Crl.A. 244/2004 BEFORE THE HON’BLE MRS. JUSTICE ANIMA HAZARIKA This appeal is directed against the judgment and order dated 8.9.2004 pa ssed by the learned Sessions Judge, Darrang, Mangaldai in Sessions Case No.40(DM )/2003 convicting the accused appellant under Section 307 of the Indian Penal Co de (’IPC’ for short) and sentencing him to undergo rigorous imprisonment (’RI’ f or short) for five years with a fine of Rs.1,000/- in default, RI for another on e month, further directing that the fine amount on realization shall be given to the injured as compensation. 2. The prosecution case in brief is that on 17.8.2002 at about 7 PM while D ipankar Bhatta was returning home from his shop, the accused appellant stabbed h im on his forehead. Sustaining injury he fell down on the road and he was therea fter taken to the hospital for treatment. The father of the injured, Sri Dharani Bhatta lodged an FIR before the Officer-in-Charge (’O/C’ for short) Harisinga P olice out post and the same was recorded under GD Entry No.273 and sent to the O /C of Paneri Police Station for registering a case. Accordingly, Paneri PS Case No.72/2002 under Sections 341/326/307 IPC was registered. Police started investi gation and after completion of investigation, submitted charge sheet against the accused under the aforesaid sections showing him absconder. 3. The case being triable by the court of Sessions, the same was committed to the court of learned Sessions Judge, Darrang, Mangaldai by the learned Magist rate. The learned Sessions Judge upon perusal of the record with relevant docume nts framed charges against the accused under Sections 307/324 IPC. The charges b eing read over and explained to the accused, he pleaded not guilty and claimed t o be tried. 4. During trial, prosecution examined as many as seven witnesses including the Medical Officer and one Investigating Officer to bring home the charges leve led against the accused. The defence plea is of total denial. However, the defen ce examined one witness to substantiate its plea. It is the case of the defence that the injured sustained injury by himself falling on the road with gas cylind er carried by him in his bicycle. The learned Sessions Judge considering the evi dence of prosecution as well as defence witnesses and the statements of the accu sed recorded under Section 313 Cr.PC has convicted and sentenced the accused as aforesaid. Hence the instant appeal. 5. I have heard Ms. S Deka Choudhury, learned counsel appearing for the app ellant. Also heard Mr. K Munir, learned Additional Public Prosecutor, Assam for the State respondent. 6. Ms. Deka Choudhury, learned counsel for the appellant has submitted that the prosecution has failed to prove the charges against the appellant and there fore, his conviction under Section 307 IPC cannot be sustained. Further submissi on of Ms. Deka Choudhury is that though the appellant was convicted on the basis of evidence of three eye witnesses but the record would reveal that except the injured himself others have not seen the actual assault and therefore, the convi ction of the accused on the basis of the statements made by those witnesses cann ot be sustained. 7. The learned Additional Public Prosecutor, on the other hand, submits tha t the learned trial Court after meticulously examining the evidence of prosecuti on witnesses as well as the defence witness and other materials available on rec ord including the injury report has convicted the accused which may not be inter fered with by this Court in this appeal. 8. In view of the submissions so made by learned counsel appearing for the parties, let us now discuss the evidence adduced by the prosecution as well as t he defence witnesses for coming to the conclusion as to whether the accused had assaulted the victim and thereby caused injury to him. 9. PW 1, Sri Dharani Bhatta is the father of the injured Dipankar Bhatta, w ho had lodged the FIR. He has stated that on the date of occurrence at 7 PM he w as coming from his shop to his residence. On his way to his home, he was informe d by his eldest son that Dipankar had been assaulted in the village road. He rus hed to his home and met Dipankar and saw injury in the head of Dipankar. Dipanka r was unconscious at that time. Dipankar’s friend told him that accused had assa ulted him with a dagger. Then the injured was taken to Harisinga hospital where the doctor made some stitches on his injury. Later on, Dipankar told him that ac cused had assaulted him but he could not say by which weapon he was assaulted. During cross-examination, PW 1 stated that he lodged the FIR on the next day of the occurrence. Dipankar was taken to the hospital and he was released f rom the hospital at 10 PM on the same day. He has further stated that he heard f rom the people that Dipankar was assaulted by a dagger. But there was no other i njury except the head injury. The injury was 2 x1 . On that day, Dipankar was co ming with a gas cylinder in his bicycle. PW 1 has stated that he was not told th at Dipankar got injury while falling with the cylinder. 10. PW 2 is the injured Dipankar Bhatta, who has stated that on the date of occurrence at about 7 PM, he was coming from Harisinga with a gas cylinder in hi s bicycle. The accused front of his house stopped him and asked him about the CD cassette which he had taken from Dipankar. They had some altercation with regar d to the cassette and thereafter, the accused inflicted a blow on his head with a dagger type weapon. He raised alarm and Ratul, Bulon and Madhab, who were near by came running and took him to the hospital. He became senseless after the inci dent and regained his senses at hospital during treatment. He further stated tha t on that night itself he was released from the hospital. During cross-examination, PW 2 has stated that he was coming with a full gas cylinder and the accused rebuked him for ten minutes before assaulting him with a sharp weapon. He has further stated that he was not aware that the accuse d would inflict him injury and for that he was not ready. He could not stop the accused from inflicting him. 11. PW 3 is Ratul Deka, who is alleged to be eyewitness. But, PW 3 has state d that on that day, he saw the altercation taking place between the accused and the injured but he could not say as to with what weapon the accused had inflicte d injury on the person of the injured. However, the other suggestions put to him have been denied. 12. PW 4 is the doctor who served as Medical and Health Officer at Harisinga hospital and on 17.8.2002 he examined the injured and found the following injur y: (i) There was fresh blood on his head and clothes. There was a strai ght clean lacerated wound of about 2 in length and 1/4th in wide on the middle of the frontal region of the scalp. The wound was fresh. It was simple injury b y blunt weapon. Ext-2 is his report. Ext-2(1) is his signature. During cross-examination, PW 4 has stated that such injury might be caus ed by dashing against hard substance. 13. PW 5 is Hemanta Deka who has also stated in unison with that of PW 3. Th ough he is said to be an eyewitness but he had not seen the occurrence. He was a lso not aware as to with what weapon the injured was assaulted by the accused. During cross-examination, PW 5 has stated that he had not seen the actual incide nt of assault but coming to the place of occurrence he found the injured lying i n the gravel road. 14. PW 6 is Bulon Debnath. He has stated that he had not seen the assault. During cross-examination, he has stated that the injury might be caused by falli ng down from the bicycle. 15. PW 7 is the Investigating Officer (I.O for short) who has investigated t he case, recorded the statements of the witnesses and submitted the charge sheet , showing the accused as absconder. 16. Sri Ramesh Das, DW 1 has stated that the incident occurred in front of h is home, at about 6-7 PM and at that time, he was sitting in the verandah of his house. He saw the injured and the accused discussing something and thereafter h e heard the injured saying I will see you and by saying that he went with forc e in the bicycle and for that he fell down in the gravel road and got injured. H e has further stated that the injured had a full gas cylinder in the back side o f the bicycle. The injured was thereafter taken to the hospital. The other sugge stions put to him have been denied. 17. After completion of the prosecution witnesses, statement of the accused was recorded under Section 313 Cr.PC wherein he has categorically stated that an altercation took place on the date of occurrence but he had not assaulted the i njured. He has further stated that when he rebuked the injured regarding the CD which was taken from him by the injured but did not return it, the injured fled away and then he fell down on the road and sustained injury. 18. The accused has further stated that on that day the injured was carrying a gas cylinder in his bicycle. The learned trial Court on the basis of the abov e evidence on record has convicted the accused under Section 307 IPC. However, w hile considering the case of the appellant, the court did not take into consider ation the evidence adduced by the defence witness on the ground that the defence evidence did not appear to be fit in the facts and circumstances of the case an d therefore, his evidence was not considered, the same being not acceptable. Whi le convicting the accused the learned trial Court has considered mainly the evid ence adduced by PWs 2, 3, 5 and 6. Challenging the judgment of conviction, learn ed counsel for the appellant has vehemently urged that the evidence relied upon by the prosecution have not conclusively proved that the accused appellant was t he actual perpetrator of the alleged crime and therefore, the impugned judgment and order is liable to be set aside. The learned counsel has further submitted t hat the learned trial Court has misconstrued the evidence on record while convic ting the accused appellant under Section 307 IPC, inasmuch as, PW 1, who lodged the FIR alleging that on 17.08.2002, at about 7 PM, while Dipankar was coming ho me from Harisinga the accused appellant stabbed him with a dagger on his forehea d whereas in his deposition, he has stated that he had not seen the occurrence b ut the same had been reported to him by some persons, is not corroborated by the evidence of PW 4, the Doctor. The doctor has stated in his evidence that the in jury is simple in nature and caused by blunt weapon and therefore, it can be saf ely inferred that the prosecution has not come with the true version of the stor y and the learned trial Court ought not to have convicted the accused on the bas is of the evidence of the prosecution witnesses, more particularly, PWs 2, 3, 5 and 6. Learned counsel has also submitted that the prosecution has failed to pro ve the motive of the accused appellant in commission of the alleged crime and no n seizure of any weapon or any blood stained clothes from the place of occurrenc e or from the respondent cast a doubt as to the authenticity of the prosecution story. Hence, the learned counsel prayed that on this ground alone the impugned judgment and order is liable to be set aside and the accused appellant be acquit ted from the charge under Section 307 IPC. 19. I have gone through the evidence of the witnesses both prosecution as we ll as the defence. After meticulous examination of the witnesses adduced by the parties, it would reveal that the witnesses in unison have stated that on the da te of occurrence an altercation took place between the accused and the injured b ut there is no eyewitness with regard to the assault on the injured by the accus ed appellant. Nobody has seen the offence weapon including the injured. The inju red has clearly stated that he has not seen with what weapon he had been assault ed. On the other hand, the Doctor, PW 4 has categorically stated that the injury was simple and caused by blunt weapon. During cross-examination, PW-4 has stated that the injury might have bee n caused due to fall on the gravel road. All these circumstances together only l ead to the conclusion that there is no justification to convict the accused unde r Section 307 IPC as there is no intention or overact to cause grievous injury w hich may likely to cause death. However, considering the evidence on record alon g with the evidence/opinion of the Doctor (PW 4) and the injury report as well a s the evidence of the victim, prosecution has been able to make out a case under Section 323 of the IPC. Hence, I am of the opinion that the learned Session Jud ge erroneously convicted the accused appellant under Section 307 IPC and the sen tence imposed on the accused appellant was uncalled for. 20. On consideration of the above, this Court considers it to be necessary t o interfere with the conviction and sentence passed by the learned trial Court a nd modify the conviction and sentence accordingly. The conviction is altered to one under Section 323 IPC. 21. The accused is sentenced to undergo RI for 6 (six) months in default RI for a month. 22. The appeal is accordingly partly allowed by altering the conviction and sentence as indicated hereinabove. 23. The learned counsel for the appellant at this stage submitted that the a ppellant should be given the benefit of the provisions of Section 360 Cr.PC, kee ping in view of his age at the relevant point of time and also the fact that mor e than 9 years have been elapsed from the date of occurrence also considering th e fact that the appellant was all along on bail during trial as well as after co nviction. But nothing has been brought on record to show that he has ever misuse d the benefit of such order or about not maintaining good conduct. According to the learned counsel, the learned trial Court has not discussed anything about ex tending the benefit of the said provisions of law to the accused appellant, thou gh the Court has a duty to record special reason for not invoking the provision of the Code. The learned Additional Public Prosecutor has also fairly submitted that in a given case, the Court is bound to consider the provisions of Section 3 60 Cr.PC. 24. While considering the case under Section 360 Cr.P.C., this Court has the privilege to go through a decision reported in AIR 1982 SC 783 (Om Prakash and Ors. Vs. State of Madhya Pradesh) wherein the Apex Court held as follows: We think that having regard to the facts and circumstances of the pres ent case and particularly in view of the facts that the offence of which the app ellants have been convicted is one under Section 323 IPC, it would meet the ends of justice if the appellants are not sent to jail but are released on probation under Section 360 (1) of the Code of Criminal Procedure, 1973. We accordingly a llow the appeal on the question of sentence, set aside the sentence of imprisonm ent imposed on the appellants and direct that each of the appellants be released on his entering into a bond in the sum of Rs.500/- with one surety for the like amount to appear and receive sentence when called upon during a period of six m onths and in the meantime, to keep the peace and be of good behaviour. 25. The Apex Court in A.P. Raju Vs.State of Orissa, reported in 1995 Supp.(2 ) SCC 385 on a similar situation has extended the benefit of Section 360 Cr.PC a nd released the appellant therein on entering into a bond with one surety to kee p good conduct and be of good behaviour, keep peace for a period of one year fro m the date of execution of such bond. 26. Keeping in view the provisions of law and the decisions rendered by the Apex Court and taking into consideration the age, character and antecedent of th e appellant and also the fact that the appellant is the first offender, in consi dered opinion of this Court, it would meet the ends of justice that instead of s ending the accused appellant to jail at this stage, he may be released on probat ion under Section 360 (1) Cr.PC., of good conduct on executing a bond. 27. Therefore, while confirming his conviction, set aside sentence of impris onment imposed upon the appellant and direct that the appellant be released on p robation of good conduct on his executing a bond for a sum of Rs.1,000/- (Rupees one thousand) only to the satisfaction of learned Chief Judicial Magistrate, Da rrang, Mangaldai, supported by two solvent sureties each of the like amount, to keep good conduct and be of good behaviour for a period of one year from the dat e of execution of the bond. 28. Accordingly, I direct the appellant to execute a bond to that effect. Su ch bond shall be executed by the appellant within 8(eight) weeks from today. The accused appellant shall further undertake that in the event of breach of any co ndition of the bond or otherwise called upon by the Court for receiving sentence to appear before the Court as and when called upon to do so. 29. Send down the lower Court record.