Biplab Kumar Sharma, J.@mdashHeard Mr. M.H. Ahmed, learned counsel, who has been appointed as Amicus Curiae to argue the case on behalf of the accused/appellant. Also heard Mr. D. Das, learned Additional Public Prosecutor, Assam. By means of this appeal, the accused/appellant, namely, Shri Champak Nath, has assailed the judgment of conviction dated 4th February, 2003 passed by the learned Additional Sessions Judge (Ad-hoc), Barpeta in Sessions Case No. 30/1995 convicting him under Sections 325/307 IPC and sentencing to suffer rigorous imprisonment for 4(four) years and also to pay a fine of Rs. 2,000/- (Rupees Two Thousand), in default simple imprisonment for 2(two) months for the offence under Section 307 IPC and also to suffer rigorous imprisonment for 2(two) years, coupled with the fine of Rs. 2,000/- (Rupees Two Thousand), in default simple imprisonment for 2(two) months for the offence under Section 325 IPC.
2. The prosecution case in brief is that on 4th August, 1993 at about 10:30 Am, the accused/appellant caused grievous hurt on the person of the injured with the help of a Dao and with a view to kill him in a Tea Stall belonging to the PW-1. On receipt of the FIR lodged by PW-1 on 4th August, 1993, Patacharkuchi Police Station/Case No. 189/1993 was registered under Section 326 IPC. Thereafter, the I/C, Jalah Outpost being entrusted with the investigation of the case. He carried out the same and in due course submitted the charge-sheet under Sections 326/307 IPC. The case was thereafter committed to the Court of sessions by the learned Judicial Magistrate, First Class, Barpeta, as the offence under Section 307 IPC is exclusively triable by the Court of Sessions. Charges were framed on 19th April, 1996 under Sections 326/307 IPC and the accused/appellant being read over and explained the same, pleaded not guilty and claimed to be tried. Thereafter, the trial started.
3. During trial, the prosecution examined 6(six) witnesses including the first informant (PW-1) and the Doctor (PW-5), who had examined the injured. The learned trial Court raising the following points having answered them in favour of the prosecution with the aforesaid conviction and sentences against the accused/appellant, he has preferred this appeal.
"(i) Whether the accused Champak Nath had caused grievous hurt on the person of Harihar Nath with a dao on 4.8.93 at about 10.30 A.M. as alleged? And
(ii) Whether the accused had intentionally attempted to cause death of said Harihar Nath on 4.8.93 at about 10.30 A.M. as alleged?"
4. Mr. Ahmed, learned Amicus Curiae referring to the evidence on record, including the confessional statement of the accused/appellant, has submitted that based on the said evidence the conviction of the accused/appellant is not warranted. According to him, the evidence of PW-1, stated to be an eye witness to the incident, does not inspire confidence and thus solely on the basis of his evidence, the learned trial Court could not have convicted the accused/appellant As regards the confessional statement under Section 164 Cr.P.C., he submits that same being not voluntary and the accused/appellant having retracted from such alleged confessional statement, no conviction can be based on the basis of such purported confessional statement.
5. Mr. Das, learned Additional Public Prosecutor, on the other hand, submits that the evidence of PW-1, who was the eye witness, is trustworthy and the defence having failed to bring any contradiction in the cross-examination, his evidence cannot be disbelieved. He also submits that the testimony of PW-1 will have to be tested in reference to the statement of the accused/appellant made under Section 164 Cr.P.C. According to him, such confessional statement being voluntary, the purported retraction only during the course of statement recorded under Section 313 Cr.PC is not acceptable.
6. I have given my anxious consideration to the submissions made by the learned counsel appearing for the parties and have also perused the entire materials on record.
7. Exhibit-1 is the FIR lodged by the PW-1 on 4th August, 1993 narrating the incident As per the said FIR, on 4th August, 1993 at about 10:30 AM, the accused/appellant inflicted Dao injury on the head of the injured. The incident occurred in his Tea Stall located in front of Jalah College. The first informant is the PW-1. He, in his deposition, narrating the incident stated that about 7(seven) years back some people sitting in his Tea Stall were engaged in quarrelling with Dao and the accused/appellant inflicted Dao injury on the injured. On raising hue and cry, he lodged the Exhibit-1 FIR. In the cross-examination, he stated about the nearby shop of one Manoj. He also stated that the police had seized one blood stained bench. He denied that the accused/appellant did not inflict the Dao injury. Referring to this evidence, it is the submission of the learned Amicus Curiae that as regards the other injuries there being no reference and the PW-1 having referred to only one injury, his testimony is unbelievable. He further submits that the ingredients of Section 307 IPC is also missing in this case.
8. PW-2 is the Investigating Officer, who, in his deposition, generally stated about the investigation. In the cross-examination, he stated about receipt of the FIR at the place of incident PW-3 is the Judicial Magistrate, First Class, Barpeta, who, in his deposition, stated about the confessional statement According to his testimony, the confessional statement was recorded without any coercion or pressure on the accused/appellant In the cross-examination, it was admitted that the time of recording the confessional statement was not mentioned. However, it was also stated that the accused/appellant was given 3(three) hours for reflection. He denied that the accused was not willing to make any confessional statement PW-4 is a reported witness. PW-5 is the Doctor, who had examined the injured. Referring to the injuries, he, in his deposition, referred the injuries as follows:--
"(1) Skull Injury:--in the parital region, injury measuring 1.25" cm X 7"cm X 7''5"cm, (ii) 4''5"cmX 1" cm X 1''5"cm(iii)5" cm X 1" cm X 1''5" cm, (2) Occipital region 5"cm X 1''5"cm X 1"cm, (3) Cut injuries on left thumb, measuring 3''5" cm X 1''5" cm X 1''5" cm. (4) Right Knee Joint-5"cm X 5"cm X 5"cm and there were active bleeding in all the injuries.
Nature of injury:- Grievous injury.
Weapon used:- Sharp weapon.
Ext. 4 is the injury report and Ext.4(1) is my signature."
In his cross-examination, PW-5 admitted that the age of the injured was not recorded. He also admitted that the person, who had brought the injured, was not named in the report It will be pertinent to mention here that although the incident occurred was on 4th August 1993 but PW-5 in his deposition referred me date of the incident as 4th August 1995 and the date of issuance of the injury report as 21st August, 1995. It is in this connection, the learned Amicus Curiae has submitted that the testimony of PW-5 is not believable inasmuch as the alleged incident took place on 4th August, 1993.
9. Rebutting me suggestion made by Mr. Das, teamed Additional Public Prosecutor that possibly "1995" is a typing mistake. He submits that such mistake could not have occurred in 2(two) places, i.e. as 4th August, 1995 and also as 21st August, 1995. PW-6 is the person, who had written the FIR. He, in his deposition, stated that he had written the FIR as was dictated by PW-1. The accused/appellant was examined under Section 313 Cr.PC in respect of the materials adverse to him. As regards his confessional statement his answer was that although he had made the statement but the same was the product of atrocities perpetrated on him by the police.
10. Above are the evidences on record by which the learned trial Court convicted the appellant under Sections 325/307 IPC with the aforesaid sentences. On perusal of the evidence on record, the ingredients to constitute an offence under Section 307 IPC is found missing. For a ready reference, relevant portion of Section 307 IPC is quoted below:--
"307. Attempt to murder.- Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned."
11. It is primarily on the basis of the evidence of PW-1, the learned trial Court has convicted the accused/appellant under Section 307 IPC alongwith Section 325 IPC. On the basis of the evidence discussed above, it cannot be said to be a case in which the accused/appellant did the particular act with the intention or knowledge that by the act attributed to him, he would be guilty of murder. As per the evidence on record, there was already a gathering in the Tea Stall and there was also altercation among the people. It was during that altercation, the accused/appellant inflicted the injury on the body of the injured. It is under such circumstances, the learned trial Court has convicted him under Section 325 IPC. However, while doing so, he has also been convicted under Section 307 IPC. To that extent, the impugned judgment of conviction stands interfered with.
12. This now leads us to the question as to whether the accused/appellant''s conviction under Section 325 IPC can be upheld. Apart from the confessional statement of the accused/appellant, there is also corroborative evidence of PW-1. In the cross-examination, this witness categorically stated about the infliction of injury by the accused/appellant with his Dao. Answering to a specific question, PW-1 categorically stated that it was the accused/appellant who had inflicted the Dao injury on the body of the injured. This being the position, I am not inclined to interfere with the conviction of the accused/appellant under Section 325 IPC.
13. In the impugned judgment of conviction, the learned trial Court while deciding the sentence imposed on the accused/appellant considering his age and also the fact that he was a Government employee, imposed the aforesaid sentences. It is submitted by the learned Amicus Curiae that having regard to the circumstances in which the injured came to be inflicted with the injury, the accused/appellant is entitled to the benefit of the Probation of Offenders Act, 1958. Under Sections 3 and 4 of the said Act, there is power of the Court to release certain offenders on probation of good conduct. It appears that the accused/appellant after the conviction by the impugned judgment is on bail as was granted to him vide order dated 4th April, 2003 passed in Criminal Misc. Case No. 74/2003. Considering the matter in its entirety, I am inclined to invoke the provisions of Section 4 of the Probation of Offenders Act, 1958, releasing the accused/appellant upon conviction under Section 325 IPC on probation on execution of bond to the satisfaction of the learned trial Court and subject to the period of probation as indicated in Section 4 of the Act. At the same time, by invoking the provisions of Section 357-A Cr.PC and also in terms of the notification dated 18th October, 2012 issued by the Government of Assam in the Political Department, it is hereby provided that the injured Harihar Nath, will be entitled to a compensation of Rs. 15,000/- (Rupees Fifteen Thousand) and the District Legal Services Authority, Barpeta shall ensure payment of the same to the injured upon proper identification and verification. The Registry shall transmit the case records to the learned Court below alongwith a copy of this judgment and order.
