Crl.A. 292/2003 BEFORE THE HON’BLE MR. JUSTICE H. BARUAH Heard Mr. A.M. Mazumdar, learned Senior counsel assisted by Ms. N. Saikia, learn ed counsel for the appellants. Also heard Mr. K. Munir, learned Addl.P.P for the State respondent. 2. All the appellants namely, Md. Abdul Khaleque, Md. Nurul Hoque, Nuri She ikh and Md. Mia Hussain were tried by the Sessions Judge, Darrang, Mangaldoi, un der Section 307/34, 323/34 and 325/34 of the IPC for attempting to commit murder of one Maharjan Begum (PW1), wife of Md. Hussain Ali (PW2) and voluntarily caus ing grievous and simple hurt to them on 22/3/2000 in the morning hours and after due trial, the appellants were convicted under Section 323 read with Section 34 as well as Section 325 read with Section 34 IPC and sentenced each of them to u ndergo rigorous imprisonment for one year and fine of Rs.500/-(five hundred) in default, further rigorous imprisonment for one month under Section 323/34 IPC an d also to suffer rigorous Imprisonment for 4(four) years and pay a fine of Rs.10 00/- each in default rigorous imprisonment for 2(two) months each under Section 325/34 IPC. Being aggrieved by and dissatisfied with the judgment and order of c onviction as indicated, all the appellants preferred the instant appeal challeng ing the legality and correctness of the judgment and order of conviction and sen tence passed by the Sessions Judge, Darrang, Mangaldoi. 3. The prosecution case as unfolded in brief may be projected as under:- On 22/3/2000, in the morning hours, all the appellants indicated herein before, trespassed into the house of Hussain Ali (PW2), and dragged out his wife (PW1) and other family members. The appellants thereafter assaulted them with d eadly weapons causing serious injuries but when hulla was raised, neighbouring p eople assembled who prevented all the appellants from resorting further assault. Narrating the facts, Hussain Ali (PW2) lodged an FIR (Ext 2) with Dalgaon Polic e Station and basing the same registered a case under Sections 147,148,149,325,3 07 IPC. Investigation commenced. The informant Hussain Ali (PW2) and his wife Ma harjan Begum (PW1) were referred to Mangaldoi Civil Hospital for medical examina tion and treatment. The Investigating Officer seized one spade, one pointed iron stick and a lathi from the place of occurrence. After due investigation of the case, the Investigating Officer laid the charge-sheet against all the appellants under Sections 448,323,325,307/34 IPC. Offence under Section 307 IPC being excl usively triable by the Court of Sessions, the case was committed for trial of th e appellants. The case was retained by the Sessions Judge himself and after hear ing the prosecution and defence, having found prima facie grounds to presume tha t the appellants did commit offences under Section 307/34, 323/34 and 325/34 IPC , charges under that Sections were framed against all the appellants to which, e ach of them pleaded not guilty when read over and explained and claimed trial. 4. To bring each of the appellants to book in the aforesaid charge prosecut ion examined 6(six) witnesses altogether including the Investigating Officer and the Doctor. Defence also examined one witness. The learned trial Court took 3 p oints for determination: (1) Whether the accused persons in furthernance of their common intention vo luntarily caused grievous hurt to Maharjan Bibi (PW 1); (2) Whether the accused persons in furthernance of their common intention vo luntarily caused grievous hurt to Hussain Ali (PW2); (3) Whether the accused persons in furthernance of their common intention at tempted to commit murder of both Hussain Ali and his wife, Maharjan Bibi. 4. Maharjan Begum, wife of Hussain Ali has been examined as PW(1) by the pr osecution, while her husband Hussain Ali has been examined as PW 2. Maharjan Beg um, in her evidence categorically stated that at the time of occurrence, she and her family members were all living in the land of Abdul Khaleque, one of the ap pellants, they being landless people. Appellant Khaleque sold land to some other persons in which there ensued a land dispute between them and appellant Khalequ e. On the date of occurrence, she was in the house of one Badsha. At about 8 AM, while she was having her meal, appellants Nurul and Mia Hussain came to the hou se and dragged her towards the backside of the house by pulling her hairs. Appel lant Nurul and Abdul Khaleque were at the place from before being armed with a p ointed iron rod and dagger. She also stated that the appellant Khaleque attempte d to deal a blow with a dagger on her head, however, on resistance the blow fell on her left hand and as a result, three fingers got injured. She also sustained injury on her head. Appellant Nurul was holding her hairs by his right hand and the remaining three appellants attacked her with dagger and lathi. On her cries , her husband Hussain Ali (PW2) came to the place of occurrence but he was also attacked by the appellants who also sustained injuries. So from the evidence of PW1, it can be noticed that a dispute regarding sale of land existed between the m and appellant Abdul Khaleque. Her evidence also goes to show that all the appe llants being together assaulted her, inflicting injuries on her person with dead ly weapon with sharp pointed iron rod, dagger, lathi etc. 5. PW 2 Hussain Ali, the husband is a daily wage earner. He deposed that he heard hulla towards the house of the appellant and being informed by a little g irl that his wife had been assaulted by the appellants, he rushed to the place o f occurrence and found all the appellants together attacking his wife near the h ouse of Badshah. He tried to prevent the appellants from further assaulting his wife but was unable to prevent them. He also stated further that Mia Hussain, on e of the appellants attacked him with pointed iron rod which caused injury above his eyes. Thereafter he was also attacked by Nurul with lathi. On being assault ed by the appellants, villagers removed them to Mangaldoi Civil Hospital where t hey were offered treatment and medically examined. The evidence of PW2 goes to s how that the appellants not only assaulted him but also assaulted his wife PW1 a s a result of which both of them sustained injuries for which they were to be re moved to Mangaldoi Civil Hospital for treatment. 6. Prosecution examined another witness namely, Dr. Jamini Sarmah of Mangal doi Civil Hospital as PW4 who deposed that on 22/3/2000, he examined PW1 and PW2 at Mangaldoi Civil Hospital. On examination of Maharjan Begum, (PW1), fracture of left 3rd, 4th and 5th metacarpel bones was detected. It was opined that injur ies suatained by PW1 were grievous in nature and caused by blunt weapon. She was admitted as indoor patient and was discharged on 31/3/2000. On examination of P W2, he also discovered multiple abrasions with lacerated injury over the left ey ebrow, which was simple in nature caused by blunt weapon and recent. PW4, Dr. Ja mini Sarmah, therefore, on examination of PW1 and PW2 discovered injuries on the person of PW1 and PW2. The evidence of PW4, therefore, appears to have lent sup port to the evidence of PW1 and PW2 in the context of sustension of injuries of their person. However, there appears a minor discrepancy in regard to the susten sion of injury on the head of PW1. Evidence of PW1 is however negated by Dr Sarm ah (PW4), who at no point of time divulged that he also discovered an injury on the head of PW1. This type of discrepancy cannot altogether wipe out the evidenc e of PW1 and PW2 in respect of sustension of injury as alleged to have been rece ived on account of assault on them by the appellants. Evidence of PW1 and PW2 ar e materially corroborated in material particulars by PW4, Dr. Jamini Sarmah who was then serving in Mangaldoi Civil Hospital as Medical Officer. So when the wit nesses are found corroborating each other in regard to a particular fact conside red as material, intrusion of a particular fact not discovered by PW4 cannot res ult non-acceptance of the evidence of PW1 and PW2. In other words, evidence of P W1 and PW2 are materially corroborated by PW4, the medical officer. 7. We have already indicated hereinbefore that the defence in support of i ts case also placed a witness to support its case. From meticulous scrutiny of t he evidence of DW1, it would appear to this Court that on the day of occurrence there had been a marpit in between the appellants and PW1 and PW2 in regard to l and dispute. Evidence of DW1 appears to have supported the case of the prosecuti on that on the day of occurrence, the appellants had resorted to assault on PW1 and PW2 which resulted injuries on their person for which they had to undergo tr eatment at Mangaldoi Civil Hospital. 8. The learned trial Court after meticulous examination of the records and the facts placed reasons that the facts and evidence appearing on the face of re cords do not justify or in other words cannot prove the charge under Section 307 of the IPC against the appellants. This Court while scrutinising the evidence on record and the judgment and reasonings offered by the trial Court finds and als o of the view that in the facts and circumstances of the case and evidence on re cord, conviction under Section 307 IPC would be an impossibility. Learned trial Court therefore refused to act on the basis of evidence on record. The learned t rial Court however after careful perusal of evidence on record, evidence of PW1, PW2 and PW4 in particular that such assault had taken place due to land dispute in between PW1, PW2 and appellants. The learned trial Court placed much relianc e and put emphasis in the evidence of PW1, PW2 and also on the evidence of PW4. On a conjoint a reading of the evidence of all the 3 witnessess as indicated, th e learned trial Court came to a finding that the assault was resorted to in furt herance of common intention. Since PW1 Maharjan Begum, wife of PW2 had received fracture on her left hand as a result of resistance put to the blow, which was a imed to her, she sustained fracture of metacarpel bones. The learned trial Court , therefore, on that ground convicted all the appellants under Section 323/34 an d 325/34 IPC and sentenced each of them to suffer Rigorous Imprisonment for 5 ye ars and fine of Rs.1000/- in default further Rigorous imprisonment for 2 months under Section 325/34 IPC. As PW2 Hussain Ali, husband of PW1, as opined by PW4, Dr. Jamini Sarmah received simple injuries on his person, the learned trial Cour t convicted each of the appellants under Section 323 IPC with the assistance of Section 34 IPC and sentenced to suffer Rigorous Imprisonment for one year and fi ne of Rs.500/- in default further Rigorous Imprisonment for one month. 9. Mr. A.M. Mazumdar, learned Senior Counsel for the appellants submits bef ore this Court that since such assault had taken place on account of land disput e between the informant party and the appellants and since all the appellants ar e maintaining good behaviour from the commencement of the trial and since they a re all along on bail, taking note of the injuries sustained by each of the injur ed, the sentence awarded by the learned trial Court may be suitably be reduced. In the context of reduction of the sentence, Mr. K.Munir, learned counsel for th e State respondent is also heard. Taking note of the facts and circumstances of the case and the evidence on record and the reason for such assault and other at tending circumstances, this Court is of the considered view that the reduction c annot be made in respect of the sentence awarded under Section 323/34 IPC. Howev er, taking note of the submissions of Mr. A.M. Mazumdar, sentence awarded under Section 325/34 IPC may warrant reduction. It would perhaps be justified if Rigo rous Imprisonment for 4 years is reduced to half i.e 2 years Rigorous Imprisonme nt. Sentence is accordingly reduced to 2 years Rigorous Imprisonment under Secti on 325/34 IPC. No interferance in respect of fine and default sentence. Sentence will run concurrently. Sentence is modified to the extent as indicated above. 10. Appeal is partly allowed. 11. Send back the records to the lower Court to take appropriate steps for s erving out the sentence by the appellants. 12. Appeal stands disposed of.