Point of Law: Appeal against acquittal - only in exceptional cases where there are compelling circumstances and the judgment in appeal is found to be perverse, the appellate court can interfere with the order of the acquittal.

JUDGMENT :

M. R. Pathak, J.

We have heard Mr. Z.Alam, learned counsel appearing for the appellant and Mr. H. Sarma, learned Addl. Public Prosecutor, Assam appearing for the respondent No.1. Also heard Mr. S. C. Biswas, learned counsel appearing for the respondent Nos. 2 to 7, acquitted accused persons.

2. This appeal is against acquittal and lesser sentence of the accused persons passed by the learned Sessions Judge, Karimganj on 23-05-2014 in Session Case No. 90/2011, having filed by the appellant, father of the informant of the case that has arisen out of Karimganj PS Case No. 547/2008. By the impugned judgment and order, the respondent Nos. 2 to 7, the accused persons of the case, were convicted under Section 325/34 IPC and sentenced to rigorous imprisonment for a period of six months with a fine of Rs.3,000/-each and in default, to undergo further rigorous imprisonment for a period of one month. The accused persons were also convicted and sentenced to undergo simple imprisonment for a period of two months with fine of Rs. 1,000/-each, u/s 323/34 IPC, in default to further undergo simple imprisonment for a period of 15 days, with the observation that all the sentences will run concurrently.

3. The appellant herein, is aggrieved, as the learned trial judge did not convict and sentence the accused persons i.e. the respondent Nos. 2 to 7 under section 304 Pt. II but also gave a lesser punishment. The learned trial judge should have considered the injury sustained by the son of the appellant, which were grave in nature and the accused persons should have been convicted u/s 304 Part-II IPC and should have been given more severe punishment.

4. Brief facts of the case are that on the night of 16-10-2010 during the Nabami day of Durga Puja, the deceased along with his elder brother and friends entered the restaurant, namely, Labuchi restaurant at new market Masjid Road and ordered for some platters (chicken biryani) But as there was a delay to provide the same, they wanted to leave and on the request of the manager of the restaurant, they accepted to have two plates of the same. While eating, in one of the plate, they found a hair and while leaving the restaurant they refused to pay for the said plate, which was objected by the manager and then altercation took place between the deceased, his elder brother and friends along with the manager and the employees of the said restaurant and both the parties assaulted each other. During such assault, the brother of the PW 4, the victim, sustained head injuries and was taken to the Karimganj Civil Hospital, where he died next day in the morning hours. The doctor of the hospital then directed the elder brother of the deceased first to report to the police about the incident and accordingly, the present appellant, father of the deceased, lodged the FIR of the case pertaining to Karimganj PS Case No. 547/2010. The I.O. of the case accordingly investigated the matter.

5. To prove the case the prosecution examined 11 prosecution witnesses but the accused persons in the defence did not examine any witness. However, they cross-examined the prosecution witnesses and after closure of the evidence of the prosecution witnesses, their statements were recorded by the learned trial judge under Section 313 CrPC, wherein they denied the acquisition made against them the prosecution.

6. While going through the evidence of the prosecution witnesses, we have noticed that the PW.4, the brother of the deceased, in his examination-in-chief categorically stated that it was the accused Dheeraj with a thick lathi struck on the head of his younger brother, the deceased. The autopsy doctor PW 8 in his evidence deposed that the death of the deceased was due to severe internal haemorrhage leading to shock and damage to brain matter. Said PW.8 in his evidence also adduced that there are deep bruise in left turn lateral aspect of size 3’’ x 3’’ and the injuries were depressed fracture in the right parietal area of the scalp wi