[Cites 11, Cited by 0]
Gauhati High Court
Page No.# 1/24 vs State Of Assam And Anr on 9 January, 2026
Page No.# 1/24
GAHC010231932018
2026:GAU-AS:439
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.A./324/2018
ALI HUSSAIN AND 2 ORS
S/O LATE REHMAN ALI
RESIDENT OF VILLAGE RANGAPANI PART -11, PO AND PS SAPARGRAM,
DIST DHUBRI, ASSAM
2: RAJIUL HAQUE
S/O LATE REHMAN ALI
RESIDENT OF VILLAGE RANGAPANI PART -11
PO AND PS SAPARGRAM
DIST DHUBRI
ASSAM
3: FAKARUDDIN
S/O LATE ALI HUSSAIN
RESIDENT OF VILLAGE RANGAPANI PART -11
PO AND PS SAPARGRAM
DIST DHUBRI
ASSA
VERSUS
STATE OF ASSAM AND ANR.
REPRESENTED BY PP ASSAM
2:NAZRUL HAQUE
S/O- MD. ABDUL AZIZ
R/O- MAUZA RANGAPANI PT-I
P.O. AND P.S.- SAPATGRAM
DISTRICT- DHUBRI
ASSAM
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Advocate for the Petitioner : Mr. P. Bora.
Advocate for the Respondent : Mr. S. Bikash R-2.
Ms. S.H. Bora, Addl. P.P., Assam.
:::BEFORE:::
HON'BLE MR. JUSTICE SANJEEV KUMAR SHARMA
Date on which judgment is reserved : 27.11.2025.
Date of pronouncement of judgment : 09.01.2026
Whether the pronouncement is of the : No.
operative part of the judgment ?
Whether the full judgment has been : Yes
pronounced?
JUDGMENT & ORDER (CAV)
Heard Mr. P. Bora, learned counsel for the appellants. Also heard Mr.S. Bikash,
learned counsel for respondent No. 2 and Ms. S.H. Bora, learned Additional Public
Prosecutor for the State.
2. This appeal is directed against the Judgment and Order dated 29.09.2018
passed by the learned Addl. Session Judge, Bilasipara in Sessions Case No. 222/2011
convicting the appellants/accused u/s 323/324/325/34 IPC and sentencing the
appellants/accused persons to pay fine of Rs. 500/- each i/d 1 month simple
imprisonment u/s 323 IPC and further sentenced to undergo 1 year RI and to pay a
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fine of Rs. 2000/- each i/d 2 months SI u/s 324 IPC and further sentenced to undergo
2 years RI and to pay a fine of Rs. 10,000/- each i/d 6 months SI u/s 325 IPC.
3. That the prosecution case in brief is that on 04.11.2008 at about 6 am
informant Najrul Haque's brother-in-law Jabrul Haque went near a pond at the
backside of his house to answer nature's call. At about that time, all the accused
persons mentioned in the ejahar, namely, Ali Hussain, Rajiul Haque, Fakaruddin,
Fatema Bibi, Monowara Bibi @ Monera Bibi and Nur Jahan armed with deadly
weapons such as khukri, dao, stick etc. attacked Jabrul Haque and caused grievous
injury at various parts of his body and also broke the hand and teeth of Jabrul Haque.
Hearing the hue and cry, when wife and daughter of Jabrul Haque went to the place
of occurrence, the accused persons named in the ejahar also attacked them and
caused injuries to them. Thereafter, the injured persons were taken to the Sapatgram
hospital and from there they were taken to Dhubri Civil Hospital.
4. That a formal ejahar dated 05.11.2008 was lodged by Najrul Haque which was
registered and numbered as Bilasipara P.S. Case No. 288/08 u/s 147/149/326/307 of
the IPC. On receipt of the said ejahar, the police swung into action and after
completion of the Investigation, I.O submitted charge sheet against all the accused
persons whose names have been mentioned in the ejahar u/s
147/149/323/324/325/307 of the IPC. On receipt of the charge sheet, the then
learned SDJM (M) Bilasipara took cognizance and after furnishing necessary copies to
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the accused persons committed the case before learned Sessions Judge, Dhubri for
trial and Ld. Sessions Judge, Dhubri made over the case to the Court of learned
Assistant Sessions Judge, Dhubri. Then the learned Assistant Sessions Judge, Dhubri
after hearing the learned counsel for both the sides and perusal of the material on
record framed charges u/s 323/324/325/307/149 of IPC against all the accused
persons named in the ejahar and when charges were read and explained to them,
they pleaded not guilty and claimed to be tried.
5. During the trial, prosecution examined as many as 10 witnesses and after
closure of prosecution evidence the statements of all the accused persons were
recorded under Section 313 CrPC, wherein the accused persons denied the charges
against them, but declined to adduce any evidence. Upon conclusion of the trial and
after hearing, the learned Trial Court convicted the present appellants as aforesaid.
Hence this appeal.
6. The evidence may be discussed first.
PW-1, Najrul Hoque is the informant of the case. His evidence is that incident
took place on 04.11.2008 at about 05:00 am. Victim Jabrul Hoque is his brother in
law, Ijjatan Bibi is his sister and accused persons reside in their same locality. He
deposed that on the day of incident in the early morning at about 05.00 am, his
brother in law Jabrul Hoque went to his pond for fishing and his brother-in-law Jabrul
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was accompanied by his wife and daughter. He deposed after sometimes, he heard
hue and cry at the said place. He rushed to the place of occurrence and saw accused
that persons were confining his brother-in-law and accused persons assaulted him on
his body and head by sharp weapons and stick and as a result his brother in law
received grievous injuries on his head and body and blood was oozing from the body
of his brother in law. He deposed when his sister Ijjatan along with her daughter came
forward to save Jabrul, accused persons also assaulted them by sharp weapons and
they also sustained grievous injuries on their bodies. He deposed many people
gathered at the place of occurrence and he could not resist the accused persons as
accused persons possessed sharp weapons and accused persons ran away as other
people gathered at the place of occurrence. Thereafter, he along with others sent the
victim to the Sapatgram hospital and from there the victim was referred to Dhubri Civil
Hospital and thereafter he lodged ejahar vide Ext-1 wherein he put his signature vide
Ext 1(1). He further deposed he had witnessed the entire incident and the injury
caused by accused persons to victim is serious in nature. In cross examination, he
stated though he did not write the ejahar, the ejahar was explained to him. He stated
at the time of incident, he was present at home. He along with Iman All, Abdul
Matleb, Ibrahim All and Shahjamal who are neighbors of Jabrul Hoque went to the
place of occurrence just after hearing the incident. He stated when he arrived at the
place of occurrence, he found Jabrul Hoque lying on the ground in seriously injured
condition. He stated that accused persons were present at the place of occurrence
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when he arrived there and he saw sharp weapons in the hand of accused persons. He
stated there were several court cases between All Hussain and victim and some civil
cases are also pending between Ali Hussain and victim Jabrul. He denied he did not
state before police that he along with Iman All, Abdul Matleb, Ibrahim Ali and
Shahjamal went to the place of occurrence just after hearing hue and cry or that he
did not go to the place of occurrence or that accused persons did not assault the wife
of Jabrul and his daughter; or that he did not state before police that accused persons
had assaulted on the head of Jabrul.
7. PW-2, Jabrul Hoque is the one of the victims of this case. His evidence is that on
the day of incident in the morning hour, accused Rajiul Hoque and Nur Hussain were
illegally fishing in his pond which is situated near his house. Accordingly, he asked
them not to fish in his pond but accused persons Rajiul Hoque and Nur Hussain did
not listen to him and started quarrelling with him. Thereafter both the accused
persons called their family members and all the accused persons came along with
sharp weapons and stick and assaulted his wife, his daughter as well as him. He
deposed all the accused persons possessed sharp weapons like dagger, iron rod, stick,
etc. He deposed that firstly accused Ali Hussain assaulted his wife by stick and sharp
weapons and thereafter, all other accused persons assaulted his wife. As a result, his
wife fell down on ground and she sustained serious injury on her elbow. He deposed
that the accused persons also assaulted his daughter by stick and sharp weapons on
her shoulder as well as on her head and for which his daughter still could not recover
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from her injuries. Thereafter, accused persons hit him brutally Firstly accused Ali
Hussain hit on him on his backside and as a result he fell down. Thereafter, all other
accused persons had hit and assaulted on his hands, head and chest. He sustained
penetrating injuries on his fore head. He further deposed that accused persons had
broken his hands, legs and he sustained multiple fracture injury on his body and there
was profuse bleeding from his body as well body of his wife and his daughter. He
deposed that accused persons left the place after assaulting them. Many people
gathered after the incident. Village people had taken them to the hospital. He deposed
that he was treated at Dhubri Civil Hospital for more than 20 days and his wife and
daughter were also treated at Dhubri Civil Hospital. He deposed after the incident his
brother in law lodged the case before Bilasipara PS and he could not lodge the ejahar
as he was admitted in the hospital. He deposed police asked him about the incident
after few days of his treatment and accused Ali Hussain, Rajiul Hoque and Nur
Hussain threatened him not to give evidence. In cross examination, he stated he could
not recollect the day of incident but incident occurred in the early morning at about
06:00 am. He stated he lodged civil cases against the accused persons and accused
persons also lodged civil cases against him and his family members. He stated that
accused persons also lodged 4 criminal cases against him but he was acquitted all the
said cases. He stated he regained proper sense after 3 days of incident and he met
the complainant after 15 days of the incident at the hospital. He stated he could not
explain the complainant about the occurrence of the incident at the hospital as he
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could not speak properly and his wife and daughter also could not explain about the
incident to the complainant as they were also under treatment. He stated his wife and
daughter went to the place of occurrence before his arrival and he cannot say who
had rescued him from the incident as at that time he was at semi-conscious state. He
stated the land, house and pond were belonging to him and there was no other house
near the pond. He denied he was not admitted into the hospital for about one month
or that he did not state before police that his teeth were broken in the incident or that
he did not state before police that accused persons were illegally fishing in his pond
just before occurrence of the incident or that the accused persons did not come to his
premises along with sharp weapons to assault him and his wife and daughter.
8. Evidence of PW-3, Iman Ali is that he knows informant and accused persons. He
deposed on the day of incident, early in the morning, he went to the paddy field. After
arriving at the paddy field, he saw scuffle between accused Rajlul and victim Jabirul.
Jabrul fell down and sustained injury. Thereafter, he along with Aminul brought victim
to his house and then took him to the hospital. He further deposed that Jabrul
sustained head injury and he saw blood oozing out from the injured portion of the
victim. In cross examination, he stated when he was at paddy field he saw accused
Rajiul assaulting Jabrul and victim Jabrul fell down on the ground in front of him and
head of victim Jabrul fell down on hard substance resulting bad injury on his head. He
stated that both the accused Rajiul and victim Jabrul were fighting and quarrelling
with each other and there was land dispute between the parties.
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9. PW-4, Ijjatan Bibi is another injured of the case. Her evidence is that on the day
of incident while she went to the pond, she saw Ali Hussain and Rajiul Hoque
assaulting her husband Jabrul Hoque. She deposed that incident occurred very early in
the morning and her husband was fishing in the previous night. She deposed accused
persons Ali Hussain and Rajiul Hoque restrained her husband from fishing in the pond
and she saw accused Ali Hussain, Rajiul Hoque, Nur Hussain and Fakaruddin
assaulting her husband by sharp edge weapons and all of them gheraoed her husband
and hit on the face of her husband by sharp weapons. She deposed that they also hit
on the teeth, hands and legs of her husband. She deposed that seeing her, accused Ali
Hussain and Nur Hussain had also assaulted her by a bamboo stick, accused
Fakaruddin assaulted her by a dao on her head and hand and she sustained deep cut
injury. She deposed in the said incident her daughter was along with her and accused
Ali Hussain had assaulted her daughter with sharp weapon. She deposed they started
shouting and hearing their hue and cry, people came to the place and accused
persons seeing people left the place of occurrence. She deposed that neighboring
people took her husband to police station and then to hospital and they treated him at
the Dhubri Civil Hospital. She deposed she sustained cut injury on her shoulder, her
husband sustained cut injury on his body and apart from accused Ali Hussain, Rajiul
Hoque, Nur Hussain and Fakaruddin, the other accused persons Fatema Bibi, Manora
Bibi, Sanowara Bibi and Nur Jahan Bibi were also present at the place of occurrence
and they also took part in the offence. In cross examination, she stated all the
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accused persons are relatives of her husband Jabrul and there was land dispute
between accused persons and her husband and civil cases are also pending in respect
of land dispute. She stated the pond where her husband was fishing belonged to all
the family members. She stated that at the time of occurrence, Akkel All, Hyder Ali
and Habejuddin were also present at the place of occurrence and hearing hue and cry
Abdul Matleb, Iman All and Sofijuddin came to the place of occurrence and took her
husband to the hospital. She further stated that accused persons had also lodged case
against them. She denied that accused persons did not assault and hit her husband or
that she did not state before police that accused Ali Hussain assaulted her husband by
sharp weapon and other accused persons gheraoed him from every side.
10. Evidence of PW-5 Abdul Matleb is that an altercation took place in between
accused persons and Jabrul Hoque with regard to fishing and he separated them and
went with his Rickshaw and after returning home, he again heard that fresh dispute
again started. In cross examination, he stated he had witnessed Iman Ali at the place
of occurrence. Place of occurrence is near the pond which belonged to Jabrul and he
cannot say with whom the subsequent dispute started and he witnessed accused
Rajiul and Jabrul at the place of occurrence. He further stated his house is about 1
farlong distance from the place of occurrence.
11. PW-6, Sofijuddin Ali deposed he knows informant, injured and accused persons.
He deposed that the incident took place about 5/6 years back in the morning hour at
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about 06.30 am. He heard that an altercation took place between Jabrul Hoque and
accused persons with regard to fishing and Jabrul sustained injury. PW-6 was declared
hostile by the prosecution. In cross examinationby prosecution he stated he was
present at the place of occurrence at the time of incident. He denied that he did not
state before the police that on the day of incident hue and cry took place near the
pond and accused persons armed with lathi, dao etc. assaulted Jabrul and injured him
and hearing hue and cry wife of injured Jabrul also come to the place of occurrence
and accused persons also assaulted her and he witnessed the whole incident. In cross
by defence, he stated victim Jabrul Hoque, accused persons Ali Hussain and Rajiul
Hoque are own brothers and there was land dispute in between them. He further
stated that he saw Iman Ali the place of occurrence.
12. PW-7, Tanjuma Begum is another injured. Her evidence is that while her father
went to the pond side to sprinkle DTT powder, the accused persons assaulted her
father. Hearing hue and cry when she went to the place of occurrence then accused
persons also assaulted her and her mother. She deposed that the accused persons
assaulted her using stick, dagger and she sustained injury on her head and hand.
Hearing her hue and cry, people came and seeing this accused persons left the place
of occurrence. Thereafter, they were taken to the hospital and police sent them to the
Dhubri hospital and they took treatment at hospital for 15/20 days. In cross
examination, she stated there are no houses standing between the place of
occurrence and their house and the pond is situated on the western side of their
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house. She stated that the accused persons are adjacent neighbor. She stated she
noticed Abdul Motleb, Ibrahim and Iman Ali at the place of occurrence and accused
and her father are own brothers. She denied that the accused persons got a decree
for the land of place of occurrence; that she did not made statement before police
that accused Fakaruddin did not assault her; accused persons did not assault her
mother and father; she did not made statement before police that on the day of
incident her father went to the pond to sprinkle DTT powder. She further denied that
she did not state before police that accused Ali Hussain had assaulted her father with
a dagger or that her father sustained injury by falling in the pond.
13. Evidence of PW-8, Sailendra Kumar Baruah, I.O of the case is that on being
endorsed by O/C Bilasipara PS, he had investigated the instant case. Prior to him, his
predecessor IO Sirajul Hoque had conducted the investigation. He deposed during
investigation after perusal of the C.D, he only submitted chargesheet against the
accused persons u/s 149/323/324/325/307 IPC vide Ext-3 and Ext-3 is his signature.
In cross, he denied he did not investigate the case properly.
14. PW-9, Dr. Kochir Ali Ahmed, M.O deposed he had examined Jabrul Hoque as
indoor patient w.e.f from 04.11.2008 to 21.11.2008 following assault on 04.11.2008
and during examination of Jabrul Hoque he found- i. Lacerations over forehead (4 inch
X 1 inch X 1/2 inch), lower lip (2 inch X 1 inch X 1/2 inch), left arm (1/2 inch X ¼ inch
X 1/5 inch), ii. Bruise over left leg (6 inch X 2 inch) colour is bluish, iii. Abrasion over
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left leg (3 inch X 2 inch), iv. Sprain over left knee joint, v. Incised wound on right
thumb (1 inch X 1/2 inch X 1/5 inch), vi. Fracture of mandible at four three sides(three
and four) with missing teeth upper left second and six mobile teeth 5,4,3 in left upper
jaw and 5,4,3 in left lower jaw and there is displacement of the lower jaw which
required treatment by dental surgeon, vii. Fracture of lower third of right ulna, upper
end of left fibular and lateral condyle of left humerus, viii. X rays are done and all the
rays are enclosed with medical report. According to him, Injury no. i, ii, iii and iv are
simple in nature and vi and vii are grievous in nature. All the injuries are fresh in onset
and caused by blunt object except injury no. v which is caused by sharp edge weapon.
He deposed on the same date he had also examined and treated Tanjuma Beguri and
Izztiton Bibi. During examination on Tanjuma Begum he found bruise over right
shoulder (3 inch X 1 inch) and right parital area of scalp (2 inch X 1 inch) colour is
bluish. According to his opinion above mentioned injury is simple in nature, fresh in on
set and caused by blunt object and during examination of Izzaton Bibi he found i.
Incised wound over right parital area (3 inch X 1/2 Inch X1/4 inch) and right elbow (2
inch X ½ inch X 1/5 inch) with bleeding. According to his opinion, above mentioned
injury is simple in nature and fresh in on set and caused by sharp edge weapon. In
cross examination, he stated that in his medical report he had mentioned the date of
receiving police requisition i.e. dated 25.12.2008 and Sapatgram SHC referred the
injured after preliminary examination by them along with the reference document
which were kept at the Dhubri Civil Hospital. He stated all the injuries of the persons
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examined by him are fresh on set and fresh injury means sustained by the injured
within 24 hours of the examination. The injury sustained by Jabrul can hardly take
place if falls on hard substance because injured Jabrul Hoque sustained multiple
injuries of various nature and injury no. v sustained by the injured Jabrul cannot occur
to him if hit by hammer or iron rod and injury no. vi and vii caused to Jabrul cannot
caused to person by simply falling. There must be sharp force on the person. He
further stated injury sustained by Izzaton Bib cannot take place by falling on hard
substance. However, injury caused to Tanjuma Begum may be caused by falling on
hard substance.
15. PW-10, Retired SI (UB) Sirajul Hoque is I.O of the case. His evidence is that on
05.11.2008, OC, Bilasipara Police station received the ejahar filed by one Nazrul
Hoque and registered a case vide Bilasipara PS case No 288/08 u/s 147/149/326/307
of the IPC and after registration of the case, it was endorsed him to investigate the
case. Accordingly, after taking of the charge, he had visited the place of occurrence,
recorded the statement of the witnesses and also prepared a sketch map of the place
of occurrence. He deposed that injured persons had already been sent to Sapatgram
hospital for treatment by police of Sapatgram and from there he sent the injured
persons to the Dhubri Civil Hospital. Thereafter he had collected the medical report of
the injured persons and he also seized two Bamboo sticks from the place of
occurrence as shown by informant and on being transferred, I handed over case diary
to the OC, Bilasipara Police station. In cross examination, he stated that the incident
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took place on 04.11.2008 and he visited the place of occurrence on the next day of
incident on 05.11.2008. He stated that he had not made any GD entry for sending the
victims to the hospital and he did not made any requisition for sending the injured
persons to Dhubri Hospital. He stated the place of occurrence is an open area and
there was Railway line near the place of occurrence and there was also a small pond
of Jabrul on the western side of the place of occurrence. He stated no sharp weapon
was found at the place of occurrence. He stated PW-1 Nazrul did not state before him
that his wife and daughter were present at the place of occurrence; he heard hue and
cry at the place of occurrence and he rushed to the place. He stated PW-2 did not
state before him that he was under treatment for one month; accused persons were
illegally fishing his pond and when he resisted the accused persons, they assaulted
him. He stated PW-4 did not state before him that Ali Hussain and Rajiul Hoque were
present at the place of occurrence: Ali Hussain assaulted her husband with dagger
and other accused persons gheraoed her husband. He stated PW-7 did not state
before him that accused Fakaruddin assaulted them. He denied that he had not
investigated the instant case properly.
16. Mr. P. Bora, learned Senior Counsel for the appellants submitted that the
prosecution case is riddled by major contradictions in the evidence of the prosecution
witnesses as brought out during cross examination by the defence. Further, it is
submitted that the alleged injured persons were not sent to the hospital on police
requisition and moreover, it has been confirmed by the I.O during his cross
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examination that he did not make any GD entry for sending the victim to the hospital
and did not make any requisition for sending the injured persons to Dhubri Hospital.
17. It is further pointed out that no sharp weapon was found at the place of
occurrence, although the allegation is that the appellants attacked the injured persons
with sharp weapon. The I.O also confirmed that the PW1 did not state before him that
his wife and daughter were present at the place of occurrence or that he was under
treatment for 1 month. The I.O further stated that PW2 did not state that he was
under treatment for 1 month and that the accused persons were illegally fishing in
his pond and when he resisted, the accused persons assaulted him. The I.O also
confirmed that PW-4 did not state before him that appellants Ali Hussain and Rajul
Haque were present at the place of occurrence and Ali Hussain assaulted her husband
with a dagger and other accused persons gheraoed her husband. Further, it was
confirmed by the I.O that the PW7 did not state before him that the accused
Fakaruddin assaulted them. Referring to the evidence of PW5, Abdul Matleb it is
submitted that he had separated the accused and the injured when the
fighting started and altercation took place but did not depose to any assault having
been made by the appellants upon the injured.
18. PW6 though declared hostile through the prosecution deposed that he heard
that an altercation took place between the two sides. Further, it is submitted that from
the evidence of PW3, it is clear that the injury on the PW2 was caused by falling on a
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hard substance and not because of assault by any of the appellants. It is further
submitted that long seven years have elapsed since the incident and even if the
findings of the learned court below are affirmed in this appeal, the appellants may be
granted the benefit of the provisions of the Probation of Offenders Act, 1958.
19. On the other hand, learned Additional PP submitted that the PW1, PW2 and
PW3 have categorically implicated the appellants and moreover, the evidence of PW5
confirms the presence of the accused persons. It is submitted that the learned Trial
Court has rightly convicted and sentenced the appellants.
20. Learned Counsel appearing for the respondent No.2/ informant submitted with
reference to the date of occurrence that the depositions of the witnesses were
recorded seven years after the incident and therefore, there is bound to be some
amount of discrepancy as nobody can be expected to remember every detail of the
incident in its proper order after such a long period.
21. It is also submitted that the evidence of the injured witnesses have been
confirmed by the medical evidence and the evidence of the PWs have been more or
less consistent at every stage and corroborate each other.
22. A perusal of the evidence of PW1 and PW2 would indicate some discrepancy in
the order in which the injured persons proceeded to the place of occurrence. PW1
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deposed that his brother-in-law Jabrul Hoque went to his pond for fishing early in the
morning and was accompanied by his wife and daughter. PW1 stated that he saw the
accused persons had confined his brother-in-law and assaulted him on his body and
head by sharp weapons and stick and when the wife of his brother-in-law, who is the
sister of PW1 came forward along with his daughter to save his brother-in-law, the
accused persons assaulted them as well.
23. On the other hand, PW2 i.e. Jabrul Hoque deposed that his wife was first
assaulted by Ali Hussain by a stick and also by sharp weapons and thereafter all the
other accused persons assaulted his wife, who fell down on the ground and sustained
serious injuries and they also assaulted his daughter by stick and sharp weapons and
thereafter, the accused persons assaulted PW2. PW3 deposed that on arriving at the
paddy field he saw the scuffle between the accused and the victim and during cross,
he stated that he saw accused Rajiul assaulting Jabrul who fell down on the ground in
front of him. He did not depose regarding assault upon the wife and daughter of the
main injured i.e PW2. According to PW4 who is the wife of the PW2 she saw the
accused persons assaulting her husband by sharp edge weapons and upon seeing her,
they also assaulted her. Her daughter was also assaulted by accused Ali Hussain.
Therefore, according to the versions of PW1 and PW4, it was the PW2 who was first
assaulted and thereafter, when his wife and daughter intervened they were also
assaulted.
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24. Although there is a difference in the versions of the PW2 and the other two
aforesaid witnesses i.e PW1 and PW4 as regards the sequence of events, the same
cannot be regarded to be of much significance in as muchas the medical evidence
discussed above fully corroborates the versions regarding assault by the appellants
upon the PW1 and his wife and daughter. Therefore whatever be the sequence,
the offense is complete and having regard to the long period in between the
occurrence and the date of deposition, as rightly contended by learned counsel
appearing for the informant, some discrepancy can be expected and too much stress
need not be laid on them that as regards the evidence of PW5, it appears that he did
not see the actual incident but he did identify the presence of some of the appellants
at the place of occurrence.
25. Coming to the evidence of the PWs, it is the version of PW1 that he saw the
accused/appellants confining his brother-in-law and assaulting him on his body and
head by sharp weapons and stick resulting in grievous injuries on his head and body
causing profuse bleeding. He also deposed as to how the wife and daughter of the
deceased were also assaulted and despite lengthy cross-examination of PW1 as well
as from the cross-examination of the other PWs, defense could not succeed in ruling
out the presence of PW1 at the place of occurrence. Therefore, his version has duly
corroborated the version of the main injured person i.e. PW2 who deposed that after
the initial quarrel the accused persons came along with sharp weapons and stick and
assaulted his wife, daughter as well as himself. He also described the injuries
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sustained by his wife and daughter.
26. He deposed that accused Ali Hussain first hit him on the backside of the waist
and he fell down on the ground and thereafter, all the other accused persons hit him
on his hands, head and chest and his hands as well as his legs were broken as a result
of such assault.
His cross-examination did not result in shaking his version other than bringing
up certain omissions as already indicated above, but in view of the injuries inflicted
upon the PW2 as fully confirmed by the medical evidence, such omission is also not of
much significance and certainly does not amount to any material contradiction. As
already discussed above, the evidence of the main injured is also corroborated by the
other injured person i.e. PW4 wife of the PW2 who corroborated the PW2 in material
particulars. Although it is an admitted fact that there were disputes between the
parties resulting in civil as well as criminal cases, the possibility of false implication can
be safely ruled out in view of the extensive medical evidence as deposed to by the
PW9/M.O.
In his cross-examination, he has categorically ruled out that the injuries may be
caused by falling on a hard substance in view of the multiple injuries of various nature
suffered by the PW2. With regard to the PW4, the M.O deposed that injuries sustained
by her cannot take place by falling on a hard substance. It is only in respect of the
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daughter of PW2 and PW4 that the MO stated that the same may be caused by falling
on hard substance.
27. From the above versions of the PWs, more particularly, the injuries sustained,
there can be no doubt that the injuries upon the injured persons were caused by the
appellants who had been specifically implicated by more than one witness in their
evidence. It is trite law that the evidence of the injured witness stands on a higher
pedestral and unless any motive for false implication can be squarely established, the
same has to be accepted.
28. In the present case, it is seen that although there were 4 criminal cases against
the PW2, admittedly he has been acquitted in all of them which in fact provides a
motive to the appellants to cause harm to the PW2 although the immediate
provocation appears to be with regard the objection raised by the informant side to
the fishing done by the appellants upon the pond belonging to the PW2.
29. Although the I.O has deposed that he did not make any GD entry for requisition
for sending the injured persons to hospital, it has been stated by the M.O that
although the PW2 self appeared for treatment, he was later on identified by the ASI,
Sirajul Hoque of Bilasipara PS and requisition was also submitted mentioning the case
number as Bilasipara PS Case No. 288/08 and that it was a referred case from
Sapatgram. Further, in his cross examination also, the M.O deposed that Sapatgram
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referred the injured after preliminary examination and also made reference to the
document which were kept at Dhubri, Civil Hospital.
30. From the above, I do not find any reason to doubt the identity of the persons
who were examined by the M.O.
31. With regard to the delay in lodging the FIR i.e. on the next date of the
occurrence, from the evidence of the PWs regarding the injuries suffered by the PW2
including fracture of his hand and leg as well as head injury, the same delay is
explained and it has been rightly held by the learned Trial Court that on top of the
exhibit-1/ejahar, it is seen that the ejahar is dated 04.11.2008 i.e. the date of the
incident and the evidence of the I.O., Medical report of the injured persons shows that
the injured persons were taken to Sapatgram Hospital and Dhubri Civil Hospital by the
police and it clearly appeared therefrom that the informant lodged the ejahar on the
date of the incident but it was the then O.C, Bilasipara PS who had registered the case
on 05.11.2008, and therefore the fault of the O.C in delaying the registration of the
case would not shift the fault to the informant and, even otherwise, it appears from
the evidence of PW1, PW2, PW4, PW7 and PW9 that the injured persons were taken
to hospital for providing treatment and police also accompanied them and appeared
subsequently on the same date and identified them and therefore, even if any delay is
present in lodging the FIR the same is properly explained and taking of treatment by
the injured persons at the hospital is sufficient cause for any delay in lodging the FIR
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when the informant himself was present with the injured persons at the hospital.
32. Evidence of PW-2 injured shows that he was attacked by stick and sharp
weapons. He was hit first by accused Ali Hussain on his back side and when he fell
down on the ground, other accused hit and assaulted him on his hand, back and
chest. He stated he sustained grievous injury on his forehead and accused persons
had broken his hand. PW-4, who rushed to the place of occurrence immediately after
hearing hue and cry found that accused Ali Hussain, Rajiul Hoque, Nur Hussain and
Fakaruddin assaulted her husband with sharp weapon by gheraoing him. They hit on
her husband's head and face and as a result, the teeth of her husband were uprooted.
Due to assault on her husband's head and hand, hand of her husband was fractured.
The injury caused to PW-2 injury no. i, ii, iii, iv are simple in nature and injury no. vi
and vii are grievous in nature and injury no. v is caused by sharp weapon. The
medical evidence shows that PW-2 sustained injury on his forehead and incised wound
on his right thumb which is caused by sharp edge weapon. Fracture of lower third of
right ulna, upper end of left fibular and uprooting of teeth are grievous injury. Thus, it
is shown that injury stated to be sustained by PW-2 is fully corroborated by medical
evidence. Statement of PW-5 hostile witness and PW-6 also pointed to taking place of
the incident on the day of incident in the morning hour. Evidence of PW-5 and PW-3
pointed to assault on Jabrul by accused persons Ali Hussain and Rajiul. PW-4 stated
accused Fakaruddin also assaulted PW-2.
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33. In view of what has been discussed above, I am of the considered view that the
learned Trial Court upon proper appreciation of the evidence has come to a finding of
guilt in respect of the present appellants under the appropriate provisions and
therefore, I find no scope for interference with the conviction of the appellants.
Further, with regard to the prayer for applying the provisions of Probation of Offenders
Act, given the nature of the offences, I find that the learned Trial Court rightly
refrained from applying the same.
34. With regard to the quantum of sentence, having regard to the fact that the
appellants caused grievous injuries upon the PW2 and did not spare the wife and
daughter of the PW2, the sentence of 2 years RI imposed by the learned Trial Court is
found to be just and reasonable.
35. In view of the aforesaid discussion, the Judgment and Order of the learned Trial
Court stand affirmed. The Appeal stands dismissed.
36. Send back the TCR.
JUDGE
Comparing Assistant
