Crl.A. 171/2002 BEFORE HON’BLE MR. JUSTICE H.N.SARMA The conviction and sentence imposed upon the appellants by the learned Sessions Judge, Kamrup, in Sessions Case No. 269(K)/1999, under Sections 307/325/34 IPC a nd sentencing them to undergo R.I. for 3 years and to pay fine of Rs. 1000/- eac h in default further R.I. for 2 months under Sections 307/34 IPC and to undergo R.I. for 2 years and to pay fine of Rs. 500/- each in default further R.I. for 1 month under Section 325/34 IPC directing to run the sentences concurrently, is the subject matter of challenge in this Criminal Appeal. 2. I have heard Mr. J. M. Choudhury, learned senior counsel assiste d by Mr. D. Talukdar, learned counsel for the appellants. Mr. D. Das, learned Ad dln. Public Prosecutor has represented the State of Assam. 3. The prosecution case was set into motion on the basis of an FIR lo dged by one Sri Nandalal Chetri on 19.9.99 with the O.C. Khetri Police Station. In the said FIR it has been alleged that on that day at about 9 A.M. while his y ounger brother went in search of his goat with two minor children and was taking rest under a tree, the accused persons namely Moni Baishya, Babul Baishya and Saru Orang who were hiding there, attacked his brother Deepak Chetri with dao an d lathi thereby causing injuries on his body. Due to the attack the victim becam e unconscious. Seeing the victim in such a situation, the nearby people intimat ed the Police and the brother of the victim Sri Nandalal Chetri lodged the FIR w ith the O.C. of Khetri Police Station. Upon receipt of the said FIR, police reg istered Khetri P.S. Case No. 152/1999 under Sections 341/326/307/34 IPC and inve stigated the same. The I/O recorded the statements of the witnesses under Sectio n 161 Cr. P.C, got the victim examined by the doctor, seized materials and after having found a well established prima facie case, submitted charge-sheet agains t the accuseds. The case being triable by the court of sessions, the learned Mag istrate committed the case to the court of Sessions Judge, Kamrup for trial, whe rein it was registered as Sessions Case No. 269(K)/1999. 4. On the basis of the materials submitted by the I/O under Section 1 73 Cr. P.C. and upon hearing both prosecution and defence the trial judge framed charges against the accused person under Sections 341/326/307/34 IPC and the ch arges having been read over and explained to the accused-persons they denied the same and claimed to be tried. During the course of trial prosecution examined as many as 7 PWs including the I/O and doctor. After closer of the prosecution evidence, the accused persons were examined under Section 313 Cr. P.C. bringing to their notice the circumstances that appeared against them to which they deni ed. No defence witness was examined by the accused. 5. At the end of trial, the learned trial Judge convicted the acc used persons under Sections 307/34 IPC and sentenced them in the manner indicate d above. Challenging the said judgment, the present appeal is filed by the accus ed appellants. 6. During the course of argument, Mr. J.M. Choudhury, learned senior counsel referring to the statement of the PWs submits that in the instant case no offence under Section 307 IPC could be proved by the prosecution and accordin gly the conviction and sentence under Section 307 IPC cannot be sustained. The l earned counsel further submits that the offence under Section 325/34 IPC also ca nnot be said to be sustainable on proper appreciation of evidence and materials on record. 7. Mr. B. Gogoi, learned Addl. P.P. has however refuted the submissions made on behalf of the appellants and supporting the impugned judgment submits t hat the prosecution has been able to prove the case beyond reasonable doubt agai nst the accused persons. The learned P.P. further submits that although there is some doubt as regards the commission of offence under Section 307/34 IPC but th ere is a clear cut established case under Section 325/34 IPC against the accused persons. 8. The submissions of the learned counsels have led me to scrutinise the evidence of the prosecution witnesses and other materials so produced by the prosecution. Now let us examine all the prosecution witnesses adduced in this cas e. Altogether seven PWs were examined by prosecution. PW 1 is the Doctor who was serving as Registrar of Surgery in the de partment of Gauhati Medical College on 19.9.99, on which date he examined the vi ctim Deepak Chetri. In his deposition, he stated that on examination he found th e following injuries on the person of the victim - a) Two Deep cut wound in front of parital area of sizes 2 x 4 x 1 cm and 2 x 1 x 2 cm ; b) swelling and tenderness on right fore-arm with fracture injury on r ight ulna. In his opinion he stated that injury No. (a) was caused by sharp cut weapon and simple in nature whereas injury No. (b) was caused by blunt weapon a nd grievous in nature. The doctor was not cross- examined by defence and hence his evidence goes unchallenged. PW 2 is the elder brother Shri Nandalal Chetri, who lodged the FIR. In his depos ition he duly proved the FIR lodged by him as Ext- 1 and Ext -1(1) being his si gnature. He stated in this deposition that at the time of occurrence he was at J agiroad and having heard about the occurrence from somebody he immediately retur ned home and came to know that all the 3 accused persons assaulted the victim ca using injuries on his person by means of a dao and lathi, the victim was taken t o the medical college hospital and he found the victim lying in hospital with in jury on his head and hand and on being asked, the victim told that the accused p ersons injured him by means of a dao and lathi and he immediately lodged an FIR in the police station. PW 3 is Deepak Chetri, the injured. He himself is the only eye witness to the oc currence. He stated that on the date of occurrence at 9 A.M. while he al ong with 2 small boys went in search of his goat and were taking rest under a tr ee, at that time all the 3 accused persons attacked him with dao and lathi causi ng injuries on his head and hand and he became senseless. Somebody took him to t he Medical College Hospital and there he regained sense. During his examination, defence tried to elicit certain contractions with his statement recorded before the I/O during the course of investigation, but he denied the same. He further denied the suggestion that he has falsely implicated the accused persons. PW 4 is one Shri Niroda Baishya, PW 5 Shri Bhupen Chandra Medhi and PW 6 Shri G irindra Baishya who were the seizure witnesses of a dao and a lathi seized by I /O vide Ext- 2 seizure list. PW 4 turned hostile and he was cross-examined by prosecution and he stated in hi s deposition that the seizure of the dao and lathi have not been made in his pre sence. He proved the Ext- 2, the seizure list and Ext- 2(1), Ext- 2(2) and Ext- 3(3) as the signatures of PW 4, PW 5 and PW 6 respectively. PW 7 is the I/O of the case. On the date of occurrence he was serving in the Khe tri Police Station one Shri Holi Ram Bora was the O/C who after registering the case arrested the accuseds and seized a dao and lathi vide ext- 2 seizure list and entrusted to him the case for investigation. He investigated the case thorou ghly and during investigation sent the victim to hospital for treatment, recorde d the statement of the witnesses and after completion of the investigation and c ollecting medical report and having found prima facie case against the accused-p ersons submitted charge-sheet against them. 9. From the aforesaid evidence of the aforesaid witnesses, it is fo und that the crux of the prosecution case is that while the injured Deepak Chetr i was taking rest under a tree on the fateful day all the accused persons attack ed him with dao and lathi, as a result of which he was injured. Out of the 3 inj uries sustained by the victim only one is grievous injury i.e. fracture on his r ight ulna, other injuries being simple in nature. There is no other eye witness to the occurrence except the injured himself. 9. Referring to the aforesaid facts juxtaposing with the evidence o f Pws, the learned senior counsel submits that the aforesaid acts do not attract commission of an offence punishable under Section 307 IPC, inasmuch as, had the re been any intention to cause death of the injured by the three accused persons armed with sharp weapon and lathi, they could have easily committed the said of fence but they did not do so. They only inflicted injuries out of which only one is grievous, and this is sufficient indicative fact that they had no such inten tion to cause death of the victim. 10. In order to commit an offence punishable under Section 307 IPC p rosecution must establish that the act caused by the accused was done with inten tion or knowledge and under such circumstances if by that act the accused had ca used death of the injured, he would be guilty of murder. The nature of injury a nd the circumstances under which the injuries were caused do not justify to come to the conclusion that the accused persons had the intention or knowledge to co mmit such act. If they had any such intention they could have caused death to th e victim instead of injuring him. The evidence of PW 3 is very specific to the effect that while he was taking rest under a tree, the accused no. 3 attacked him with dao and lathi. Had there been any such intention of the accused to cause such injury they have caused death to the victim. Except PW 3 there is no other witness to support of the said fact. PW 2, the brother of the victim, who lodged the FIR has not seen the occurrence and other PWs 4, 5 and 6 are seizure witnesses, and PW 1 is the doctor where PW 7 is the I/O. 11. In view of the aforesaid circumstances the submissions of Mr. Cho udhury, learned senior counsel, that prosecution has failed to prove that the ac cused had any intention to cause death of the injured to attract the offence und er Section 307 IPC has got sufficient force. So far the conviction of the accused under Section 325 IPC is concerned, the same relates to punishment for voluntarily causing grievous hurt. Grievous hurt is defined under Clause 7 of Section 320 IPC and hurt which cau sed fracture due to dislocation of bone or tooth is also defined as grievous hur t. Section 322 of the IPC prescribes that whoever voluntarily causes hurt, if the hurt which he intends to cause or knows himself to be likely to cause is grievous hurt, and if the hurt which he causes is grievous hurt, is said volun tarily to cause grievous hurt . The evidence of PW 3 is very specific that the accused persons attacked him with dao and lathi. In the circumstances under which the injured was attack ed with dao and lathi clearly demonstrates the fact that the accused had the int ention to cause grievous hurt of such intensity otherwise they would have not us ed such weapons. The dao and lathi used in commission of offence was also seized by the I/O. From the evidence of PW 1, the doctor, we find that the injury no. (b) causing f racture of the right ulna of the injured was caused by blunt weapon and the blun t weapon in the instant case was a lathi used by the accuseds. 12. In view of the aforesaid evidence, the conviction of the accused under Section 307 IPC cannot be said to have any basis and prosecution failed t o prove the offence punishable under Section 307 IPC. On the other hand, prosecu tion has been able to prove the offence punishable under Section 325/34 IPC agai nst the accused persons by clear, cogent and impeachable evidence and accordingl y they were rightly convicted under Section 325/34 IPC by the learned trial judg e. 13. At this stage, Mr. Choudhury submits that the accused persons we re behind the bar for the period of 26 days during the course of investigation i .e from 29.9.99 to 25.10.99 and they were on bail during the course of trial and did not misuse the liberty. Even after the conviction, the learned Sessions Jud ge allowed them to obtain necessary order of bail from the High Court or suspens ion of sentence. In such a situation, the leaned senior counsel prays that the s entence of imprisonment may be confined to period undergone and if considered ne cessary the fine may be enhanced. Also heard Mr. Gogoi, learned P.P. on this po int. 14. The punishment prescribed under Section 325 IPC is that whoever vo luntarily causes grievous hurt shall be punishable with imprisonment of either description for a term which may extend to seven years and shall also be liable to fine. No minimum sentence is prescribed. 15. In the instant case the accused appellants were in custody for 26 days during the course of investigation as submitted by Mr. Choudhury, learne d senior counsel, which is also revealed from record. 16. Upon considering the entire facts and circumstances of the case and taking note of the submissions made by the learned counsels appellants are s entenced to undergo imprisonment for the period already undergone and to pay fin e amounting to Rs. 12,000/- in default to undergo further R.I. for 2 months. 17. Consequently the appellants are acquitted of the offence under Sec tion 307 IPC and their conviction under Section 325/34 IPC is maintained but the sentence of fine is modified to the extent indicated above. The appellants shal l be jointly and severally responsible to pay the fine amount. 18. The fine imposed shall be paid to the victim Deepak Chetri, PW 3. The fine amount shall be paid within a period of 2 months from the date of rece ipt of a certified copy of this order, failing which the accused appellants will be required to serve out the sentence so imposed on them. 19. The appeal stands allowed to the extent indicated above. Regi stry is directed to transmit the LCR forthwith.