarded lightly.
[d] The evidence of injured witness cannot be doubted on account of some embellishment
in natural conduct or minor contradictions.
Page No.# 24/38
[e] If there be any exaggeration or immaterial embellishments in the evidence of an injured
witness, then such contradiction, exaggeration or embellishment should be discarded from
the evidence of injured, but not the whole evidence.
[f] The broad substratum of the prosecution version must be taken into consideration and
discrepancies which normally creep due to loss of memory with passage of time should be
discarded.
27. In assessing the value of the evidence of the eyewitnesses, two principal
considerations are whether, in the circumstances of the case, it is possible to believe their
presence at the scene of occurrence or in such situations as would make it possible for
them to witness the facts deposed to by them and secondly, whether there is anything
inherently improbable or unreliable in their evidence. In respect of both these
considerations, circumstances either elicited from those witnesses themselves or
established by other evidence tending to improbabilise their presence or to discredit the
veracity of their statements, will have a bearing upon the value which a Court would attach
to their evidence. Although in cases where the plea of the accused is a mere denial, the
evidence of the prosecution witnesses has to be examined on its own merits, where the
accused raise a definite plea or put forward a positive case which is inconsistent with that
of the prosecution, the nature of such plea or case and the probabilities in respect of it will
also have to be taken into account while assessing the value of the prosecution evidence.
31. It has further emerged from the evidence on record that the Tongi Ghar
where the incident of assault had occurred, was in the campus of Mansuk Nag
[P.W.7] and the dwelling house of Mansuk Nag [P.W.7] was near to the Tongi
Ghar. Mansuk Nag [P.W.7] was an eye-witness to the incident of assault on
Swanand Oreya [P.W.2] and Jeewan Machi Barla. Mansuk Nag [P.W.7] testified
to the effect that at around 06-00 p.m. on the date of the incident, he was with
Swanand Oreya [P.W.2] and Jeewan Machi Barla. The testimony of Mansuk Nag
[P.W.7] lent corroboration that at the time of the incident, he along with
Page No.# 25/38
Swanand Oreya [P.W.2] and Jeewan Machil Barla was at the Tongi Ghar sitting
beside the fire. It was at that time, the appellant came to the Tongi Ghar and
assaulted Swanand Oreya [P.W.2] and Jeewan Machi Barla with a machete
[dao]. That the injured person, Swanand Oreya [P.W.2] sustained cut injuries on
his neck, waist and back received corroboration from the testimony of Mansuk
Nag [P.W.7]. The testimony of Mansuk Nag [P.W.7] as regards the injuries
sustained by Swanand Oreya [P.W.2] was also consistent with the testimony of
the Medical Officer [P.W.9] and the Medical Report [Ext.-4].
32. There is nothing to disbelieve the testimony of Swanand Oreya [P.W.2]
and Mansuk Nag [P.W.7] regarding their presence at around 06-00/06-30 p.m.
inside the Tongi Ghar on the date of the incident. It is worthwhile to iterate that
the Tongi Ghar was inside the campus of Mansuk Nag [P.W.7]. As the Tongi
Ghar was near to the house of Mansuk Nag [P.W.7] and inside his own campus,
the presence of Mansuk Nag [P.W.7] inside the Tongi Ghar at the time of the
incident is found to be natural. The defence had failed to elicit anything from
Swanand Oreya [P.W.2] and Mansuk Nag [P.W.7] to dislodge their testimony
about their presence in the Tongi Ghar at the time of the incident in any manner
whatsoever.
33. It is also not in dispute that the house of the prosecution witnesses,
P.W.3 & P.W.4 was near to the house of Swanand Oreya [P.W.2]. P.W.3 had lent
corroboration to the testimony of Swanand Oreya [P.W.2] on the point that after
being assaulted, Swanand Oreya [P.W.2] managed to reach his house from the
Tongi Ghar with injuries on his person. P.W.5 who reached the house of
Page No.# 26/38
Swanand Oreya [P.W.2] immediately on receiving the news of assault, had found
Swanand Oreya [P.W.2] with injuries on his person. P.W.5 noticed cut injuries on
the neck and hand of Swanand Oreya [P.W.2]. P.W.1 and P.W.5 had testified that
Swanand Oreya [P.W.2] was taken first to Margherita Civil Hospital by a 108
Ambulance and thereafter, to the AMCH at Dibrugarh. At the AMCH, Dibrugarh,
Swanand Oreya [P.W.2] was admitted at around 12-55 a.m. on 28.10.2015. The
FIR was thereafter, lodged on 28.10.2015 by P.W.1.
34. From the above discussion, it has been clearly established that it was at
round 06-00/06-30 p.m. on 27.10.2015, the incident took place in the Tongi
Ghar which was within the house campus of Mansuk Nag [P.W.7] and in the said
incident, the appellant caused injuries on Swanand Oreya [P.W.2]. The incident
of assault was witnessed by Mansuk Nag [P.W.7]. The appellant was well known
to both Swanand Oreya [P.W.2] and Mansuk Nag [P.W.7]. It is difficult to discard
that it could not have been possible for them to identify the appellant as the
assailant in the light of the fire inside the Tongi Ghar, even if it was not well-lit.
If a person is well known for a long time, more particularly, when they are
inhabitants of the same locality, it is not difficult to identify the person if the
person is the assailant, even if any assault takes place inside a not well-lit room.
Therefore, there is hardly anything to disbelieve the testimony of Swanand
Oreya [P.W.2] and Mansuk Nag [P.W.7], which had received corroboration from
the medical evidence also.
35. P.W.6, in his testimony, stated that the appellant was his relative. As per
P.W.6, the appellant took shelter in their house after the occurrence of the
Page No.# 27/38
incident. P.W.8 who was the wife of P.W.6, also deposed that on the date of the
incident, the appellant came to their house. P.W.6 deposed that he took the
machete [dao] from the appellant and kept the machete [dao] inside their
homestead under the bushes. In his testimony, P.W.6 stated that when Police
personnel came, he handed over the machete [dao] to the Police personnel.
The I.O. [P.W.10] deposed that the appellant told him that the machete [dao]
used in the incident was kept concealed inside the house of P.W.6 and
accordingly, they went to the place along with the appellant and recovered the
machete [dao]. The I.O [P.W.10] stated to have prepared the Seizure List, Ext.-2
at the premises of P.W.6 to seize the machete [dao] in presence of P.W.1 and
P.W.6.
36. The learned Amicus Curiae has made a submission that the defence had
brought a number of contradictions by cross-examining the I.O. [P.W.10]. It is,
therefore, necessary to find out whether defence was successful to bring out
any contradiction on record, as submitted.
37. During cross-examination, the I.O. [P.W.10] stated that P.W.1 did not
state before him that the injured person, Swanand Oreya [P.W.2] stated before
P.W.1 that the appellant assaulted him due to old grudge. P.W.10 also stated
that P.W.2 did not state before him that P.W.2 became unconscious after he was
assaulted by the appellant and that P.W.1 met Jeewan Machi Barla at the AMCH,
Dibrugarh and saw injury on his forehead. The I.O. [P.W.10] also stated that
P.W.3 did not state before him that P.W.3 saw cut injury on the forehead of
Jeewan Machi Barla. P.W.10 also stated that P.W.5 did not state before him that
Page No.# 28/38
Paulus Bhengra informed him over phone that the appellant had caused injury
to the victim with a dao. P.W.10 further stated that P.W.7 did not state before
him that he saw injuries on the neck and chest of P.W.2 and the injury on the
forehead of Jeewan Machi Barla.
38. In the case in hand, it is noticed that during cross-examination, attention
of none of the prosecution witnesses - P.W.1, P.W.2, P.W.3, P.W.4, P.W.5, P.W.6,
P.W.7 & P.W.8 - was drawn to any part of their previous statements recorded
under Section 161, CrPC either to admit or deny that part. As no attention was
drawn and none of them had admitted anything, no contradiction was proved.
Secondly, no parts of the previous statements of these prosecution witnesses
were marked, during their cross-examination, for the purpose of confronting
them to prove any contradiction. In absence of the fact that the previous
statements of these prosecution witnesses were not marked for reading out to
the Investigating Officer [I.O.], that is, P.W.10, the previous statements
recorded under Section 161, CrPC of these prosecution witnesses cannot be
used suo moto by the Court to record any contradictions. Thus, the submission
of the learned Amicus Curiae that the defence was able to bring certain
contradictions has no merit.
39. The purpose behind examination of an accused under Section 313, CrPC
is to provide the accused an opportunity to explain the adverse circumstances
which have emerged against him during the course of the trial, if he chooses to
do so. The statutory provision is based on the rule of natural justice for an
accused, who is to be made aware of the adverse circumstances being adduced
Page No.# 29/38
against him so that he can give a proper explanation. There is a long line of
decisions as regards objects and purposes to be served from the examination of
an accused under Section 313, CrPC and how the explanation provided by the
accused under Section 313, CrPC is to be considered.
40. A three-Judge Bench decision of the Hon'ble Supreme Court in State of
U.P. vs. Lakhmi, [1998] 4 SCC 336, has extensively dealt with the aspect of
consideration of a statement under Section 313, CrPC. It has been observed as
under :-
8. As a legal proposition we cannot agree with the High Court that statement of an
accused recorded under Section 313 of the Code does not deserve any value or utility if it
contains inculpatory admissions. The need of law for examining the accused with
reference to incriminating circumstances appearing against him in prosecution evidence
is not for observance of a ritual in a trial, nor is it a mere formality. It has a salutary
purpose. It enables the court to be apprised of what the indicted person has to say about
the circumstances pitted against him by the prosecution. Answers to the questions may
sometimes be flat denial or outright repudiation of those circumstances. In certain cases
the accused would offer some explanations to incriminative circumstances. In very rare
instances the accused may even admit or own incriminating circumstances adduced
against him, perhaps for the purpose of adopting legally recognised defences. In all such
cases the court gets the advantage of knowing his version about those aspects and it
helps the court to effectively appreciate and evaluate the evidence in the case. If an
accused admits any incriminating circumstance appearing in evidence against him there
is no warrant that those admissions should altogether be ignored merely on the ground
that such admissions were advanced as a defence strategy.
Page No.# 30/38
9. Sub-section [4] of Section 313 of the Code contains necessary support to the legal
position that answers given by the accused during such examination are intended to be
considered by the court. The words 'may be taken into consideration in such enquiry or
trial' in sub-section [4] would amount to a legislative guideline for the court to give due
weight to such answers, though it does not mean that such answers could be made the
sole basis of any finding.
10. Time and again, this Court has pointed out that such answers of the accused can
well be taken into consideration in deciding whether the prosecution evidence can be
relied on, and whether the accused is liable to be convicted of the offences charged
against him.
41. Following the decision in Lakhmi [supra] and a number of other
decisions, the Hon'ble Supreme Court in Premchand vs. State of
Maharashtra, [2023] 5 SCC 522, has observed in the following manner :-
15. What follows from these authorities may briefly be summarised thus :
15.1. Section 313 CrPC [clause (b) of sub-section (1)] is a valuable safeguard in the trial
process for the accused to establish his innocence.
15.2. Section 313, which is intended to ensure a direct dialogue between the court and the
accused, casts a mandatory duty on the court to question the accused generally on the
case for the purpose of enabling him to personally explain any circumstances appearing in
the evidence against him.
15.3. When questioned, the accused may not admit his involvement at all and choose to
flatly deny or outrightly repudiate whatever is put to him by the court.
15.4. The accused may even admit or own incriminating circumstances adduced against
him to adopt legally recognised defences.
15.5. An accused can make a statement without fear of being cross-examined by the
prosecution or the latter having any right to cross-examine him.
Page No.# 31/38
15.6. The explanations that an accused may furnish cannot be considered in isolation but
have to be considered in conjunction with the evidence adduced by the prosecution and,
therefore, no conviction can be premised solely on the basis of the Section 313
statement[s].
15.7. Statements of the accused in course of examination under Section 313, since not on
oath, do not constitute evidence under Section 3 of the Evidence Act, yet, the answers
given are relevant for finding the truth and examining the veracity of the prosecution case.
15.8. Statement[s] of the accused cannot be dissected to rely on the inculpatory part and
ignore the exculpatory part and has/have to be read in the whole, inter alia, to test the
authenticity of the exculpatory nature of admission.
15.9. If the accused takes a defence and proffers any alternate version of events or
interpretation, the court has to carefully analyse and consider his statements.
15.10. Any failure to consider the accused's explanation of incriminating circumstances, in
a given case, may vitiate the trial and/or endanger the conviction.
42. We now turn to the explanations/answers given by the appellant to the
Trial Court when he was examined under the Section 313, CrPC. When the
appellant was asked that P.W.1 deposed inter-alia that P.W.1 heard from his
father that the appellant had assaulted his brother, P.W.2 with cut injuries on the
neck, waist and ribs and also, assaulted Jeewan Machi Barla, the appellant
admitted about the assault stating that at first, the appellant persuaded P.W.2.
As P.W.2 did not listen to the appellant, the appellant assaulted P.W.2. The
appellant stated that he assumed the object [the weapon in his hands] to be a
lathi [stick], but later on, he found that it was a dao. When the appellant was
told that P.W.2, one of the two injured persons, testified that at around 06-
00/06-30 p.m. on the date of the incident, P.W.2 was with P.W.7 and Jeewan
Machi Barla in the Tongi Ghar of P.W.7 and at that time, the appellant proceeded
Page No.# 32/38
towards P.W.2 and dealt blows with a Kalam dao on his head and neck and also
dealt cut blows on his back, waist and ribs. In reply, the appellant stated that
P.W.2 had told the truth. Similarly, in answer to the adverse circumstances
appearing from the testimony of P.W.3, P.W.5, P.W.7 & P.W.8 the appellant
admitted about the adverse circumstances.
42.1. When the appellant was asked as to whether he had anything to say
regarding the incident, the appellant while declining to adduce any evidence in
his defence, had told the Court in the following words :-
Mansuk Nag told me to kill Swanand. Jeewan Machi Barla arranged girls for Swanand
who committed bad act with the girls. Mansuk, Swanand and and Barla altogether were
cutting bhang and ganja. Round 11-00 p.m. when I was in the house of Mitiyas, Barla and
Swanand came to assault me. On the following day, I went to the house of Mansuk and
on being asked, he told me that they [Swanand and Jeewan Machi Barla] were sitting in
the tongi ghar situated behind his house and he also asked me to kill them. Only for that
reason, I assaulted them. I have no witness except Mansuk.
43. It is true that the statement of an accused given in examination under
Section 313, CrPC cannot be made as the sole basis of conviction as it is not a
substantive piece of evidence. The statement is not a substantive piece of
evidence as it is not recorded under oath and does not fall within the ambit of
the definition of 'evidence', as provided in Section 3 of the Evidence Act, 1872.
At the same time, any inculpatory part of the statement of the accused may be
used to lend credence to the case of the prosecution. In other words, if the
answers given by the accused during his examination under Section 313, CrPC
Page No.# 33/38
contain inculpatory admissions, then such admissions are not to be ignored and
the court can utilize such inculpatory admissions to exclude the possibility of the
accused being implicated falsely with the accusation and to use it to draw a
conclusion as regards its finding of guilt. It is, however, always to be kept in
mind that the burden to prove the case is always on the prosecution unless the
law provides otherwise.
44. Turning back to the facts of the case, it is already found that the
prosecution has been able to establish the case of assault on Swanand Oreya
[P.W.2] by the appellant by a dao on the basis of credible and cogent evidence
and as a result of the assault, Swanand Oreya [P.W.2] sustained injuries on his
person, amounting to grievous hurt. As Swanand Oreya [P.W.2] sustained
grievous hurt and it was also established that the injuries was inflicted by the
appellant voluntarily by a machete [dao], which falls in the category of
dangerous weapon, the prosecution case as regards the offence under Section
326, IPC by the appellant is found to be well established. Apart from grievous
hurt, the appellant also caused a number of other injuries amounting to hurt on
the injured, that is, P.W.2. Therefore, the appellant has rightly been convicted
also under Section 324, IPC. The inculpatory admission on the part of the
appellant had lent further weight to make the prosecution case beyond all
doubts.
45. In his statement given during the examination under Section 313 of the
Code, the appellant had mentioned about an incident which occurred one day
prior to the date of the incident by stating that the two injured persons,
Page No.# 34/38
Swanand Oreya [P.W.2] and Jeevan Machi Barla came to assault him. The
appellant stated that the said incident had triggered him to commit the act of
assault on the following day. The informant, P.W.1 mentioned, during his cross-
examination, that there was bad relation and enmity between the appellant and
Swanand Oreya [P.W.2]. Swanand Oreya [P.W.2] had denied a suggestion that
he had no previous enmity with the appellant. From the above, it could be
gathered that the relationship between the appellant and Swanand Oreya
[P.W.2] was not cordial and there was previous enmity. Presence of animosity
can become a motive to prompt a person to commit an offence. Motive, if
established from the circumstances or by way of admission either by the
accused or by the victim, is a satisfactory circumstance for corroboration.
46. Though the appellant made a mention that it was Mansuk Nag [P.W.7]
who had instigated and told the appellant to kill Swanand Oreya [P.W.2], there
was not even a suggestion by the defence to the prosecution witnesses, more
particularly, to Mansuk Nag [P.W.7] to that effect when the prosecution
witnesses were examined. From the trend of cross-examination of the
prosecution witnesses by the defence, it cannot even be inferred that there was
instigation and direction to the appellant from Mansuk Nag [P.W.7] to kill
Swanand Oreya [P.W.2]. Therefore, such mention of instigation was clearly an
afterthought and is to be discarded outrightly.
47. Section 307 of the IPC has defined the offence of attempt to murder. As
per Section 307, IPC, whoever does any act with such intention or knowledge,
and under such circumstances that, if he by that act caused death, he would be
Page No.# 35/38
guilty of murder, shall be punished with imprisonment of either description for a
term which may extend to ten years, and shall also be liable to fine; and if hurt
is caused to any person by such act, the offender shall be liable either to
imprisonment for life, or to such punishment as is hereinbefore mentioned.
48. Section 319 of the IPC has defined 'hurt' and Section 320 of the IPC has
defined 'grievous hurt'. Whoever causes bodily pain, disease or infirmity to any
person is said to cause 'hurt'. In Section 320, IPC, eight kinds of hurt only are
designated as 'grievous'. Thus, all acts of grievous hurt would include the hurt.
However, all acts of hurt are not grievous hurt. Section 307, IPC has mentioned
about only 'hurt'. It has not made any distinction between 'hurt' and 'grievous
hurt'. Therefore, causing grievous hurt or life threatening injury is not necessary
to return a finding of guilt under Section 307, IPC.
49. To reach a finding for conviction under the second part of Section 307,
IPC, it is required to see, at first, whether the act had resulted into hurt of
another person and whether the act, irrespective of the result, was done with
the intention or knowledge, and under the circumstances, if he by that act
caused death, he would be guilty of murder. A fine distinction exists between
intention and knowledge and it is crucial, for the purpose of sentencing under
Section 307 of the IPC. Intention is a conscious and deliberate desire to bring
about a particular result. Knowledge means one's awareness that his act is likely
to bring about a specific result, without necessarily desiring it. Intention is a
higher mental state than knowledge. To find out about the intention of the
accused, the factors like the actual injury, the part of the body where the injury
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was inflicted, the nature of the weapon used, surrounding circumstances,
presence of motive, previous enmity, etc., although not exhaustive, are relevant.
50. A person commits an offence under Section 307, IPC when he has an
intention to commit murder and in pursuance of that intention, does an act
towards its commission irrespective of the fact whether that act is the
penultimate act or not. The intention to commit an offence is different from the
intention or knowledge mentioned in Section 300, IPC. To bring in Section 307,
IPC, the act must be done with the intent or knowledge requisite for the
commission of the offence of murder. It has emerged from the evidence on
record that the appellant had committed the act of assault with a dao, which
falls in the category of dangerous weapon. The testimony of Swanand Oreya
[P.W.2] is to the effect that he lost his senses for sometime after sustaining
injuries on his neck and head and after regaining consciousness, he managed to
reach his house. From the medical evidence, it can be seen that Swanand Oreya
[P.W.2] sustained an injury from the back part of his neck below the left ear
upto left cheek. If Swanand Oreya [P.W.2] had lost consciousness in the manner
be testified, the appellant had the opportunity to cause more serious assaults on
the person of Swanand Oreya [P.W.2]. The Medical Officer [P.W.9] had indicated
that two of the injuries could be caused by falling and by accident with heavy
force. At the same time, the fact that the injury was caused by the appellant by
the sharp side of the dao is to be taken into account. The other injuries were
not grievous in nature. Taking into account the act of assault and all the
circumstances preceding, attending and succeeding preceding that act, though
knowledge of the appellant regarding the fact that death would have been
resulted from his act can be readily inferred, it is not possible to infer intention
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on the part of the appellant.
51. Sentencing is an important task in the matters of crime. A number of
factors are required to be taken into consideration for the purpose of awarding
appropriate sentence to a convict. The appellant by his admission at the stage
of examination under Section 313, CrPC had admitted the act of assault. Such
admission on the part of the appellant indicative of his remorsefulness. There is
no material to indicate that the appellant has been convicted for committing any
offence earlier. The appellant is a married man and has children and at the time
of conviction and sentence, he was around fifty-one years. Therefore, taking all
the facts and circumstances into consideration, we are of the considered view
that interest of justice will be subserved if maintaining the conviction under
Section 326, IPC and Section 307, IPC passed by the learned Trial Court, the
sentences imposed under the said offences are modified and reduced to seven
years each respectively. The fine amounts imposed under Section 326, IPC and
Section 307, IPC are to be maintained along with the default stipulations. The
conviction and sentence passed under Section 324, IPC for causing hurt to
Swarand Oreya [P.W.2] is not to be disturbed. It is ordered accordingly. All the
sentences are to run concurrently.
52. The appellant has also been convicted under Section 324, IPC for
voluntarily causing hurt to Jeewan Machi Barla. For the said offence, the
appellant has been sentenced to undergo rigorous imprisonment for two years.
Conspicuously, the prosecution side did not examine Jeewan Machi Barla as a
prosecution witness during the trial. Though medical evidence and other
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evidence regarding causing hurt to Jeewan Machi Barla were laid during the
trial, Jeewan Machi Barla as the injured person was the most material witness
for the charge framed under Section 324, IPC against the appellant for causing
hurt to Jeewan Machi Barla. It is not known from the materials why the
prosecution chose not to examine Jeewan Machi Barla. Be that as it may, the
learned Trial Court had ordered all the sentences including the one under
Section 324 of the IPC, to run concurrently. As the appellant is undergoing the
sentences since the date of his conviction, we find no necessity to dilate further,
at this stage, in respect of such conviction and sentence.
53. As a result, the criminal appeal stands partly allowed to the extent
indicated above.
54. Before parting with the record, we wish to place our appreciation on
record as regards the service rendered by Mr. M. Dutta, learned Amicus Curiae
appearing for the appellant and direct the Registry to make available to him just
remuneration as per the notified fee structure applicable to the Amicus Curiae.
55. The records of the Trial Court are to be sent back forthwith.
JUDGE JUDGE
Comparing Assistant
