Meera Hira Vs State of Assam

The petitioner by way of instituting the present appeal has assailed the Judgment and Order dated 04.09.2013, passed by the learned Additional Sessions Judge No. 2, Kamrup, in Sessions Case No. 369 (K)/2011, convicting the appellant, herein, under Section 326 IPC and sentencing her to undergo Rigorous Imprisonment for 3 (three) years along with fine of Rs. 1,000/(Rupees One Thousand Only), in default, to suffer further Simple Imprisonment for 3 (three) months.

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The prosecution case in brief is that on 25.04.2009, one Jiten Hira had lodged an FIR before the Officer-In-Charge, Bijoynagar Police Outpost, inter alia, stating therein that on 24.04.2009, his elder brother, Sushil Hira was selling fish at Satpokholi Primary School Chowk Bazar. It was alleged therein that at around 06:30 pm, the appellant, herein, along with 4 (four) others had come there and the appellant, who was at the relevant point of time, carrying acid in a glass, had poured the same on the head of his elder brother and ran away. It was also alleged that one customer, namely, Uttam Das had also sustained injuries, on account of the said acid attack. It was further alleged that on account of the said offence committed by the appellant, herein, and 4 (four) others, an amount of Rs. 10,000/- and one mobile of his elder brother was missing.

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3.1. On receipt of the said FIR, Palashbari PS Case No. 80/2009, under Sections 147/149/307/379 IPC came to be registered.

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3.2. On conclusion of investigation in the matter, the Police submitted charge sheet under Sections 147/325/307 IPC, against the appellant herein and 4 (four) others. The matter, thereafter, came to be transferred to the Court of the learned Additional Sessions Judge (FTC) No. 3 and then to the Court of learned

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Additional Sessions Judge No. 2, Kamrup, Guwahati, for disposal.

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3.3. The learned Trial Court vide order dated 09.12.2011, framed the charges under Sections 147/307/379/149, against all the 5 (five) accused persons. The charge on being read over and explained to them, they had pleaded not guilty and claimed to stand trial.

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3.4. During the trial, the prosecution had examined 10 (ten) witnesses. On completion of the evidence of the prosecution, the accused persons were examined under Section 313 CrPC.

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3.5. The learned trial Court, on conclusion of the trial, by appreciating the evidences coming on record, was pleased vide Judgment and order dated 04.09.2013, to convict the appellant, herein, under Section 326 IPC. The other accused persons came to be acquitted in the matter. On the conviction of the appellant, herein, she was sentenced to undergo Rigorous Imprisonment for 3 (three) years and also to pay a fine of Rs. 1,000/- (Rupees One Thousand Only), in default, to undergo further Simple Imprisonment for 3 (three) months.

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3.6. Being aggrieved, the appellant has instituted the present appeal.

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Ms N S Thakuria, learned counsel for the appellant, by taking this Court through the evidences of the prosecution witnesses, has submitted that the evidences coming on record, had revealed that there was a prior case instituted in the matter by the appellant, herein, against the victim as well as his brother. She submits that the present case was instituted only on account of the grudge nursed by the victim and his family members against the appellant, herein. The learned counsel for the appellant has further submitted that the evidences brought on record does not reveal that it was the appellant who poured the acid

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upon the victim, inasmuch, as she was not identified to be an aggressor by any of the independent witnesses, examined by the prosecution in the matter. She submits that the victim and his family members had falsely implicated the appellant in the matter.

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The learned counsel for the appellant has further submitted that the appellant, during the trial, had taken a plea of alibi and it was projected that she was not at the place of occurrence, but was away to the house of her brotherin-law, Rantu Das, and had come back only after 4 or 5 days of occurring of the said incident. She submits that the defence witnesses who had adduced evidence in the matter, had also supported the said claim of the appellant, herein. She submits that the said claim made by the appellant, herein, was not considered in its proper perspective by the learned trial Court.

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In the above premises, the learned counsel for the appellant submits that the offence alleged against the appellant, admittedly not having been established beyond reasonable doubt, the Judgment and Order dated 04.09.2013, passed by the learned trial Court would mandate an interference from this Court.

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Mr B Sarma, learned Additional Public Prosecutor, appearing on behalf of the State, by referring to the evidences coming on record in the matter, has submitted that the fact that the appellant was the aggressor, was established from the evidences of PW-1 and PW-2 in the matter and their evidences were not dislodged by the appellant, herein, during their cross-examination by her.

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Mr Sarma submits that the medical evidence coming on record has corroborated the deposition made by the prosecution witnesses with regard to

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the injury sustained by the victim, and it also has been established that the injury was grievous in nature and was caused by acid burn.

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Mr Sarma has submitted that the plea of alibi as raised by the appellant in the matter was without any basis, inasmuch, as the prosecution witnesses were never confronted with the said issue during their cross-examination by the appellant, herein and the plea was only raised as an afterthought.

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In the above premises, Mr B Sarma, submits that the conclusions drawn by the learned trial Court in the impugned Judgment, being based on the evidence coming on record, would not call for an interference by this Court.

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I have heard the learned counsel for the parties and also perused the materials available on record.

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At the outset, it is to be noted that the learned trial Court, upon appreciating the evidences coming on record, had proceeded to draw a conclusion to the effect that the charges under Sections 147/309/379/149 IPC, against the accused persons, one Bhola Hira, Maina Hira, Biren Hira and Prafulla Hira, were not established and accordingly, they were acquitted from the charges and set at liberty. The said conclusion of the learned trial Court went viewed in the light of the evidence coming on record, cannot be said to be erroneous and would not mandate any interference.

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Having drawn the said conclusion, this Court, on perusal of the evidences coming on record in the enquiry finds that the PW-2, Robin Hira, who was along with the victim, selling fish in the victim’s shop, on the night of the occurrence, had identified the appellant, herein, as the aggressor in the matter and he had deposed that she poured liquid over the face of his brother, i.e., the victim,

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Sushil Hira. The nature of injury sustained by the victim was also brought on record by the PW-2, during his deposition.

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PW-4, Sideswar Das deposed that on the date of occurrence of the incident, he was bargaining for fish at the shop of the victim and at that point of time, a lady had come there, wearing churidar by covering her face with a churni with open eyes, and had poured some liquid on the face of Sushil Hira. He further deposed that a portion of the liquid had also fallen in his pant and as a result of which, his long pant was burnt.

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PW-5, Sri Sushil Hira, i.e., the victim of the case had deposed with regard to the pouring of water like substance on his face by the appellant, herein. He deposed that on the liquid coming into touch with the skin of his face, smoke had come out and he was rendered senseless. He, during his deposition, had deposed that he had identified the appellant, inasmuch, as her face was open and only head was covered by a scarf.

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CW-1, Uttam Thakuria, during his deposition, deposed that at the time of occurrence of the said incident, he was purchasing fish in the shop of the victim and at that time, someone had come to the said shop and had poured some liquid on the face of the victim and the victim had sustained minor injuries.

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PW-6 is the doctor, who had examined the appellant, herein. During his deposition, he had exhibited a medical report and had deposed that the injuries suffered by the victim were grievous and were caused by acid.

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The perusal of the evidences as adduced by PW-2, PW-4, PW-5, CW-1 and PW-6, would bring to the forefront that the appellant, herein was the aggressor and it was she, who had poured liquid like substance on the face of the victim,

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Sushil Hira, which was found to be acid. It is also proved beyond reasonable doubt that on account of the acid attack, the victim had suffered grievous injuries on his face, eyes, shoulder and forearm, and was also required to undergo plastic surgery. Accordingly, the evidences coming on record having established beyond reasonable doubt, the fact that the appellant, herein, had attacked the victim, herein, PW-5, Sushil Hira, by pouring acid on his face. The offence under Section 326 IPC stands established against the appellant, herein, beyond all reasonable doubt.

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The appellant, during the trial, had raised a plea of alibi. The said aspect of the matter was considered by the learned trial Court and had rejected the same. The learned trial Court in this connection had drawn the following conclusion:

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“ 35. Let me now consider the plea of alibi of the accused Mira Hira. By adducing evidence, accused side tried to prove that on the previous day of occurrence, i.e. 23.04.2009, Mira Hira went to the house of her sister and stayed there for about 4-5 days. To prove this plea defence side examined the accused Mira Hira, Prafulla Hira, the brother in law of Mira Hira and one villager, who allegedly went to the house of accused to purchase earthen pot and found Mira was absent in her house. From the defence evidence as narrated before, it appears that she went to village Palashbari. It may be noted here that the place of occurrence is at Satpokholi is also under Palashbari PS. It is in the evidence of DW that the distance of two place is at about 1½ KM only. In cross-examination, the DWs denied the prosecution suggestion of false plea of alibi. On minute reading of the evidence, it appears that the accused side has taken the plea of alibi without laying its foundation during cross-examination of. PWs. While cross-examining the PW 2 and 5, who have specifically deposed about presence of accused Mira Hira at the place of occurrence, the defence even did not put forward a single suggestion that on that day t presence of

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accused Mira was improbable as she was at his sister's house. No plea of alibi was taken during cross-examination of PWs. Hence, it can safely be presumed that it was an afterthought plea. Moreover, though plea of alibi was taken, it was no where stated that it was impossible for: Mira Hira to come to the place of occurrence from the house of her sister. It is now almost settled that plea of alibi must make the presence of accused improbable at the place of occurrence. In view of credible and reliable evidence of PW 2 and PW 5 regarding presence of accused Mira Hira at the place of occurrence on the date of occurrence, I reject the plea of alibi as neither proved nor acceptable.”

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A perusal of the said conclusions drawn by the learned trial Court with regard to the plea of alibi taken before it, by the appellant, herein, reveals that the same is reasonable and based on the evidences coming on record and accordingly, the same would not call for any interference. Accordingly, the plea of alibi taken by the appellant, herein, stands rejected.

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In view of the above conclusion, this Court upholds the conviction of the appellant, herein, under Section 326 IPC. Having upheld the conviction of the appellant, this Court notices that the incident had occasioned on 24.04.2009. Around 16 years have elapsed since the date of the said incident. The learned trial Court, while considering the sentencing required to be imposed upon the appellant, herein, had recorded as follows:-

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“ 52. During sentence hearing the accused Mira Hira has submitted that her marriage was fixed with another boy and scheduled to be held in the month of November, 2013 and her voice, gesture postures etc. were found apologetic for the crime committed by her. Presently, she is aged about 24 years as stated by her in her 313 CrPC statement. Considering the age of the convict, her future life, I am of the considered opinion that she deserves some leniency in sentence.”

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Having noticed the said factors as recorded in Paragraph-52 of the impugned Judgment, the learned trial Court had not considered as to whether, the appellant, herein, would be entitled to be extended with the benefits available to an accused under the provisions of the Probation of Offenders Act, 1958. This Court is of the view that consideration under the provisions of the Act of 1958, was mandatorily required to be extended to the appellant, herein, by the learned trial Court. A Court may not extent the benefit, in the given facts of a case, however, consideration must be given. No special reasons have been found to have been assigned by the learned trial Court for denying to extent to the appellant, herein, the benefits under the provisions of the Act of 1958. As noticed hereinabove, the offence was committed on 24.04.2009 and around 19 years have passed thereafter.

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It was stated at the Bar that the appellant, in the meantime, was married and was a mother of 2 (two) children. It is seen that both the appellant and the victim have moved on in their life, during the period that has elapsed after the occasioning of the incident on 24.04.2009. Further, the materials brought on record does not reveal that the appellant, herein, was involved in commission of a similar offence, either before 24.04.2009, or during the pendency of the proceedings initiated thereafter.

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This Court having upheld the conviction of the appellant by the learned trial Court, for the reasons as noticed in the foregoing paragraphs, is of the considered view that this is a fit case, wherein the benefit of the provisions of the Probation of Offenders Act, 1958, should be given to the appellant, herein. Accordingly, this Court extends the benefits under the provisions of the Probation of Offenders Act, 1958, to the appellant, herein, and accordingly, the

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sentence of imprisonment is modified to that effect and it is provided that instead of sending the appellant to jail, she should be given the benefit under Section 4 of the Probation of Offenders Act, 1958. This Court, having only modified the sentence pertaining to imprisonment, the sentence of payment of fine of Rs. 1,000/- (Rupees One Thousand Only), in default, to undergo further Simple Imprisonment for 3 (three) months, as imposed by the learned trial Court, is not being interfered with and the petitioner is required to pay the same.

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Accordingly, it is directed that the appellant, herein, will file 2 (two) sureties to the tune of Rs. 15,000/- (Rupees Fifteen Thousand Only) each, along with personal bond before the learned trial Court, i.e., the Court of the learned Additional Sessions Judge No. 2, Kamrup, and undertake to the effect that the appellant shall maintain peace and good behaviour during the period of 1 (one) year from the date of filing of the bond. The aforesaid bond be filed by the appellant, within a period of 1 (one) month from today. The appellant shall also, along with submission of the bond, deposit the fine amount, as required, hereinabove.

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With the above observations and directions, the present appeal stands disposed of.

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Send down the records to the learned trial Court, along with a copy of this Judgment and Order, for information and necessary action.

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JUDGE

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Meera Hira v. State of Assam

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Meera Hira v. State of Assam

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