Oral Judgment & Order:
1. These Criminal Appeal No. 173/2009 and Criminal Appeal No. 175/2009 has arisen out of the judgment, dated 19.09.2009, passed by the learned Additional Sessions Judge, Biswanath Chariali in GR Case No. 495/2003, convicting and sentencing the accused appellants. Criminal Appeal No. 173/2009 is preferred by Shri Lakhi Saikia, Shri Pranjal Sabukdhhara, Shri Bipul Phukan and Shri Binanda Bhuyan, appellants and Criminal Appeal No. 175/2009 in preferred by Shri Babul Bhuyan, appellant.
2. Both these Criminal Appeals are disposed of by this common judgment.
3. The accused appellant Babul Bhuyan of Criminal Appeal No. 175/2009 was convicted and sentenced to Rigorous Imprisonment for 1(one) year and to pay a fine of Rs. 500/-, in default, Simple Imprisonment for 60 (sixty) days under Section 324 of the IPC. The accused appellants in Criminal Appeal No. 173/2009, named above, are sentenced to Rigorous Imprisonment for 3 (three) months each, under Sections 427/34 of the IPC.
4. Heard Mr. D Saikia, learned counsel for the appellants in Criminal Appeal No. 173/2009 and Ms. P Barman, learned counsel for the
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appellant in Criminal Appeal No. 175/2009. Also heard Mr. BJ Dutta, learned Additional Public Prosecutor, appearing for the State of Assam in both the appeals.5. Briefly stated, the case for the prosecution is that, on 13.10.2003, the Government initiated an eviction drive and evicted the shops constructed on Government land at Kalabari centre, Gohpur. The accused appellant Babul Bhuyan, accompanied by some others, and armed with deadly weapons destroyed the newly constructed shop house of the informant and one hotel belonging to one Bhaba Saikia suspecting both of them to be the persons behind the eviction drive undertaken by the Government. After hearing the news of destruction of shop houses, the informant and others came to the place of occurrence in the night itself and then the accused appellant Babul Bhuyan and his two brothers attacked them resulting in injuries to the persons of Madan Saikia and Dukan Saikia. The injured were taken to the Doctor immediately after the occurrence, at about 2:30 am.6. On the above facts, the informant, Nityananda Saikia, filed a complaint before the learned Sub-Divisional Judicial Magistrate, Gohpur which was subsequently registered as an FIR. The police investigated into the case, and after completion of investigation, submitted Charge-Sheet against the accused appellant and few others (who were already acquitted by the learned Trial Court) under Sections 148/147/149/323/325/427/34 IPC.7. The father of the present accused appellant Babul Bhuyan also filed an FIR which was also investigated by the Police in respect of the same occurrence, and finally, submitted Charge-Sheet which resulted in the proceedings in Sessions Case No. 237/2005, tried by the same Court of learned Additional Sessions Judge. Both the cases were taken up by the learned Additional Sessions Judge being cross-case to each other.8. As stated above, both these appeals have arisen out of GR Case No. 495/2003.9. In this case, the prosecution examined as many as 8 (eight) witnesses, who were subjected to cross-examination by the defence, whereas the defence examined none.10. The plea of the defence during the trial as well as in the statements of the accused appellants recorded under Section 313 of the Cr.PC is of total denial.11. The accused appellants were charged by the learned Trial Court under Sections 148/323/326/427/149 of the IPC.12. Therefore, it has to be seen whether the evidence led by the prosecution is sufficient to substantiate the charges.13. PW1, Sri Nityananda Saikia, is the informant. He is heard saying in his evidence that in the night of 13.10.2003, in the eviction drive carried out by the Government, the shop of accused appellant Sri Babul Bhuyan was also evicted, and thereafter, the said accused appellant Sri Babul Bhuyan caused mischief to the newly constructed house of the informant, i.e., PW1 which was situated behind his demolished shop house. When the informant came to the place of occurrence, after hearing about the destruction of his newly constructed shop house situated behind the shop of the accused appellant, Sri Babul Bhuyan along with his brothers Dukan Saikia and Bhaba Saikia came there and the accused appellant Sri Babul Bhuyan gave a dao blow on the head of his brother Madan Saikia and when he prevented the dao blow to fall on him with his hand, he received cut injuries on his hand. Another blow on his head was also inflicted by the accused appellant Sri Babul Bhuyan with the dao which made the injured fall on the ground. The accused Ramesh Saikia and Jitesh Bhuyan assaulted Madan Saikia, the brother of the accused appellant (who were acquitted from the charge vide the judgment appealed against). The local doctor referred them to Tezpur Civil Hospital for treatment. During his cross-examination, this PW1 has been found to have stated that they thought that the accused appellants attacked them on under the impression that they were behind the eviction drive.14. PW2, Sri Rupeswar Saikia, only heard halla raised by Bhaba Saikia and next day morning only he came to know that the accused appellants caused injuries to Madan Saikia on his head and hand. The evidence of this witness appears to be hearsay in nature, in view of the fact that he has not linked the source of his information with any of the witnesses examined by the prosecution. Even there is no evidence in his statement to show as to from whom he heard about the occurrence. That being so, his evidence is not having any evidentiary value.15. The evidence of PW3, Madan Saikia, appears to be important in this case. He being the alleged injured and was allegedly assaulted by the accused appellant Babul Bhuyan by means of a dao on his hand. He named three persons, i.e., Babul, Jiten and Ramen as the persons who assaulted him. He was not aware as to whether the accused appellants also got injuries in their persons at the relevant time of the occurrence.16. PW5, Nityananda Bhuyan, identified the accused appellants Lakhi Saikia, Binod Saikia, Bipul Phukan and Pranjal Chabukdhara committing the mischief by destructing the house of the informant/PW1. He did not notice any injuries in the person of the informant/PW1.17. The evidence of PW6 is that he also saw the aforesaid Lakhi Saikia, Binod Saikia, Bipul Phukan and Pranjal Chabukdhara to have committed the offence of destruction of the house of the informant/PW1.18. PW4 and PW7 are the doctors who examined the injured Madan Saikia. PW7, Dr. Gobinda Mahanta, examined the injuries of Madan Saikia first and found cut injury on scalp, cut injury on left forearm and cut injury on left thumb, whereas PW4, Dr. GM Das examined and found only lacerated cut injury over right parietal region of scalp and cut injury with tenderness and swelling over left elbow and cut injury over left thumb with tenderness.19. The evidence of the Investigating Police Officer, PW8, Nandeswar Das, is of routine nature. He has narrated the different stages of investigation of the case.20. It appears from the evidence, as discussed above, that PW5 and PW6 claims to have witnessed the occurrence of causing injuries on the person of Madan Saikia by the accused appellant Babul Bhuyan and also witnessed destruction of the house of the informant by Lakhi Saikia, Binod Saikia, Bipul Phukan and Pranjal Chabukdhara.21. It is an admitted position that there is a cross case in respect of same offence in which also the injured in the instant case was convicted and sentenced by the same learned Trial Court, in respect of the same occurrence, vide judgment and order, dated 19.09.2009, in Sessions Case No. 237/2005.22. That apart, the record of the learned Trial Court reveals that in the complaint petition, filed before the learned Trial Court by the informant of this case, which was later on registered as an FIR by the Police, the informant named Ramesh Saikia, Rosheswar Bhuyan, Muninda Bhuyan and Subhas Bhuyan and Jiten Bhuyan also as accused claiming them also to have committed the offence involved in this case. But, during the trial, the learned Sessions Judge acquitted all these five persons from the accusation, which is indicative of the fact that there is some improvement in the prosecution case at the very initial stage, which the informant could not pursue to the logical conclusion for holding them guilty of the commission of the offences alleged. In his evidence, the PW1/informant very categorically stated that it was Babul Bhuyan who inflicted the injury on Madan Saikia but in his cross-examination and as well as in his statement in the FIR he has made number of persons as accused who were found not guilty of commission of the alleged offences by the learned Trial court, as is apparent from the judgment appealed against.23. There is an admitted position in this case that both the parties were engaged in a mutual fight at the time of occurrence and persons from both sides were injured. For the injuries sustained by Madan Saikia another case was filed and for injuries sustained by Babul Bhuyan and others, another case was filed. The injured Madan Saikia of the instant case is an accused in the other case. There is no dispute on this fact as appears from the evidence on record, that accused appellant Babul Bhuyan also sustained injuries in the same occurrence.24. The evidence on record although reveals that both the parties engaged in assaulting each other and also caused injuries to person from each side, yet there is no evidence to show as to who was the aggressor. In the absence of any evidence as to who was the aggressor and in view of the fact that members from both the sides sustained injuries, it is unsafe, to hold any of the accused appellants guilty of commission of the offences.25. It appears from the evidence on record that it was a case of group fighting and there was a mutual provocation from both sides. When there is a group fight and there is no evidence of unilateral provocation, one side cannot be blamed. Both the parties are more or less to be blamed.26. On perusal of the impugned judgment and the evidence recorded by the learned Trial Court, it does not appear that while recording conviction of the accused appellants, the learned Trial Court looked into the aforesaid aspect of the case. Had such aspect been looked into, the judgment would have been otherwise than the one recorded by the learned Trial Court.27. As discussed above, there is some concoction and improvement in the prosecution case as it is apparent from the fact that apart from the present accused appellants the other five persons named as accused in the original complaint were not found guilty by the Court although, the informant/PW1 roped them in the complaint.28. In view of the above discussions, the evidence appears to be not sufficient to unhesitatingly hold that the accused appellants in both the appeals were guilty of the offences which they were held to have been committed by the learned Trial Court.29. The judgment of the learned Trial Court, convicting and sentencing the accused appellants, needs to be interfered with in view of the findings recorded in the foregoing discussions.30. Accordingly, both the appeals, namely, Criminal Appeal No. 173/2009 and Criminal Appeal No. 175/2009 stand allowed.31. Send down the LCR along with the copy of this judgment.