RUBUL SK.@ BHUGAL SK vs STATE OF ASSAM

Heard learned counsel for the appellant, Mr. S. Rahman and learned Addl. P.P. for the State, Mr. B.B. Gogoi.

This appeal is directed against the judgment and order dated 18-02-2010 passed by learned Sessions Judge, Dhubri in Sessions Case No. 2/2005. By

the said judgment, the learned Sessions Judge convicted the appellant u/s 325 IPC and sentenced him to imprisonment for two years and fine of Rs.

2,000/- with default stipulation.

The prosecution case, as projected in the first information report, on 15-6-2004 at about 2 p.m., the accused/appellant assaulted the brother of the

informant out of old grudge.

Consequently, he sustained injury and while undergoing treatment in Civil Hospital, Dhubri, he died on 26/4/14. FIR was lodged by the brother of the

alleged victim on the basis of which, police registered a case and after usual investigation, submitted charge-sheet against the petitioner u/s 302 IPC.

On receipt of the Charge-sheet, learned trial Magistrate took cognizance and having found the offence exclusively triable by the court of Sessions,

committed the case to the Court of Sessions.

In course of trial, learned Sessions Judge framed charge u/s 302 IPC against the appellant, to which he pleaded not guilty. 13 (thirteen) witnesses

were examined by the prosecution to establish the charge. On appreciation of evidence, learned trial court, having found that charge u/s 302 IPC was

not proved, convicted the accused person u/s 325 IPC and awarded sentence, as indicated above.

Aggrieved, the appellant preferred the instant appeal.

Learned counsel for the appellant submits that there was no evidence to record a conviction u/s 325 IPC and therefore, the impugned judgment

deserves interference by this Court. Learned Addl. P.P., Mr. BB Gogoi also fairly submitted that the evidence brought on record was not sufficient to

bring home a charge u/s 325 IPC. However, a charge u/s 323 IPC has been proved beyond doubt.

In view of the submission made by the learned counsel, this court needs to scan the evidence brought on record.

PW 9, the doctor, who conducted the post mortem examination on the body of the victim found as under : -

“There is right paramedia surgical incision with stitch present in the abdomen of 8’’ length. There are two surgical drainage tube in two

flanks of abdomen. Cranium and spinal cord shows all structures are intact.

Thorax : All structure are intact and normal

Abdomen : There is full of pus and offensive smell material in peritonial cavity.

Small intestine and large intestine and their contents : There is end to end anastomosis stitch with catgat and silk.

Liver, spleen and kidneys shall are in tact and normal. The peritonial pus and surgical anastomosis in the gut suggest post-operative peritonitis.â€​

In the opinion of the doctor, the cause of death was due to septic shock following operation of guts which leads to ceptic peritonitis.

PW 8 another doctor, who examined the victim stated, in his evidence, that on clinical examination, he diagnosed sub-acute intestinal obstruction on

the person of the patient and referred him to Dhubri Civil Hospital for surgical intervention.

PW 1 stated, that on hearing noise, he came out and found that the accused and the victim were quarrelling and he advised them not to quarrel.

PW 2, the informant and PW 3 stated that they heard about quarrel between the accused and the victim. According to PW 2, the victim was taken to

Dhubri hospital, where he was operated upon. PW 4 stated that hearing hue and cry, he came out and noticed that accused and victim were going to

different direction. According to PW 5, the victim was suffering from gastric and he was taken to hospital and the doctor advised him for operation.

PW 6 stated that the victim was liable to pay Rs. 300/- and there was a quarrel for that and the accused dealt him fist blow. This witness also stated

that he heard about the occurrence and he himself did not see the occurrence.

The dying declaration of the victim was recorded by PW 12, which was proved as Ex-1. In the said dying declaration the victim stated that without

any reason accused Rubul Sk. @ Bugal Sk. suddenly started beating him and he sustained injury. The inquest report proved as Ex-8 shows that there

was no external injury on the body of the victim.

Thus, the entire evidence brought on record including the medical evidence shows that the victim had undergone surgery for his ailment and cause

of death of the victim was the complications arising out of surgery. According to the doctor, the cause of death had nothing to do with any external

injury sustained by the victim.

The evidence brought on record including dying declaration indicated that the appellant assaulted the victim by hand. Evidently such assault by

hand had nothing to do with the cause of death. No evidence was brought on record to show that any grievous hurt was caused. Thus, the evidence

adduced by the prosecution totally ruled out the homicidal death of the victim. On the basis of the above evidence, the trial court came to the finding

that no offence u/s 302 IPC was proved. However, the trial court convicted the appellant u/s 325 IPC.

Section 325 IPC reads as under :-

“Punishment for voluntarily causing grievous hurt.â€"Whoever, except in the case provided for by section 335, voluntarily causes grievous hurt,

shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.â€​

In order to bring home a charge u/s 325 IPC prosecution has to prove that grievous hurt was caused to the victim and such hurt was caused by the

accused voluntarily. Only evidence adduced in the present case was that the victim was beaten by the accused and such evidence was not sufficient

to bring home a charge u/s 325 IPC, inasmuch as, the basic ingredient of causing grievous hurt was totally absent. In fact, no external injury was

detected by the doctor. At best, the dying declaration coupled with the testimony of PW 6 can make out a case of simple hurt u/s 323 and therefore,

the accused could not be convicted u/s 325 IPC on the basis of such evidence.

In view of the above facts and circumstances of the case, I am of the view that the conviction of the accused u/s 325 IPC is not sustainable.

However, the materials brought on record establishes an offence u/s 323 IPC and accordingly the conviction of the accused/appellant u/s 325 IPC is

set aside and he is convicted u/s 323 IPC.

It appears that the accused was in custody for some period and accordingly the sentence of the accused u/s 323 IPC is reduced to the period

which he had already undergone in jail during investigation and trial.

With the above modification in conviction and the quantum of sentence, the appeal is partly allowed. Bail bond, if any, stands discharged.

Send back the LCR.