SRI DILIP MEDHI vs THE STATE OF ASSAM

1.This petition under Section 401 (4) read with Section 482 Cr.P.C has been preferred by the petitioners against the impugned judgment and order,

passed by the learned Additional Sessions Judge, (F.T.C. No. 2), Kamrup, Guwahati, in Crimimal Appeal No. 44/2007, directed against the judgment

and order, dated 12.06.2007 passed by the learned Judicial Magistrate, 1st Class, Rangiya in connection with C.R. Case No. 484c/2005 under Section

341/323/34 IPC, whereby each of the petitioners is convicted and sentenced to undergo simple imprisonment for one month and to pay fine of

Rs.500/-, in default further imprisonment for 15 days under Section 341/34 IPC and also to undergo simple imprisonment for one year and to pay a

fine of Rs.1000/-, in default to suffer simple imprisonment for one month under Section 323/34 IPC. In appeal, however, the learned Addl. Sessions

Judge, F.T.C. No. 2, Kamrup maintained the fine amount only and set aside the substantive sentence of imprisonment part.

The petitioner’s case, in a nut-shell, is that an F.I.R. was lodged with the Officer in- Charge of Kamalpur P.S., alleging, inter alia, that on

17.09.2002 at about 1 P.M., when his son Mizanur Hussain, was proceeding towards Madanguri Maranadi, riding a bicycle, the petitioner No. 2,

Nurulla Ali, who is a police officer, restrained and assaulted him without any cause.

Based on the above FIR, Kamalpur P.S. Case No. 176/2002, under Section 341/325/34 IPC, was registered and after completion of investigation,

the police submitted final report. However, on receipt of notice, the informant, Makibar Rahman preferred a protest petition before the Court of

learned Sub-Divisional Judicial Magistrate, Rangia, vide order, dated 29.06.2005. Accordingly, the learned Sub-Divisional Judicial Magistrate, Rangia

accepted the protest petition and rejected the final report and after registering the case as complaint case, made over the case to the Court of the

learned Judicial Magistrate, 1st Class, Rangia for disposal. The learned Magistrate, after making necessary inquiry under Section 200/202 Cr.P.C.,

took cognizance of the offences under Section 341/323/34 IPC against the petitioners.

The learned Magistrate explained the offences to the petitioners, to which they pleaded not guilty and claimed to be tried. Thereafter, the trial

commenced and the complainant, in order to establish the offences, examined as many as five witnesses including the Medical officer. After closing

the evidence of the complainant’s side, the statement of the petitioners were recorded under Section 313 Cr.P.C. The petitioners pleaded not

guilty and inclined to examine witnesses in defence. Then the defence examined 4 witnesses while the complainant cross examined them.

The learned Magistrate, after hearing the arguments of the learned counsel of both the sides and appreciation of the evidence adduced by both the

sides, held the petitioners guilty of the offences and convicted and sentenced as stated above.

Aggrieved, the petitioners preferred an appeal being Criminal Appeal No. 44/2007, before the Court of learned Sessions Judge, Kamrup, Guwahati,

which was eventually transferred to the Court of learned Additional Sessions Judge, FTC No. 2, Kamrup, Guwahati for disposal.

The learned Additional Sessions Judge, F.T.C. No. 2, Kamrup at Guwahati, on appreciation of the evidence adduced by both the sides and hearing

the arguments of the respective learned counsel held the opinion that the learned Trial Magistrate had rightly convicted the petitioners under Section

341/323/34 IPC and as such, there was no scope for interference in appeal. However, regarding the sentence, the learned Additional Sessions Judge

opined that as the learned Magistrate awarded the maximum sentence prescribed under the provisions under which they have been held guilty.

The learned Additional Sessions Judge observed that as the occurrence had taken place in the year 2002 and the petitioners have faced trial since

2005 and the injuries sustained by the victims were of simple in nature, as such, it was opined that the sentence of fine will meet the ends of justice.

Thus, the learned Additional Sessions Judge maintained the order of conviction and sentence of fine, while the imprisonment part of sentence was set

aside.

Being aggrieved, the petitioners have preferred the instant revision petition assailing the impugned judgment and order of conviction, passed by the

learned Additional Sessions Judge in Criminal appeal No. 44/2007, basically on the grounds, inter-alia, that the learned Court below did not appreciate

the evidence on record from proper perspective; that the learned Court did not consider the legal requirement of obtaining prosecution sanction from

the competent authority to prosecute the petitioner No. 1, who is a police officer, as required under Section 197 Cr.P.C; that the learned Court below

ignored the evidence adduced by the defence side and emphasized more on the examination-in-chief of the complainant’s witnesses; that the

learned Courts below have failed to appreciate the fact that the PWs are closely related and as such, interested in the proceeding and further, that the

incriminating materials that emerged from evidence on record were not put to the petitioners, while recording their statements under Section 313

Cr.P.C., which occasioned failure of justice to them.

Now, let us look at the evidence on record.

PW-1, MD. Makibar Rahman is the complainant. His evidence is that on 17.09.2002 at about 1 P.M., while he was going towards his paddy field

along with his son, namely, Mizanur Hussain ahead of him, the petitioner No. 2 without any reason assaulted him, causing injuries on his person.

Consequently, Mizanur had to undergo medical treatment for about ten days. He denied the defence suggestion that he went to Madanguri Beel along

with his son with intent to catch fish without permission of the lessee i.e. the petitioner No. 2, the Mahaldar and when the police arrived at the place,

his son, Mizanur sustained injury on his head as a result of pelting of stones by the public.

PW-2, Syed Abdul Kalam, inter-alia, deposed that on 17.09.2002, at around 1.45 P.M, while he was going towards Deuduar from Changsari side,

on a scooter, he noticed the petitioner No. 1 and the petitioner No. 2 along with a battalion party and some public apprehending Mizanur Hussain, near

Gopeswar temple and when the petitioners went away, they said that they would bring a vehicle. He saw blood oozing out of the head of Mizanur, but,

thereafter, the police personnel did not return and they brought Mizanur to Dorakahara State Dispensary. However, as it was found closed, they

brought Mizanur to Dewan Polyclinic and provided treatment and later on, he learnt from Mizanur that accused Petitioner No. 1, ASI Dilip Medhi

assaulted him on the instigation of the accused petitioner No. 2, when he was going to his paddy field.

PW-3, Md. Mizanur Hussain is the injured in the case. His version is that on 17.09.2002, at about 1 P.M., while he was going to Balapathar field

on his bi-cycle, the petitioners, who were accompanied by a battalion party, restrained him on his way and the petitioner No. 2 inflicted slapings and

pushed him towards the petitioner No. 1, a police officer, asking him to beat him up. Then, the petitioner No. 1 assaulted him by means of a stick on

his chest and back and head. Blood started oozing out from his head and he became senseless at the spot. The injured further deposed that his father,

Makibar Rahman (PW-1) was following him and he regained his consciousness at Dewan Polyclinic, where he underwent treatment for about ten

days. On 18.09.2002, he was taken to Dorakahara Dispensary and therefrom, he was brought to Dewan Polyclinic for medical treatment. He denied

the defence suggestion that on the day of the occurrence, he along with the public went to Madanguri river to catch fish without permission and the

police shot in the air, as they pelted stones on them and in the said incident, he sustained injuries by fall on stones and the police personnel on duty at

the place caught him with a fishing net.

PW-4, Md. Rafikar Rahman has, inter-alia, deposed that on 17.09.2002, at around 2 P.M., while he was returning from Madanpur, he noticed

gathering of public near Gopeswar Devalay. He went near to the place and found Mizanur Rahman, his father and brother-in-law, Abdul Kalam and

the petitioner No. 1 with some police personnel. He also noticed blood oozing out from the head of Mizanur and on the spot, he was told by one of the

police personnel that some vehicle would reach, but when the vehicle arrived, Makibar brought one Maruti van and brought Mizanur to DoraKahara

State Dispensary. However, as there was no doctor, they removed him to Dewan Polyclinic, situated at Changsari, where he underwent treatment for

about ten days.

PW-5, Dr. Subodh Sarmah is the doctor, who examined Mizanur Hussain on 18.09.2002, at DoraKahara State Dispensary and found i) tear of

scalp caused by blunt force, over left temporal region, size about 2’’ X ½’’ x 1’’, ii) blunt injury all over the back with

achymosis, and iii) blunt injuries over chest and abdomen.

During cross-examination, the doctor deposed that he did not mention the age of the injury and he suggested that the nature of injuries, Mizanur

sustained may be caused by fall on broken pieces of glass.

DW-1, Sri Prajnit Deka, inter-alia, deposed that on 17.09.2002 many people entered into Madanpur Beel for the purpose of fishing and when the

lessee of the said Beel informed the police, police went there. Petitioner No. 1, who is a police officer, went to the place along with 4/5 police

personnel, but public pelted stones on them. In such a situation, the police opened blank fire. In the said incident, many people sustained injury. He

could not, however, say whether Mizanur Hussain sustained injury by falling down while running away. According to him, the police did not assault

any one of the public and there was no quarrel between the petitioners and the injured PW-3 Mizanur.

DW-2, Sri Champak Kumar, inter-alia, deposed that on 17.09.2002, public entered into Madanpur Beel without any permission from its lessee.

According to him, he too accompanied the public for fishing in the Mahal. Mizanur went along with others. Later on, a police party led by the

petitioner No. 1 arrived the place of occurrence and resisted the public from catching fish in the Fish Mahal, to which public raised protest. Police

opened blank fire. People fled from the scene for safety and among them was Mizanur. While so running away, Mizanur sustained injury on his head

by fall on stones. According to him, at the relevant time of the occurrence, the petitioner No. 2 was not present at the place of occurrence and the

petitioner No. 1, who is a police officer, did not assault anybody. In cross examination, however, he could not say as to what happened, after he

abruptly left the place of occurrence.

DW-3, ASI Dilip Medhi is the petitioner No. 1. His version is that on 17.09.2002, on receipt of an ejahar from the lessee of Madanguri Beel

namely, Brajen Das, alleging to the effect that public, without permission were catching fish in his Beel, and when he went to the place of occurrence

to investigate into the case, about 2000 people of the area were found fishing in the said Beel. When the police party led by him arrived at the place of

occurrence, the public attacked and pelted stones on them. Finding no alternative to save their life, he opened fire in the air to disburse the public.

Thereafter, he and the police party, accompanying him, left the place. He denied to have caused any injury on the person of Mizanur Hussain and as

such, the allegations made against him and the other petitioner were false and fabricated. In connection with the incident, he filed an F.I.R. and S.I.

Jaduram Malakar investigated the case.

DW 4, Md. Nurulla Ali is the petitioner No. 2. According to him, on a day in the year 2002, the public forcibly entered into his Madanguri Beel and

indulged in fishing. Later on, getting the information about such unauthorised fishing in his Beel, he informed the incident to the police, wherefrom the

police arrived and public assaulted the police party including the police officer-the petitioner No. 1. He further stated that on the day of occurrence, he

was not present at the place of occurrence and he did not even assault the complainant’s son either by himself or through the police personnel. He

specifically denied the suggestion of the prosecution that on the day of occurrence, he, in fact, wrongfully restrained Mizanur and inflicted two slaps on

his face and pushed him towards the petitioner No. 1 and asked him to beat up him.

Perusal of the evidence of P.W.-1, Makibar Rahman, the informant and his son P.W.-3 Mizanur Hussain, the injured, it appears that on 17.09.2002

at about 1 P.M., while they were going to the field on bicycle by a narrow road, both the accused petitioners herein, confronted with them and the

petitioner No. 2 caught off the bicycle of Mazinur (P.W.-3) from behind. Asking Mizanur as to where he was going, forthwith petitioner No. 2 gave

him two slaps on both the cheeks, and also gave him a push towards the petitioner No. 1, the police officer. Petitioner No. 1 started assaulting him

with a stick mercilessly causing injuries on back, chest and head. P.W.-3, Mizanur fell unconscious and was bleeding. Witnessing the incident, P.W.-1

Makibar, who was behind him, forthwith shifted Mizanur to polyclinic for treatment. The said occurrence took place near Gopeswar temple. At that

moment, P.W-2 Syed Abdul Kalam, the brother-in-law of P.W.-3, Mizanur, who was proceeding towards Deuduar, witnessing the incident stopped

there and made arrangement for his medical treatment. He came to know from Mizanur that the petitioners assaulted him, while he was going to the

field. Although an F.I.R. was lodged, the police submitted final report and therefore, the protest petition was filed. The evidence of P.Ws 1, 2 and 3

has been corroborated by P.W.4 Rafikar Rahman, the uncle of P.W.3 Mizanur Hussain, who found P.W.3 being held by two police personnel in his

injured condition with bleeding from head and after waiting there for about half an hour, shifted him to the hospital. The medical evidence of P.W.5,

Dr. Subodh Sarmah, who examined Mizanur (P.W.3), on 18.09.2002, found simple injuries caused by blunt object on his person and thus, has

supported the occular testimony of P.Ws 1, 2, 3 and 4. The defence appears to have not challenged the findings on injuries sustained by P.W. 3.

The learned trial court, while recording the statements of the petitioners, under Section 313 Cr.P.C. put exhaustively the incriminating pieces of

evidence and they simply denied those circumstances without explaining any reasons therefor.

Now, turning to the evidence of D.W.-1 Shri Prajit Deka, it appears that on the day of occurrence, it was Biswakarma Puja day and when some

people went to Min Mahal for fishing, the Mahaldar, that is, the petitioner No. 2 reported the said incident, whereupon, the police arrived. Witnessing

arrival of police including the petitioner No. 1, the police officer, a section of the public rounded up the police, and while another section of the public

inclusive Mizanur ran away. The public pelted stones to the police, which prompted the police to open fire in the air. He could not confirm as to

whether Mizanur sustained injury by fall while running away from the place of occurrence. He ruled out, however, any quarrel between anybody. In

cross-examination, he could not say what happened after the police opened blank fire. D.W.-2 Champak Kumar, an independent witness, has

corroborated the evidence of D.W.-1. D.W.-3 Dilip Kumar Medhi and D.W.-4 Nurulla Ali, the accused petitioners, have corroborated the evidence of

D.Ws 1 and 2, so far the actual incident is concerned. D.W.-3, the police officer, stated that in connection with the incident, he filed an F.I.R. and the

case was investigated by S.I. Jaduram Malakar. However, neither in their statements under Section 313 Cr.P.C., they explained the incident as has

come in their evidence, nor the Case No. or G.D. Entry exhibited in the case to show that pursuant to receipt of the information about the public

fishing in the Min Mahal of petitioner No. 2, the petitioner No. 1, the police officer, went to the place of occurrence. Further, S.I. Jaduram Malakar,

the I.O. who investigated into the F.I.R. allegedly lodged by D.W.-3, has not been examined in the case. No copy of such F.I.R. is exhibited nor even

case No. has come on evidence. There is also no indication in defence evidence that the accused petitioners sustained any injury in the incident or any

compelling circumstance arose that led to firing by the police and as a result, Mizanur and others while fleeing from the scene sustained injuries in any

manner. Contrary to the defence evidence, the prosecution has established by consistent, cogent and convincing evidence that P.W-3, Mizanur (the

injured) was prevented from going in a particular direction at the relevant time, in which he had the right to proceed, an offence under Section 339 IPC

is clearly made out and as such, both the accused petitioners are liable to be punished under Section 341 and 323 IPC read with section 34 IPC.

In the instant proceeding, it is noticed that the plea of protection provided under Section 197 Cr.P.C was not raised in course of trial of the case

and on the other hand, there is no preponderance of probability for, at the relevant time of occurrence, the petitioner No. 1 acted in his capacity as a

public servant. Therefore, the petitioner No. 1 is certainly exposed to criminal liability and as such, it cannot be said that the proceeding was a nulity.

Accordingly, the plea of want of prosecution sanction under Section 197 Cr.P.C is not sustainable in law.

On the other hand, the petitioner No. 2, as has been rightly held by the learned Magistrate and thereafter, by the learned Additional Sessions Judge

in the appeal that the plea of alibi, taken by him, has not been proved by some amount of evidence showing preponderance of probability of his

absence at the place of occurrence at the relevant time. The petitioner No. 2 has not stated as to where he was, at the relevant time of the

occurrence. His failure to prove the plea of alibi appears to be inconsistent with his plea of innocence.

Upon close scrutiny of evidence adduced by the prosecution and on due weightage being given to the evidence adduced by the defence side in the

case, this Court finds that there is no reasonable ground for interference in the impugned judgment and order, passed by the learned Additional

Sessions Judge. It is made clear that in the backdrop of facts, the petitioners are not entitled to the benefit of Section 4 of the Probation of Offenders

Act, 1958.

Consequently, the impugned judgment and order, dated 05.11.2008, passed by the learned Additional Sessions Judge, No. 2 (FTC), Kamrup,

Guwahati is hereby affirmed.

Send back the LCR along with a copy of this judgment and order.