Sibu Paul vs State Of Assam

Heard Mr. J. C. Barman, learned counsel for the petitioner and Mr. D. Das, learned Additional Public Prosecutor.

This revision is directed against the judgment and order dated 07.06.2010, passed by the learned Additional Session Judge, in Criminal Appeal No. 09/2008. By the said judgment, learned Additional Session Judge dismissing the appeal filed by the petitioner, upheld the judgment and order dated 14.05.2018 passed in G. R. Case No. 1870/2006, whereby the petitioner was convicted under Section 324/323 IPC, and sentenced to simple imprisonment of 2 (two) months and fine of Rs.500/- under Section 324 IPC and fine of Rs. 500/- under Section 323 IPC with default stipulation.

As per prosecution case on 22.10.2016, at about 10.30 p.m. at night, the six accused persons named in the FIR entered into the Kali Puja Mandap and assaulted Biren Mandal and Kanti Mandal, who were members of the Puja Committee. An FIR was lodged by PW-1 Gaurango Chakraborty, on the basis of which, police registered a case and after completion of investigation, submitted charge-sheet against all the six accused persons and eventually, all of them stood trial.

In course of trial learned Judicial Magistrate framed charges under Section 323 & 324 IPC read with Section 149 IPC, to which all of them pleaded not guilty. Seven witnesses were examined to establish the charges and on appreciation of evidence, learned Additional Chief Judicial Magistrate convicted all the six accused persons under Section 323 IPC read with Section 149 IPC and awarded sentence of imprisonment for two months and fine of Rs.1000/-with default stipulation. In addition to that, the present petitioner was also convicted under Section 324 IPC and sentenced him to imprisonment for six months and fine of Rs.2000/-with default stipulation.

On appeal, the learned Additional Session Judge, partly allowing the appeal, reduced the sentence of imprisonment under Section 324 IPC to two months and fine to Rs.500/-. The fine under Section 323 IPC was also reduced to Rs.500/-.

Aggrieved by the judgment and order of the learned Additional Session Judge, the petitioner preferred the instant revision petition.

Learned counsel appearing for the petitioner submits, that though charge under Section 323 IPC was established against the petitioner, there was no legal and reliable evidence to substantiate the charge under Section 324 IPC, and as such, prayed for exonerating the petitioner from the charge under Section 324 IPC.

Out of the seven witnesses examined by the prosecution, PW-1, the informant, was a reported witness. He did not see the occurrence. PW-2 was one of the injured, who stated that while he was in the Puja Mandap, all the accused persons named in FIR came and assaulted him and Kanti Mandal. According to him, the present petitioner Sibu Mandal bite on his little finger and other accused persons gave him slaps.

According to PW-5, all the accused persons assaulted the PW-2 and when he raised objection, Shibu gave a blow on his chest and he fell down. He further stated that Shibu bite on the hand of PW-2. PW-3 stated that Shibu bite both Kanti Mandal and Biren Mandal. According to PW-4 also Shibu bite Biren Mandal. PW-2 and PW-5 were examined by the Doctor and according to the Doctor and the injury report proved as Ext.-3, there was bite injury on the little and middle finger of Biren, PW-2. The Doctor mentioned in the Exhibit-3, injury report, regarding the bite injury of Kanti Mandal, interestingly, PW-5 never stated about receiving any bite injury. Although the doctor mentioned in the injury report, that there was bite injury of Kanti Mandal, the report did not reflect as to on which part of the body the bite injury was inflicted.

According to PW-2, Shibu bite only on his little finger, whereas, according to Doctor the bite injury was on middle and ring finger. PW-4 though stated that Shibu bite both Kanti Mandal and Biren Mandal, such testimony is belied by Kanti Mandal himself. What the above evidence crystallize is that the injury report was either prepared perfunctorily or with any motive for giving undue advantage to someone and as such no credibility can be attached to the medical evidence in the present case. This, apart, the glaring the inconsistencies between the eye witnesses and injured as to causing bite injury, coupled with the fishy medical evidence, rendered the prosecution case regarding the accused inflicting any bite injury, totally unreliable and unworthy of trust. In view of the above evidence the conviction of the petitioner under Section 324 IPC is not sustainable.

So far the charge under Section 323 IPC is concerned, the evidence on record established the offence under Section 323 IPC beyond reasonable

doubt. In fact the conviction of petitioner under Section 323 IPC has also not been contested by the learned counsel for the petitioner. Accordingly the conviction and sentence under Section 324 IPC is set aside. So far the conviction and sentence under Section 323 IPC is concerned no interference is called for.

The revision petition stands partly allowed.

The petitioner shall appear before the learned Trial Court and pay the fine of Rs.500/-, or serve out the default sentence under Section 323 IPC as imposed by the learned Trial Court.

Send back the LCR.