Crl.A. 291/2004 BEFORE THE HON’BLE MR. JUSTICE C.R. SARMA This appeal is directed against the judgment and order, dated 18-10-04, passed b y the learned Sessions Judge, Teen Sukia. By the impugned judgment and order, th e learned Sessions Judge convicted the appellant for the offence under Section 3 23 and 353 of the Indian Penal Code (for short, ’IPC’) and sentenced him to suff er rigorous imprisonment for two months and pay fine of Rs.1,000/-, in default, suffer rigorous imprisonment for another fifteen days for his conviction under S ection 323 IPC and rigorous imprisonment for six months and pay fine of Rs.1,000 /-, in default, suffer rigorous imprisonment for another period of fifteen days for his conviction under Section 353 IPC. Both the sentences were directed to ru n concurrently. Aggrieved by the said judgment and order, the convict person, as appellant, has come up with this appeal. 2. I have heard Mr. D. Talukdar, learned counsel appearing for the appellant. Also heard Mr. B. S. Sinha, learned Addl. Public Prosecutor appearin g for the State. 3. The prosecution case, as revealed during the trial, may, in brie f, be stated as follows : 4. On 28-12-02, at about 5 pm, at Dibrugarh market, when the infor mant, who was a Head Constable of police, was performing the traffic duty near D igboy bus station, noticed that the appellant had parked his vehicle in a no pa rking zone . Therefore, he asked the appellant to remove his vehicle from the sa id no parking zone , but the appellant assaulted him after snatching away the b aton from his hand. Due to the said assault, the informant who was on public dut y, sustained lacerated injuries on his head. On being so assaulted by the appell ant, the said Head Constable, as informant, lodged an FIR with the Officer-in-Ch arge, Digboy police station. On receipt of the said FIR, police registered a cas e under Sections 353/325/307 IPC. At the close of the investigation, police subm itted chargesheet against the appellant under Sections 353/323/307 IPC. As the o ffence under Section 307 IPC was exclusively triable by the court of Sessions, t he learned SDJM, Margherita committed the case to the court of Sessions and the learned Sessions Judge framed the charges under Sections 353/323/307 IPC. The ch arges, were read over and explained to the appellant, to which he pleaded not gu ilty and claimed to be tried. In order to prove their case, the prosecution exam ined as many as five witnesses including the Medical Officer (PW 2) who examined the injured and the Investigating officer (PW 5). At the close of the evidence for the prosecution, the accused person was examined under Section 313 CrPC. The accused person denied the allegations, brought against him and adduced two witn esses in support of his plea. His plea was that when he was taking tea in the ho tel of one Ram Sevak Shau, the informant, who was a Havildar of police, demanded Rs.200/- on the ground that he had parked his vehicle in no parking zone . Acc ording to the appellant, as he declined to declined to meet the said demand, the informant had assaulted him on his forehead, causing injuries to his person. He further stated that when he tried to save himself from the hands of the said Ha vildar, the latter had fallen down a result of which he sustained injury on his head. Considering entire evidence on record, the learned Sessions Judge convicte d and sentenced the appellant as indicated above. 5. Mr. B. Talukdar, learned counsel, appearing for the appellant, t aking this court through the evidence, on record, has submitted that the prosec ution failed to establish the charges under Section 323 and 353 IPC and that th e learned Sessions Judge committed error by convicting and sentencing the appell ant. The learned counsel has also submitted that there is sufficient evidence, o n record, to show that the informant had initially assaulted the appellant and t hat in the scuffle, which took place between the informant and the appellant, th e appellant sustained the injuries by falling on the ground. The learned counse l has also submitted that the occurrence took place on 28-12-02 and that the app ellant has already suffered much hardship both mentally and economically during the last nine years and as such, for ends of justice, a lenient view may be take n in respect of the sentence awarded against the appellant. 6. Mr. B. S. Sinha, learned Addl. Public Prosecutor, supporting the impugned judgment and order has submitted that there is sufficient substantive evidence against the appellant and as such the learned Sessions Judge committed no error requiring interference with the impugned conviction and sentence. 7. In order to appreciate the arguments, advanced by the learned co unsel for both the parties and to examine the correctness of the impugned judgme nt and order, I feel it appropriate to, briefly, scan the evidence on record. 8. Mr. Dina Chetri who deposed as PW 1 is an independent witness. H e was a driver by profession. According to this witness, when he was sitting wit h the appellant in a hotel named, ’Sah’ situated at Digboibazaar, the informant entered the hotel, in drunken condition and started beating the appellant. He fu rther stated that a scuffle had taken place between the informant and the appell ant and due to of the said scuffle, the informant had fallen down and sustained the injuries. Though this witness was cross-examined on behalf of the defence, n o contradiction could be elicited from his evidence. From the evidence of this w itness, it appears that he declined to support the prosecution version. 9. PW 2 is the Medical Officer, who examined the informant. Accordi ng to the Medical Officer, a lacerated wound, over the parietal region, measuri ng 5 X 4 X 4 cm and another lacerated would, on the vault of scalp, measuring 6 X 4 X 4 cm were found on the person of the informant, namely, Sri Hema Saikia. T he Medical Officer opined that the injuries were fresh and simple in nature. He opined that the injuries were caused by blunt impact. In his cross-examination, this witness opined that the said injuries could be sustained due to falling als o. From the evidence of the said Medical Officer, it is established that the inj ured sustained lacerated injuries on his head i.e on parietal region and vault o f the scalp. Therefore, the prosecution version that the injured sustained injur ies in connection with the said occurrence, involving the appellant, stands esta blished. 10. Sri Druna Kanta Gohain, a constable of police, deposing as PW 3 stated that when he was performing his duty, he heard hue and cry and rushed to the place of occurrence. This witness stated that he saw the appellant assaultin g Havildar Hema Saikia in the market. He further stated that he had intervened a nd separated both the appellant and the informant. This witness was cross-examin ed on behalf of the defence, but no material contradiction could be elicited to render his evidence disbelievable. From the evidence of PW 3, it is found that t he appellant had assaulted the informant. 11. PW 4 is the injured person, who lodged the FIR. The said injured , in his evidence, given as PW 4, clearly stated that, when he was performing tr affic duty, he requested the appellant to remove his vehicle from the said ’no p arking zone’, but the appellant had threatened him and assaulted by snatching hi s baton. According to this witness, he was hit on his head. He further stated t hat he was taken to the Digboi Civil hospital for medical treatment. He has exhi bited the FIR, lodged by him, as Ext.3 and his signature, thereon, as Ext.3/1. 12. PW 5 is the Investigating police officer, who submitted chargesh eet at the conclusion of the investigation. From the examination of the Investig ating officer, no material contradiction could brought out to demolish the evide nce, given by the prosecution witnesses, more particularly, PW 3 and PW 4. 13. Sri Chandan Shahu, who deposed as DW 1, stated that an altercati on had taken place between the informant and the appellant and that the informan t had assaulted the appellant with his baton as a result of which there was blee ding from the forehead of the appellant. 14. The appellant i.e the accused person examined himself as DW 2. I n tune with the evidence of DW 1, he stated that he was assaulted by the informa nt and that he sustained injuries on his forehead. 15. A careful reading of the evidence, adduced by both the parties, reveals two versions of the occurrence. According to PW 3 and PW 4, the appellan t had assaulted PW 4 i.e the informant, causing injuries on his head. This versi on of the prosecution has been supported by the medical evidence given by PW 2. But according to PW 1, who was a driver by profession, the informant ( PW 4) i.e the police constable assaulted the appellant (DW 2), who also a taxi owner-cum -driver. According to DW 1, DW 2 i.e the appellant, on being assaulted by the in formant, had sustained injuries on his forehead. But there is no medical evidenc e in support of the defence plea that the appellant had sustained any injuries i n the said occurrence. That apart, according to PW 1, both the police personnel i.e PW 3 and PW 4 had assaulted the appellant, i.e the accused. But according to the appellant, who deposed as DW 2, Hema Saikia (PW 4), i.e the informant had a ssaulted him. Supporting the DW 2, DW 1 also stated that he was assaulted by the Havildar i.e PW 4. In view of the said contradiction, on material point, the ev idence of PW 1 that both the police constables i.e PW 3 and PW 4 had assaulted t he appellant is not free from doubt. The learned Sessions Judge also while appre ciating the evidence, on record, refused to rely on the evidence of PW 1 on the ground that he, being a driver and a colleague of the appellant, was an interest ed witness and as such his evidence was not trustworthy. There can be no dispute that, in a case where the counter claim of sustaining injury at the hands of the informant and the informant also brings allegation of assault, causing injury by the accused person, it is always safe to look for medical report in support of the injury, if any, alleged to be susta ined by the parties. In the present case, though the appellant and the DWs claim ed that the appellant sustained injuries, on being assaulted by the informant, n o medical evidence, in support of such claim could be adduced. On the other hand , the prosecution has substantiated its claim, by adducing medical evidence (PW 2), that the injured (PW 4) sustained injuries. Therefore, there is force in the prosecution version. In view of the above contradiction, I am of the considered opinion tha t the learned Sessions Judge committed no error by refusing to rely on the evide nce of PW 1. Further, as there is no medical evidence in support of the injury a lleged to be sustained by the appellant, the evidence of PW 1, DW 1 and DW 2 tha t PW 3 and PW 4 had assaulted th DW 2 i.e the appellant is also not believable. Therefore, the evidence of DW 1 and DW 2 does not inspire confidence to believe that the appellant was assaulted by PW 3 and PW 4. It has also been noticed that there is no contradiction between the evidence of PW 3 and PW 4. Their evidence regarding the injury sustained by the injured i.e PW 4 has been fully supported by the medical evidence i.e the evidence of PW 2 who examined the injured on th e date of occurrence itself. In view of the above, there is no reason to disbeli eve the evidence rendered by PW 3 and PW 4. 16. Considering the facts and circumstances of this case and the evi dence of PW 3, coupled with the medical evidence, given by PW 2, I find no diffi culty in holding that the prosecution could establish, beyond all reasonable dou bt that the appellant had assaulted PW 4, who was performing public duty as a co nstable. Therefore, in my considered opinion, the learned Sessions Judge committ ed no error by convicting the appellant under Sections 323 and 353 IPC. The learned Sessions Judge, while awarding the sentence directed the app ellant to suffer rigorous imprisonment for two months for his conviction under S ection 323 IPC and pay fine of Rs.1,000/- and suffer rigorous imprisonment for six months and pay fine of Rs.1,000/- for his conviction under Section 353 IPC. Admittedly, the injured sustained simple injuries. The occurrence took place on 28-12-02. Certainly, during the last nine years, while facing litigation at vari ous stages the appellant has suffered, both mentally and economically. Consideri ng entire aspect of the matter and the suffering already undergone by the appell ant, I am of the opinion that no fruitful purpose would be served by requiring t he appellant to suffer imprisonment for a short period of six months at this bel ated stage. 17. Therefore, in my considered opinion, sentence in the form of fin e would meet the ends of justice. Therefore, while upholding the impugned convic tion, I find it to be a fit case to modify the sentence. Accordingly the sentenc es of rigorous imprisonment for two months for his conviction under Section 323 IPC is modified requiring the appellant to pay fine of Rs.1,000/- instead of und ergoing the imprisonment for his conviction under Section 323 IPC. Similarly, th e sentence of rigorous imprisonment for six months with fine of Rs.1,000/- is al so modified requiring the appellant to pay fine of Rs.2,000/-. It is made clear that no interference is made in respect of the sentence awarded with regard to d efault of payment of the fine amount as indicated above. 18. With the above modification in respect of the sentences, the app eal is partly allowed. The fine amount, as ordered, shall be deposited with the learned Sessions Judge, Tin Sukia within two months froms this date. Return the lower court records immediately.