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IN THE HIGH COURT OF GAUHATI
Paran Kumar Phukan, J.
Kamal Hazarika – Petitioner
Versus
State of Assam – Respondent
Crl. Rev. Pet. No. 761 of 2004
Decided On : 10-12-2015
For the Petitioners:G.N. Sahewalla, A.K. Goswami, Md. Aslam, B. Sharma and A. Jalan, Advocates.
For the Respondent: B.J. Dutta.
Headnote:
Indian Penal Code,1860 - Sections 326 and 320 - Evidence Act - Section 11 - Criminal Procedure Code, 1973 - Section 313 - Inflicted blows to him on lower part of his abdomen and pelvic region - Escort her to her house - Examination of accused – Appeal convicting - Case in a nutshell is that on evening - Injured was coming back to his house along with wife of accused petitioner, at her request to escort her to her house and when he was taking betel nut offered to him in her house, her husband arrived and inflicted blows to him on lower part of his abdomen and pelvic region and other parts of his body causing grievious injuries to him - Injured was brought to his home by one Dusu a neighbour from place of occurrence and thereafter, he was taken to Hospital by his brother - Trial commenced before learned Additional Chief Judicial Magistrate - Prosecution examined 4 witnesses including Medical Officer and Investigating Officer - Accused took plea that accused petitioner tried to commit rape on her and to protect herself, she inflicted the injuries to him - Plea of revision petitioner is that at relevant time, he was in his office and he was not involved and there have no scope to commit crime - Defence one witness has been examined by accused revision petitioner – Court have learned counsel appearing for revision petitioner and learned Additional Public Prosecutor, Assam and meticulously gone through entire materials placed before me - Learned counsel appearing on behalf of petitioner submits that at time of occurrence, accused petitioner was not at home and he was performing duty at Oil India Limited, Duliajan and he has been falsely implicated in case being husband – Held, Having heard learned counsel appearing for both sides and having gone through evidence on record and for all reasons as aforesaid, I do not find any infirmity in judgment passed by learned Sessions Judge convicting accused petitioner under Section 326 of IPC, as a consequence, impugned judgment is affirmed - Petitioner submits that offence was committed in year 1998 and more than 16 years have elapsed of commission of crime - It is next submitted that injured himself while adducing evidence expressed his desire to effect a compromise - On going through evidence of PW2 have found that he in fact wanted to compromise the case - From facts and circumstances of case, it appears that accused petitioner was annoyed on seeing his wife with injured and he caused injuries in a heat of passion and there was no premeditation - There was no previous enmity with accused petitioner - Neighbours residing in same village and they wanted to arrive at a compromise but it was not materialised as offence under Section 326 IPC is not a compoundable offence - Considering submissions and compromise arrived at between parties, facts and circumstances of case, age and antecedent etc. of accused petitioner, in my considered - Case to take a lenient view while passing sentence - Considering all aspects sentence accused to suffer Rigorous Imprisonment for 3 months and to pay fine to imprisonment for another 3 months. Fine, if realised shall be paid to injured as compensation - Accused petitioner is directed to surrender before learned Trial Court within 1 month from date of passing of order - Send down LCR along with a copy of this order to learned Courts below for information and necessary action
Paran Kumar Phukan, J.
1. Under assailment in this revision is the judgment and order dated 04.12.2004 passed by the learned Sessions Judge, Tinsukia in Criminal Appeal No. 28(2)/2004 affirming the judgment and sentence dated 20.05.2004 passed by the learned Additional Chief Judicial Magistrate, Tinsukia in G.R. Case No. 133/1998 convicting the accused petitioner under Section 326 IPC and sentencing him to Rigorous Imprisonment for 1 (one) year and to pay fine of Rs. 5,000/-, in default, to Simple Imprisonment for 15 (fifteen) days.
2. The factual aspects of the case in a nutshell is that on the evening of 30.01.1998, while the injured Mrinmoy Choudhry was coming back to his house at about 9.30 pm along with the wife of the accused petitioner, Hemanti Hazarika at her request to escort her to her house and when he was taking betel nut offered to him by Hemanti Hazarika in her house, her husband (accused petitioner) arrived and inflicted dao blows to him on the lower part of his abdomen and pelvic region and other parts of his body causing grievious injuries to him. The injured was brought to his home by one Dusu a neighbour from the place of occurrence and thereafter, he was taken to St. Luke's Hospital at Tinsukia by his brother Mrinmoy Choudhury.
3. In pursuance to FIR lodged by Mrinmoy Choudhury, Bordubi P.S. Case No. 13/1998 was registered and on completion of investigation Charge-Sheet was submitted against the revision petitioner and his wife Hemanti Hazarika.
4. Trial commenced before the learned Additional Chief Judicial Magistrate, Tinsukia. Prosecution examined 4 witnesses including the Medical Officer and the Investigating Officer. The accused Hemanti Hazarika took the plea that the accused petitioner tried to commit rape on her and to protect herself, she inflicted the injuries to him. The plea of the revision petitioner is that at the relevant time, he was in his office and he was not involved and there have no scope to commit the crime. In support of the defence, one witness has been examined by the accused revision petitioner.
5. I have heard the learned counsel appearing for the revision petitioner and the learned Additional Public Prosecutor, Assam and meticulously gone through the entire materials placed before me.
6. Learned counsel appearing on behalf of the petitioner submits that at the time of the occurrence, the accused petitioner was not at home and he was performing duty at Oil India Limited, Duliajan and he has been falsely implicated in the case being the husband of Hemanti Hazarika.
7. It is next contended that there are inherent infirmities in the testimony of the informant and the injured which renders the prosecution case unreliable. It was next contended that no grievious injury was sustained by the injured within the ambit of Section 320 of the IPC. There is no dispute regarding the injuries sustained by the injured PW2 in the house of the revision petitioner. The only question which is to be considered is whether PW2 was assaulted by the revision petitioner or his wife.
8. Since the accused petitioner has taken the plea of alibi, it would be pertinent to decide this aspect of the case. It is a settled proposition that the plea of alibi is admissible under Section 11 of the Evidence Act, when on facts, the plea is upheld, the Court is justified in taking the view that the accused had been falsely implicated. The burden lies on the accused to prove the plea of alibi and it must be proved to the hilt.
9. In the instant case to prove the plea, the accused petitioner has examined DW1 Hiren Ch. Bora, Senior Manager, Industrial Relation, Oil India Limited, Duliajan in which the accused petitioner was an employee. His evidence reveals that on that particular day, the accused petitioner was attending to his duty from 1 pm to 9 pm and in this regard, he issued the certificate, Ext. Ka. The attendance register Ext. Kha has also been produced during the trial which shows the presence of the acc
