State Of Assam vs Dilip Chakraborty

Heard Mr. D Das, learned Addl. PP, Assam as well as learned Senior Counsel Mr. HRA Choudhury assisted by Mr. A Ahmed learned counsel for the appellant.

Appeal is preferred u/s 378 of CrPC against the order of acquittal of the respondent No. 2 given by the learned Sessions Judge, Karimganj in Crl. Appeal No. 10(2) of 2007. Although the learned trial Court convicted the accused person namely Shri Dilip Chakraborty u/s 325 of IPC in GR Case No.  959/2000 by its order dated 18.04.2007.

Necessary brief of the case is that one Smti. Bani Roy lodged an FIR before the Nilambazar OP on 01.10.2000 alleging inter alia that on 30.09.2000 at about 2-00 P.M accused persons namely Pradip Chakraborty, , Dilip Chakraborty, Prafulla Roy, Prashanta Roy, Rasmay Roy and Balram Roy and others assaulted her brother in law Shri Nani Gopal Roy by means of Crowbar, dao as a result of which he sustained grievous injury on his person. He had to be hospitalized for the injury he sustained.

On the basis of FIR, Karimganj PS Case No. 494/2000 u/s 147/148/149/307/506 of IPC was registered against the accused persons. In course of trial, the IO examined the witnesses and collected medical report and finally submitted charge-sheet u/s 147/148/325 of IPC. All the accused persons faced the trial and denied the charge. In course of trial, prosecution examined 8 (eight) witnesses including the medical officer and the investigating officer. At the end of trial, the learned trial Court found and held the accused person Dilip Chakraborty guilty u/s 325 of IPC and sentenced him to RI for 6 (six) months and to pay a fine of Rs. 2,000/-, in default, SI for 1 (one) month. Other accused persons namely Pradip Chakraborty, Prasanta Roy, Jhorna Roy and Aparna Roy @ Moina Roy were acquitted from the charge. Rest of the accused Boloram Roy, Prafulla Roy and Rocendra Namsudra were convicted u/s 323 of IPC and they were sentenced to pay a fine of Rs. 5,000/- each.

The accused/respondent Dilip Chakraborty preferred the appeal against the said order of conviction and the learned appellate Court vide its order dated 14.03.2008 acquitting the accused/appellant from the charge under its order in Crl. Appeal No. 10(2) of 2007.

Assailing the correctness of the said order of acquittal, present appeal has been preferred by the State on the ground that the learned appellate court has failed to appreciate the evidence on record in proper perspective and arrived at erroneous finding. While deciding the case there were several eye witness to the occurrence including the injured himself which is also supported by the medical officer. The learned trial Court has decided the case on its own perception without there being any proper challenge to the said findings.

The learned counsel for the appellant has also led this Court to the evidence on record to submit that there is no material contradiction and omission on the part of those witnesses and certain plea has failed to scatter the evidence of those witnesses.

I have gone through the evidence on record accordingly.

The learned counsel for the respondent has however contended that in view of earlier enmity between the parties coupled with the fact that there is no any other independent witness examined on the part of the prosecution. No specific reliance can be held upon the sole testimony of the injured in view of the enmity between the parties. Furthermore, it has also been submitted that the conduct of the victim is itself doubtful for taking the treatment at different places at Badrapur Hospital despite there being several hospitals at Karimganj and also there is no explanation as to why the injured was taken and examined at different places. Accordingly it has been contended that the learned appellate Court has rightly acquitted the accused from the offence because of such infirmity in the prosecution case and serious doubt about the authenticity of allegation because of earlier enmity.

On the scrutiny of the evidence of PW-1 i.e. the informant who happens to be the sister-in-law of PW-2 it appears that from little distance, she saw that the accused person assaulted PW-2 while he tried to protest against their conduct to assault his wife. There is sufficient corroboration of the evidence of PW-1, PW-2, PW-3 and PW-4 to the fact that on the fateful day while PW-3 was repairing his bamboo fence the accused persons obstructed her from doing so and also abused her in bad language. Because of her raising protest she was assaulted by the accused and others and as soon as her husband PW-2 tried to approach the accused persons with a view to resist and save her husband was also badly assaulted by the accused Prashanta, prafulla , Rasendra Roy and Balendra.

PW-2 in his evidence specifically stated that the accused Dilip dealt  blow in his head and waist with mallet. Balaram assaulted on the entire body. His evidence sufficiently corroborated by other witnesses including PW-1 and PW-5. On the next, PW-2 was examined by PW-6 and PW-7 who were the medical officer of NF Railway Badarpur as well as Registrar Surgery SMCH. All of them have also supported that on 30.09.2000 PW-2 was taken to Badarpur Hospital to admit him with head injury at 19.30 hrs. He was immediately referred to SMCH vide Ext-2 is his report. PW-7 has also stated that he examined PW-2 in SMCH on 02.10.2000 and he found two injuries on his person, which has follows No. 1 and No. 2:

(1) The patient was unconscious and mild response to painful stimuli. Pulse was 64 B.P. 140/100 mm and with hurried respiration.

A three c.m. long stitched wound over left fronto parietal region was found in his body. The patient developed right side hameplagia.

On C.T. scan of brain revealed-

(2) Large extradural haematoma in the left fronto parietal region causing mass effect, splaying the frontal horns with midline shift to the right.

The injury No. 1 was grievous and the injury No. 2 was caused by blunt object.

As we found that there was no such material of omission and contradiction on the fact that the victim sustained injury for the assault made by the accused persons. Although, plea of enmity is taken in this case but in absence of any such doubtful situation except raising the plea could not destroy the credibility of the witnesses. Enmity is a double edged weapon which may raise the ground for filing false case or to raise the defence. The defence plea as regards the examination of the accused's injury at the Badarpur Railway Hospital to be a doubtful aspect is not sustainable in view of the fact that PW-2/injured is a railway employee which reveals from his evidence and the examination of PW-2 in the railway hospital is natural.

The findings of the learned appellate Court is found to be cryptic as it is based on own perception of Court. The Court has not proceeded in legal principle of law and failed to appreciate the fact. The observation of the learned appellate Court really shows a matter of concern when it says that during the evidence, some females were unnecessarily dragged into the incident solely for causing harassment. Similarly, findings of the learned appellate Court that medical officer failed to explain as to why injured was admitted in the railway hospital, so the evidence of both the medical officer is questionable. Such a finding without any proper reason is devoid of merit and liable to be discarded. There is no proper discussion about the evidence of all the witnesses including the cross-examination nor there is discussion about the argument put forward by the defence side and the entire decision has been rendered without proper appreciation of evidence on record, whereas the complicity of the present accused appellant was found apparent to hold the accused/respondent guilty u/s 325 of IPC.

Taking into account all above, the impugned judgment and order of the appellate Court is hereby quashed and set aside and the order of trial Court is hereby upheld and restore to file. However, taking note to the submission of learned counsel for the appellant that the matter is 19 years old and the accused was also behind the bar for a considerable period time, while maintaining the conviction u/s 325 of IPC, the accused is sentenced to period already undergone by him and also to pay a fine of Rs. 10,000/-, in default, SI for 3 months. The amount of fine be given to the injured namely Nani Gopal Roy as a compensation. Return the LCR.