Criminal Appeal No.1269 of 2010

15th September, 2015.

Petitioner Counsel: Mr. AZIM H. LASKAR, Mr. SACHIN DAS, Mr. ABHIJIT SENGUPTA
Respondent Counsel: Mr. NAVNIT KUMAR for M/s. CORPORATE LAW GROUP

Cases Cited:
Jitender Kumar Vs. State of Haryana, 2012 ALL SCR 1890=(2012)6 SCC 204 [Para 15]

JUDGMENT

JUDGMENT :- This appeal is directed against the judgment and order passed by the High Court of Assam at Guwahati in Criminal Appeal No.67 of 2002, dated 20.10.2009. By the impugned judgment and order the High Court has partly allowed the appeal of the respondent-State herein and has convicted and sentenced the appellant-herein for the offences punishable under Sections 325 and 447 of the Indian Penal Code, 1860 (for short, "the IPC").

2. The brief facts of the prosecution case are that on 20.02.1996 at about 8:00 p.m. an altercation took place between the informant's son and the accused persons. Thereafter the fourteen accused persons including the appellant-herein trespassed into the informant's house armed with weapons including dao and lathi and assaulted her family causing grievous injuries. The appellant assaulted PW-2 with the blunt side of a dao and caused fractures on the left side ribs. Thereafter, when the injured persons were taken to the hospital for treatment, the accused persons set fire to the house of the informant causing damage to the extent of Rs.25,000/-. A First Information Report was registered on the basis of the written complaint lodged by the informant.

3. After the completion of the investigation, charge-sheet was filed against the accused persons for the offences punishable under Sections 147, 447, 323, 325 and 436 of the IPC. Since the case was triable exclusively by the Sessions Court, the case was committed to the Court of Sessions Judge, Morigaon. Thereafter, the accused persons appeared before the Sessions Judge and after both sides were heard, charges were framed. The charges were read over and explained to the accused persons who pleaded not guilty. Accordingly, the case was committed to Trial.

4. In order to substantiate the charges framed against the accused persons, the prosecution examined eight witnesses including the informant, the injured persons, the Medical Officer and the Investigating Officer. After the completion of prosecution evidence, the statements of the accused persons were recorded under Section 313 of the Code of Criminal Procedure, 1973 (for short, "the Code") wherein the accused persons pleaded innocence and denied all allegations leveled against them. No evidence was led in defense of the accused persons.

5. Upon a detailed examination of the entire evidence on record, the Sessions Judge held that the statements made by the witnesses before the Investigating Officer and before the Sessions Judge were inconsistent with each other and this rendered their testimonies unreliable. Further, the Sessions Judge held that the police had failed to seize the arms alleged to have been used by the accused persons and to produce those before the Sessions Judge. Accordingly, by its judgment and order dated 31.08.2001, the Sessions Judge held that the prosecution had failed to establish its case beyond reasonable doubt, and acquitted the accused persons of the offences punishable under Sections 147, 447, 323, 325 and 436 of the IPC.

6. Being aggrieved by the said judgment and order passed by the Sessions Judge, the respondent-State preferred an appeal before the High Court. The High Court has examined the material on record including the judgment and order of the Sessions Judge and has held that the evidence of the prosecution witnesses before the Sessions Judge was consistent and cogent on the point that the appellant assaulted PW-2 with the blunt side of a dao causing fractures to left side ribs. However, the High Court has agreed with the reasoning of the Sessions Judge so far as the injuries sustained by the other prosecution witnesses are concerned, and has held that there was no clear, cogent and unimpeachable evidence to come to a definite finding.

7. Accordingly, the High Court has convicted the appellant for the offences punishable under Sections 325 and 447 of the IPC. However, the High Court has observed that the incident took place in the year 1996 and the appellant was set at liberty by the Sessions Judge by its judgment and order dated 31.08.2001, and in that view of the matter leniency ought to be shown to the appellant. Accordingly, the High Court has sentenced him to undergo rigorous imprisonment for a period of six months, and also to pay a fine of Rs.5,000/-, and in default to undergo rigorous imprisonment for three months for the offence punishable under Section 325 of the IPC, and further, to pay a fine of Rs. 300/-, and in default to undergo rigorous imprisonment for 15 days for the offence punishable under Section 447 of the IPC. The High Court has confirmed the judgment of acquittal passed by the Sessions Judge in respect of all the other accused persons other than the appellant.

8. Being aggrieved by the said judgment and order passed by the High Court, the appellant is before us in this appeal.

9. We have heard learned counsels for the parties to the lis.

10. The learned counsel for the appellant would assail the judgment and order passed by the High Court and would inter alia submit that the High Court has failed to notice that the appellant was not named in the First Information Report lodged by the informant, and the persons who were named in the First Information Report have all been acquitted by the Sessions Judge and their acquittal has been confirmed by the High Court. The learned counsel would further submit that the appellant has been convicted on the basis of the testimonies of interested witnesses, and no independent witnesses were examined by the prosecution.

11. The learned counsel for the appellant would also submit that no weapons were seized by the police and non-seizure would cast fatal doubt on the entire case of the prosecution. The learned counsel would further submit that there was no medical report to establish that PW-2 suffered grievous injuries. Apart from arguing on merits of the case, learned counsel for the appellant would pray for reduction in the sentence imposed on the appellant in view of the facts that the incident took place in the year 1996 and the appellant had been subject to criminal proceedings for almost nineteen years.

12. Per contra, the learned counsel appearing for the respondent-State would support the judgment and order passed by the High Court.

13. After carefully going through the judgments and orders passed by the High Court and the Sessions Judge as well as the material on record, we are of the considered opinion that the evidence of the prosecution witnesses proves beyond reasonable doubt that the appellant assaulted PW-2 with the blunt side of a dao causing fracture of left side ribs, and that the High Court was correct to convict the appellant for the offences punishable under Sections 325 and 447 of the IPC on the basis of the prosecution evidence.

14. It is a well settled principle of law that the evidence of interested witnesses is not necessarily unreliable, and that it can form the basis of conviction even without corroboration by independent evidence as long as it is found to be consistent and reliable. In the instant case, the evidence of prosecution witnesses stands the test of scrutiny. The prosecution evidence is found to be clear, cogent, consistent and reliable so far as the guilt of the appellant is concerned. In that view of the matter, we do not think that the absence of independent witnesses, the non seizure of dao weapon and the absence of a medical report are grounds for interference with the well reasoned judgment of conviction passed by the High Court.

15. Further, the mere fact that the appellant was not named in the First Information Report would not entitle him to an acquittal when his guilt has been established beyond reasonable doubt by the evidence on record. in Jitender Kumar vs. State of Haryana (2012)6 SCC 204 : [2012 ALL SCR 1890] this Court has held:

"..The law is well settled that merely because an accused has not been named in the FIR would not necessarily result in his acquittal. An accused who has not been named in the FIR, but to whom a definite role has been attributed in the commission of the crime and when such role is established by cogent and reliable evidence and the prosecution is also able to prove its case beyond reasonable doubt, such an accused can be punished in accordance with law, if found guilty..."

16. In that view of the matter, we are of the considered opinion that the well reasoned judgment and order passed by the High Court convicting the appellant for the offences punishable under Sections 325 and 447 of IPC needs no interference by this Court.

17. Upon considering the serious nature of the offences for which the appellant has been convicted, we are not inclined to reduce the period of imprisonment ordered by the High Court. However, in our view the ends of justice will be met if we modify the sentence of rigorous imprisonment for six months to simple imprisonment for six months.

18. Accordingly, we modify the sentence of rigorous imprisonment for six months to simple imprisonment for six months.

19. The appeal stands disposed of accordingly.

20. The order passed by us shall not be treated as precedent in any other case.

Ordered accordingly.