Kartik Das Vs the State of Assam

Heard Mr. D. Talukdar, learned counsel appearing for the petitioner. Also heard Ms. A. Begum, learned Additional Public Prosecutor, Assam appearing for the State respondent.

¶19

By way of this petition under Section 401 read with Section 397 of the Code of Criminal Procedure, 1973, the accused/petitioner is challenging the judgment and order dated 05.05.2010 passed by the learned Chief Judicial Magistrate, Kamrup, Guwahati whereby the accused/petitioner was convicted under Section 325 of the Indian Penal Code and sentenced to undergo simple imprisonment for a period of six months and a fine of Rs.5000/-, in default, to suffer simple imprisonment for another two months in G.R. Case No.3108/2008 and the judgment and order dated 15.09.2012 passed by the learned Additional Sessions Judge, Kamrup, Guwahati in Criminal Appeal No.32/2010 whereby the appeal filed by the accused/petitioner was dismissed upholding the aforesaid judgment and order of conviction of the Trial Court in G.R. Case No.3108/2008.

¶20

The brief facts of the case are that on 21.04.2008 at about 10:00 p.m. at night the informant/PW-1 was attending a meeting at the premises of Barpratima Mahkhuti Rajohowa Namghar wherein, all of a sudden, the accused/petitioner administered one blow with an axe over his left hand and caused serious injury. Accordingly, an F.I.R. was lodged whereupon Palashbari P.S. Case No.79/2008 was registered under Section 326/307 of the IPC. Upon completion of investigation the police submitted

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charge-sheet against the accused/petitioner under Sections 326/307 of the IPC. However, on appearance of the accused before the Trial Court and after examining the materials available the learned Trial Court framed charge under Section 325 IPC against the accused/petitioner.

¶23

During trial, the prosecution examined as many as six witnesses including the Medical Officer and Investigating Officer and the defence did not examine any witness and his case under Section 313 Cr.P.C. is a total denial.

¶24

On conclusion of the trial, the learned Trial Court convicted the accused/petitioner under Section 325 of the IPC which upon being assailed before the Appellate Court the same was upheld. Situated thus, the present Revision Petition has been filed.

¶25

Mr. Talukdar, learned counsel for the accused/petitioner submits that the evidence on record does not warrant the conviction of the accused/petitioner under Section 325 IPC. He further submits that the alleged weapon has not been seized and in any case the lacerated injury as stated by the Medical Officer cannot have been inflicted by an axe. He further submits that there is no cogent evidence to show that the accused/petitioner assaulted PW-1 with an axe as none of the witnesses who were present had seen the occurrence. He further submits that the ocular evidence of PW-1 that he was assaulted with an axe by the accused/petitioner is also inconsistent with the medical evidence of PW-5 the doctor who has clearly opined that PW-1 was injured with a blunt object. He accordingly submits that the conviction is totally erroneous in law and is liable to be set aside. He further submits that the

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learned Trial Court ought to have given the benefit of Probation of Offenders Act considering the nature of allegation and also the fact that he is a student and moreover there is no criminal antecedent. Alternatively, he submits that the six months sentence is excessive and the same may be adequately reduced.

¶28

Per contra, Ms. A. Begum, learned Additional Public Prosecutor submits that both the Trial Court and the Appellate Court has properly assessed and analysed the evidence on record and has recorded the finding of guilt against the accused/petitioner. Hence, the impugned judgment and order of the Trial Court and the Appellate Court warrants no interference by this Revisional Court. She further submits that neither the Trial Court nor the Appellate Court has committed any manifest irregularity or illegality in convicting the accused/ petitioner for the offence under Section 325 IPC. She further submits that the testimony of the injured witness i.e. PW-1 is corroborated with the other materials including the medical evidence.

¶29

I have given my prudent considerations to the arguments advanced by the learned counsels for both the contending parties and have also perused the material available on record.

¶30

It appears that PW-1 i.e. the informant-cum-victim Sri Labon Das has deposed that a meeting was held at the premises of the Namghar and accused/petitioner Kartik Das was sitting behind his back and he was sitting there with an axe in hand. When he moved back the accused/petitioner gave a blow on the left hand and then he fell down. Thereafter he rushed to Kamala Kalita’s house. The accused/petitioner also asked the people present in the meeting not to move.

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People present in the meeting saw the occurrence. Thereafter he was taken to hospital for treatment and on the way he met police. On the next day police asked him to lodge the ejahar. Ext-1 is the ejahar wherein Ext-1(1) is his signature. In his crossexamination PW-1 clarified that the meeting took place in the courtyard of the Namghar and about 19/20 persons attended the meeting and before assaulting him the accused/petitioner shouted not to move from their place and thereafter assaulted him.

¶33

Similarly, PW-2 Sri Ratneswar Das deposed before the court that he was also present at the meeting on the date of occurrence but he does not remember the date of occurrence. While the meeting was going on, somebody told them not to move and thereafter heard the sound of PW-1 shouting that he was assaulted and thereafter he was taken to Mirza Hospital for treatment. PW-2, however, stated that he did not see the occurrence himself with his eyes but later on heard about the incident from PW-1. In his cross-examination PW-2 clarified that the meeting was held in the light of lamp. Pw-1 shouted that he was assaulted and he fell down.

¶34

In his deposition before the Court PW-3, Sri Surjya Kanta Das deposed that he was also present at the meeting on the date of occurrence but he does not remember the date of occurrence. While the meeting was going on PW-1 shouted that he was assaulted and thereafter he was taken to Mirza Hospital for treatment. PW-3 has stated that he has not seen the occurrence himself with his eyes but heard about the incident from PW-1.

¶35

PW-4 Sri Dimbeswar Das deposed before the Court that he was also present at

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the meeting on the date of occurrence but he does not remember the date of occurrence. While the meeting was going on somebody told them not to move and thereafter heard the sound of PW-1 shouting that he was assaulted and thereafter he was taken to Mirza Hospital for treatment. In his cross-examination PW-4 clarified that PW-1 shouted that he was assaulted and he fell down but who had cut PW-1 he did not know and he did not make any attempt to know.

¶38

PW-5 Dr. K. Sharma, who is the Medical Officer in the instant case, deposed that he examined the victim on 21.04.2008 at about 11.45 p.m. at Mirza CHC and found one lacerated wound on the dorsal aspect of left upper arm. He found the injury was fresh and was bleeding and advised for X-ray on the left arm. Ext-3 is the injury report. PW-5 further opined that the injury was grievous in nature and caused by blunt object.

¶39

PW-6 Sri Kamal Ch. Bora is the Investigating Officer in the instant case. He deposed before the Court that he visited the place of occurrence, recorded the statements of the witnesses and searched for the accused/petitioner but he could not find the accused/petitioner and after collecting the medical report submitted charge-sheet showing the accused/petitioner as absconder. In his cross-examination PW-6 clarified that he did not find any blood stain in the dress of the victim and as such he did not seize it.

¶40

It appears that after completion of the prosecution witnesses, all the incriminating circumstances were put to the accused/petitioner under Section 313 Cr.P.C. wherein he merely denied the same and did not adduce any evidence

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whatsoever.

¶43

Upon careful examination of the evidence and the findings recorded by the learned Trial Court as well as the learned Appellate Court it appears that the testimony of the injured informant who have no reason to falsely implicate the accused/petitioner has been found consistent and natural. His statement that the accused/petitioner dealt a blow with an axe on his left hand finds due corroboration from the medical evidence showing a lacerated injury and a fracture which are consistent with a blow by a blunt portion of a weapon like an axe.

¶44

The fact that the said weapon was not recovered does not in the facts of the case create any reasonable doubt when the direct testimony of the injured witness stands corroborated by medical evidence and the attending circumstances. The other witnesses though not eye-witnesses to the assault have corroborated the immediate aftermath and presence of both the parties at the place of occurrence lending assurance to the prosecution case.

¶45

It is well settled that the revisional jurisdiction under Sections 397 and 401 of the Cr.P.C. is limited. This Court cannot re-appreciate evidence as a 3^rd Court of fact unless there is manifest illegality, perversity or miscarriage of justice. A careful perusal of the materials on record goes to show that there is no such infirmity or illegality in the concurrent findings of conviction recorded by the first two Courts.

¶46

As regards the sentence, the accused/petitioner has been sentenced to undergo six months simple imprisonment for the offence under Section 325 IPC which prescribes maximum punishment of seven years. Considering the nature of the injury,

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the weapon used and the circumstances of the occurrence, the sentence imposed cannot be said to be excessive or disproportionate.

¶49

For the foregoing reasons, this Court finds no illegality, impropriety or perversity

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in the impugned judgments warranting interference in revisional jurisdiction. The Criminal Revision Petition is, therefore, dismissed. The conviction and sentence of the accused/petitioner under Section 325 IPC as recorded by the two Courts below are hereby affirmed.

¶51

The accused/petitioner shall surrender to serve the remaining sentence, if any.

Return the TCR.

JUDGE

T U Choudhury

Comparing Assistant

Kartik Das v. the State of Assam

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Kartik Das v. the State of Assam

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