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2007 Supreme(Gau) 477
GAUHATI HIGH COURT
H.N.Sarma, J.
Gulenoor Hussain Mazumdar and Anr. -Appellant
Versus
State of Assam -Resopndent
Criminal Appeal No. 89 of 2002
Decided On : 24-07-2007
A.S.Choudhury, J.M.Choudhury, M.Barbhuyan
Headnote:
IPC - Conviction under section 307/34 - [IPC 307, IPC 34] - The court found that the prosecution failed to prove the necessary ingredients of section 307 and section 34 of the Indian Penal Code. The evidence did not establish the accused's intention to cause death or the existence of a prior concert between the accused persons to commit the alleged criminal act. As a result, the court allowed the criminal appeal, set aside the conviction and sentence, and discharged the accused-appellants from the bail bond.
Fact of the Case:
The case involved an altercation between the accused persons and the injured over a loan repayment, resulting in the injured being pushed in front of a truck and sustaining a fractured leg. The accused were convicted under section 307/34, IPC.
Finding of the Court:
The court found that the prosecution failed to prove the necessary ingredients of section 307 and section 34 of the Indian Penal Code, as there was no evidence of the accused's intention to cause death or a prior concert between the accused persons to commit the alleged criminal act.
Issues: The key issues included the establishment of the accused's intention to cause death and the existence of a prior concert between the accused persons to commit the alleged criminal act.
Ratio Decidendi: The court held that the evidence did not establish the accused's intention to cause death or the existence of a prior concert between the accused persons to commit the alleged criminal act, leading to the allowance of the criminal appeal and the discharge of the accused-appellants from the bail bond.
Final Decision: The criminal appeal was allowed, the impugned conviction and sentence were set aside and quashed, and the accused-appellants were discharged from the bail bond.
2. Heard J.M. Choudhury, learned senior counsel assisted by Mr. A.M. Barbhuiya, advocate for the appellants and Mr. D. Das, learned P.P., Assam.
3. As unfolded, the prosecution story in brief is that on 25.11.19-98 at about 7 P.M. there was an altercation amongst the accused persons and the injured Ahmed Ali (PW 2) over sale of betel nut in the Bowarghat Market, village Bowarghat, P.S. Hailakandi and for non-repayment of the alleged loan by the injured. During the altercation the accused persons dashed PW 1 and caused him to fall under a running truck, as a result of which his left leg was fractured. The in tired was immediately taken to the Hailakandi Civil Hospital and from there he was shifted to Silchar Medical College Hospital. An FIR lodged by Sakat Ali (PW 1) on the next day, i.e., 26.11.1998, narrating the occurrences, on the basis of which Hailakandi P.S. Case No. 0365/98 under section 307/34, IPC was registered against the accuseds. Upon registering the case, the law of investigation was set into motion and the I.O. visited the place of occurrence, prepared Sketch Map of the place of occurrence and recorded statements of the witnesses and also collected the injury report from the Silchar Medical College Hospital. Upon completion of the investigation, there having found a prima facie case, the accuseds were charge-sheeted under section 307/34, IPC.
4. The case being triable by the Court of Sessions, was committed by the learned Magistrate to the Court of Sessions Judge, Hailakandi for necessary disposal. The learned Sessions Judge upon perusal of the necessary police papers filed under section 173, Cr.P.C and upon hearing the prosecution in defense framed charges against the accused persons under section 307/34, IPC and on being explained to them, they pleaded not guilty and claimed to be tried.
5. During the course of trial prosecution examined as many as 9 witnesses inducing the I.O. and the Doctor, whereas defence examined none. The defense plea is of total denial. After completion of the examination of the prosecution witnesses, they were examined under section 113, Cr.PC, pointing out the circumstances hat appeared against them during the course of trial to which they denied. Although both the accused took the plea that they have been implicated falsely due to existence of certain matrimonial differences between the elder brother of the injured and his wife who happens to be the sister of the accuseds.
The learned Sessions Judge, at the closer of the trial, held the accused persons guilty under section 307/34, IPC and accordingy, convicted and sentenced them in the aforesaid manner. Hence this appeal.
6. Supporting the appeal, Mr. J.M. Choudhury the learned senior counsel, referring to the statements of the various prosecution witnesses and other materials on record, submits that the impugned conviction and sentences imposed against the accused appellants is the result of total misappreciation of evidences and materials on record. The learned senior counsel further submits that none of the ingredients of section 307, IPC could be proved by the prosecution in the instant case nor section 34, IPC could be applied to secure their conviction.
7. Mr. D. Das, learned Public Prosecutor on the other hand submits that overwhelming corroborating evidences of the prosecution witnesses justify that the accused appellants are guilty under section 307/34, IPC and accordingly prayed for dismissal of the appeal.
8. As noted above, the prosecution examined as many as 9 witnesses to prove the case against the appellants.
