Crl.A. 309/2004 BEFORE THE HON’BLE MRS. JUSTICE ANIMA HAZARIKA JUDGMENT & ORDER (ORAL) This criminal appeal has been preferred against the judgment and order d ated 07.09.2004 passed by the learned Sessions Judge, Karimganj, in Sessions Cas e No.18/2003 convicting the accused appellant under Section 304 (Part II) of the Indian Penal Code (for short, IPC) and sentencing him to undergo Rigorous Impri sonment (RI for short) for 4(four) years and to pay a fine of Rs.1000/- under Se ctions 148/149 of the IPC, in default to undergo Simple Imprisonment for three m onths for each of the offences with the sentences running concurrently. 2. I have heard Mr. J Roy, learned counsel assisted by Mr. S Borthakur, Adv ocate appearing for the appellant. Also heard Mr. K Munir, learned Additional Pu blic Prosecutor, Assam. 3. The facts of the case briefly stated are as follows: An FIR was lodged by one Sri Bikash Kuri, on 11.02.2000 at about 2.30 PM to the effect that some miscreants numbering 12 (twelve) together with some oth ers came in a body being armed with sharp weapons, lathi etc., and attacked the first informant. One Madhusudan Kuri was also assaulted on his nose and face for which he had to be taken to the Ghungoor (SMCH) hospital for treatment. The mis creants also used bricks, lathis and deadly sharp weapons as a result of which o ne Suranjan Banik @ Bappi received serious injury and one Raju Kuri was also inj ured on his nose and chest. The first informant was also attacked by a knife. Th e miscreants even proceeded near the house of said Madhusudan Kuri but they were prevented from doing so by some local persons who came there hearing the ’Halla h’. The said incident took place near the Yuba Samaj Club. On receipt of the FIR a case was registered against the accused persons being Karimganj P.S. Case No. 61/2000 under Sections 147/148/149/324/341 /325/326 of IPC. 4. During the course of investigation, the aforesaid Madhusudan Kuri died a t the SMCH on 12.02.2000. After completion of investigation, charge sheet was su bmitted by the Investigating Police Officer against the accused appellant and 11 other accused persons under Sections 147/148/149/325/326/304 A of the IPC. The case being triable by the Court of Sessions, the same was committed to the Court of Sessions by the Chief Judicial Magistrate, Karimganj, wherein the Sessions C ase No.18/2003 was registered. The charges being read over and explained to the accused persons they pleaded not guilty and claimed to be tried. 5. The prosecution proceeded to examine its witnesses and it was after the examination of the medical officer as well as the first informant Bikash Kuri (P W 2) that a petition under Section 319 of Cr.P.C., was filed by the prosecution for inducting two more accused persons namely Pranab Dey and Monoj Chanda @ Milo n after some evidence appeared against them and it was thereafter that the parti es were heard and the said two persons were arrayed as accused in the said case. 6. During the course of trial, 10(ten) witnesses including the first inform ant, one of the injured, two medical officers and the investigating police offic er were examined by the prosecution. After completion of the prosecution witness , statements of accused persons were recorded under Section 313 Cr.P.C., wherein they denied their involvement in the case. The defence declined to adduce any e vidence. 7. After hearing the learned counsel appearing for the parties and upon per usal of the evidence on record, the learned trial Court vide judgment and order dated 07.09.2004 convicted and sentenced the accused as indicated hereinabove. 8. Challenging the aforesaid judgment of conviction, the instant criminal a ppeal has been preferred by one of the accused i.e., the Present appellant on th e grounds set forth in the appeal memo. Mr. Roy, learned counsel for the appella nt has submitted that the learned trial Court has failed to appreciate the evide nce on record in its proper perspective and arrived at an erroneous finding whic h resulted in serious miscarriage of justice and as such the judgment and order of conviction and sentence of the accused appellant is liable to be set aside. M r. Roy has further submitted that there are serious contradictions in the eviden ce of the prosecution witnesses which the learned trial Court has failed to take into consideration and hence the learned trial Court has committed an error of law and facts in brushing aside the serious discrepancies in the evidence of the prosecution witnesses. More so, from the depositions of Gour Hari Biswas (PW 4) , Raju Kuri (PW 5), Mithu Roy (PW 6), Bappi Banik (CW 1) and Narayan Kuri (CW 2) , it becomes crystal clear that though each of them corroborated the statement p ut forward by the PW 2, but there appears a vast differences in their statements so far as the name of the accused appellant is concerned. If one of the said PW s named some of the accused, the others named some other, thereby contradicts th e statements made by the aforesaid witnesses. But the learned trial Court withou t giving any heed and weightage to the said fact, convicted the accused appellan t thereby requiring to interfere with the impugned judgment and order of convict ion and sentence. 9. Per contra, Mr. K Munir, learned Additional Public Prosecutor, Assam has submitted that the learned trial Court after meticulous examination of the evid ence on record and the materials available has passed the impugned judgment and order which is not liable to be interfered with in the instant appeal. 10. In view of the submissions made by the learned counsel appearing for the parties, let us now discuss the evidence adduced by the prosecution witnesses. 11. Bikash Kuri (PW 2), who filed the FIR (exhibit 2) stated that on the dat e of occurrence, he was standing along with his brother Raju Kuri (PW 5), one Ma dhusudan alias Hari Kuri, one Gour Hari Biswas (PW 4), one Bappi @ Suranjan Bani k (CW 1) and one Narayan Kuri (CW 2) and some others near the Yuba Samaj Club si tuated at Charabazzar at Karimganj town when the accused namely Barun, Apu, Bapo n, Pranab, Raju (son of Nitai), Biju, Raju (son of Bhagbat), Bikash and Monoj @ Milon came there and assaulted Raju Kuri. Those accused were intercepted and sen t away by Narayan Kuri and Bappi Banik. Raju Kuri started bleeding from his nose and mouth. He was then sent to the hospital by Narayan Kuri. Five to Ten minute s thereafter the said accused persons with some others came running towards them being armed with lathi, rod etc., and started pelting stones to them from a lit tle distance. While Madhusudan Kuri was assaulted by Raju Das (son of Nitai), (i .e., the present appellant), Pranab Dey, Raju Das (son of Bhagbat) Sanjib Das an d Babul Paul by means of lathi as a result of which Madhusudan fell down on the ground. Other accused also assaulted Bappi Banik, who had tried to rescue Madhus udan. Gour Hari Biswas was also assaulted by Karuna and some others and thereaft er the accused left the place. 12. Statement of Gour Hari Biswas (PW 4), Raju Kuri (PW 5), Mithu Roy (PW 6) , Bappi Banik (CW 1) and Narayan Kuri (CW 2) also corroborated the statements ma de by Bikash Kuri (PW 2) in the material particulars except some minor contradic tions. PW 2 named all together 12 out of the 13 accused, whereas the PW 4 named eight of them without mentioning the names of Bapon, Barun, Apu, Monoj and Sanji b. The PW 5 named two of the accused without mentioning Bikash, Monoj, and Sanji b. PW 6 named seven of the accused but had not named Apu, Bapon, Bikash, Monoj @ Milon, Sanjib, Babul and Karuna. PW 7 named only four accused namely Raju (son of Nitai), the present appellant, Biju, Apu and Karuna. CW 1 named five accused namely Barun, Pranab, Raju (son of Nitai) and Raju (son of Bhagbat) while CW 2 n amed nine accused without mentioning the name of Apu, Bikash, Sribash and Milon. From the above, it has become clear that all the PWs have mentioned the name of the present appellant. 13. Regarding injury caused by some sharp weapon or other weapons, from the evidence on record it would reveal that altogether five persons were hurt in the incident who were examined at the Karimganj Civil Hospital by Dr. RN Das, PW 3. Madhusudan received haematoma and laceration on the head who was later on refer red to the SMCH where he succumbed to his injuries. All his injuries were opined to have been caused by blunt weapons. Bappi Banik had received tenderness on hi s chest and back being caused by blunt weapon and Bikram Kuri had received abras ion over the eyebrow and tenderness over the left shoulder which were caused by blunt object. Raju Kuri got his lower lip swollen which was also caused by blunt object and the abrasion of Gour Hari over his left forearm and his tenderness o n the chest were also simple in nature being caused by blunt object and therefor e considering all the injuries mentioned hereinabove, the learned trial Court in stead of convicting the appellant including the present appellant under Section 324 IPC altered the same under Section 323 IPC for voluntarily causing simple hu rt. 14. From the evidence of PWs as well as CWs, as discussed hereinabove, it wo uld reveal that all the prosecution witnesses in the unison has deposed that the present appellant alongwith others have caused injuries to the victims. Upon pe rusal of the evidence on record, I have found the same trustworthy and there is no contradiction so far the present appellant is concerned. All the witnesses ha s specifically mentioned the name of the present appellant as the son of Nitai w ho had assaulted the victims, as there are two accused persons by the same name, one Raju Das (son of Nitai) i.e., the present appellant and another Raju Das (s on of Bhagbat). In so far the present appellant is concerned, all the witnesses/ PWs have mentioned the present appellant as the son of Nitai. Therefore, there i s no doubt about the presence of the present appellant in the group of miscreant s, more so, there are six eye witnesses (PW’s 2, 4, 5, and 6 and CW’s 1 and 2) w ho have stated on oath before the Court that Raju Das son of Nitai i.e., the pre sent appellant gave a stroke on the head of Madhusudan alias Hari Kuri, for whic h he fell down and other miscreants attacked him in the body. However, the learn ed trial Court was of the opinion that there was no intention to assault Madhusu dan alias Hari Kuri not to speak of killing him and also taking into considerati on the age of the accused appellant i.e., 22 years of age on the date of occurre nce, the learned trial Court has passed the aforesaid conviction, convicting the accused appellant under Section 304 (Part II) only for four years. 15. The totality of the facts and circumstances emerging out of the evidence of all the witnesses discussed above, leave no room for doubt in my mind that a long with other accused persons, the appellant was instrumental in causing death of Madhusudan alias Hari Kuri, though without any intention to kill him and for the same the learned trial Court has convicted the accused appellant as aforesa id. Therefore, I find no reason to interfere with the judgment of conviction imp ugned in this appeal. 16. In the result, the appeal is dismissed affirming the judgment and order dated 07.09.2004 passed by the learned Sessions Judge, Karimganj, in Sessions Ca se No.18/2003. 17. Send down the lower Court records forthwith.