Gauhati High Court
Page No.# 1/2 vs The State Of Assam on 4 April, 2025
Page No.# 1/21
GAHC010122432012
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Rev.P./484/2012
SMTI. SARATHI BALA BARMAN and ANR.
W/O SRI RAMESWAR BARMAN R/O VILL- NO.2, GARUGAON KUSIAKATA,
P.S. BONGAIGAON, DIST. BONGAIGAON, ASSAM,
2: SMTI ANITA BARMAN
W/O SRI RAMENYA BARMAN R/O VILL- NO.2
GARUGAON KUSIAKATA
P.S. BONGAIGAON
DIST. BONGAIGAON
ASSA
VERSUS
THE STATE OF ASSAM
Advocate for the Petitioner : MRS.J CHAKRABORTY, MR.N SARKAR
Advocate for the Respondent : , PP, ASSAM
BEFORE
HON’BLE MR. JUSTICE KAUSHIK GOSWAMI
Date of hearing : 04.04.2025.
Date of Judgment : 04.04.2025.
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JUDGMENT & O R D E R (ORAL)
Heard Mr. N. Sarkar, learned counsel for the accused/petitioners. Also heard
Mr. B. Sarma, learned Addl. Public Prosecutor for the State respondent.
2. This petition is filed under Section 397 of the CrPC, 1973 read with Section 401
and Section 482 of the CrPC seeking setting aside and quashing of the impugned
Judgment and Order dated 20.07.2011 passed by the learned Chief Judicial
Magistrate, Bongaigaon (hereinafter referred to as the Trial Court) in GR Case No.
491/2009, whereby the accused/petitioners were convicted under Section 341/325/34
of IPC and sentenced to undergo Simple Imprisonment for one month under Section
341 IPC and Simple Imprisonment of one year and a fine of Rs. 500/- under Section
325 of IPC, in default, Simple Imprisonment for one month and the impugned
Judgment and Order dated 30.08.2012 passed by the learned Addl. Sessions
Judge (FTC), Bongaigaon ( hereinafter referred to as the Appellate Court ) in Criminal
Appeal No. 25(3)/2011, whereby the Appellate Court partly modified the Judgment
passed by the Trial Court by acquitting the accused/petitioners under Section 341 of
IPC and reducing the sentence of imprisonment under Section 325 of IPC to six
months instead of one year by maintaining the fine.
3. Mr. N. Sarkar, learned counsel for the accused/petitioners submits at the outset
that the accused/petitioner No. 1 i.e. Smt. Sarathi Bala Barman during the pendency
of the petition expired on 23.12.2024 and accordingly produced a copy of the Death
Certificate issued by the Govt. of Assam, Dept of Health and Family Welfare, which is
kept on record and marked as ‘X’.
4. The brief facts of the case is that on 09.09.2009 at 1:30 am, one Rameswar
Barman knocked the door of the informant and since she refused to open the door, he
left her house by saying that he would take revenge for the same. It is the further
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case of the prosecution that on the following morning, since the informant apprised
the villagers about the same, the accused/petitioners attacked her on village path and
assaulted her with lathi, for which she sustained serious injury on her forehand. It is
the further case of the prosecution that again at 6:00 pm, the accused/petitioners
entered into her house and assaulted her and her minor daughter with a lathi, as a
result of which, her left wrist was broken and she sustained injuries on head and
forehead and her daughter sustained injury on her right finger. Accordingly, on
12.09.2009, the informant lodged FIR before the jurisdictional Police Station which
was registered as Bongaigoan Police Station Case No. 363/2009 under Section
341/447/325/506 of IPC. Thereafter, the Investigating Officer completed the
investigation and submitted chargesheet under Section 341/325/506/34 of IPC against
the accused/petitioners.
5. The Trial Court framed charges under Section 341/325/506/34 of IPC against
both the accused/petitioners. During trial, the prosecution examined as many as 6
prosecution witnesses including the Medical Officer and Investigating Officer whereas
the accused/petitioners have been examined under Section 313 of CrPC, wherein the
plea of defence was total denial. No defence witness was adduced. The Trial Court
after closure of evidence and hearing the parties was pleased to hold the
accused/petitioners guilty under Section 341/325/34 of IPC and accordingly convicted
thereafter.
6. Aggrieved by such conviction, the accused/petitioners filed appeal before the
Appellate Court and the Appellate Court acquitted the accused/petitioners under
Section 341 of IPC. However, while maintaining the conviction under Section 325 of
IPC, modified/reduced the sentence of imprisonment from one year to six months.
Situated thus, the present revision petition has been filed.
7. Mr. N. Sarkar, learned counsel for the accused/petitioners submits that the Trial
Court ought not have convicted the accused/petitioners in the absence of reliable
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evidence to the effect that the Investigating Agency has not seized and produced the
lathi allegedly used in the offence before the Trial Court and as such, the conviction
and sentence passed is erroneous in law.
In support of the aforesaid submission, he relies upon the following decisions:-
1)Kipa Sero Vs. State of Arunachal Pradesh, reported in (2005) 4 GLT 86.
2) Meenakshi Sundaram Vs. State represented by Inspector of Police
Nagamalai, reported in (2017) SCC Mad 30175.
8. Mr. N. Sarkar, learned counsel further submits that the evidence of PW-3 based
on which the Trial Court has convicted the accused/petitioners is not put to the
accused/petitioners while they were examined under Section 313 of CrPC and
therefore, the trial stands vitiated and hence, the Judgment and Order of the Trial
Court as well as the Appellate Court is palpably and manifestly erroneous.
In support of the aforesaid submission, he relies upon the decision of the Apex
Court in the case of Reena Hazarika Vs. State of Assam reported in (2019) 13
SCC 289.
9. He further submits that the material prosecution witnesses having improved their
versions from that of the initial statement made before the Investigating Officer under
Section 161 of CrPC, such omission also vitiates the trial.
In support of the aforesaid submissions, he relies upon the decision of the Apex
Court in the case of State of Rajasthan Vs. Rajendra Singh , reported in (2009)
11 SCC 106.
10. He further submits that none of the prosecution witnesses have deposed before
the Court as regards who have claimed to witness the incident as regards out of the
two accused/petitioners which one have dealt the lathi blow on the forehead of the
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informant. He accordingly submits that there being no specific allegations against the
accused/petitioners, the conviction based on such omnibus statements ought to be
interfered by this Court while exercising revisional jurisdiction.
11. Per contra, Mr. B. Sarma, learned Addl. Public Prosecutor for the State
respondent submits that mere not putting the evidence of PW-3 before the
accused/petitioners while they were examined under Section 313 of CrPC shall not
vitiate the trial unless and until the accused/petitioners shows as how the same has
caused prejudice to them.
12. I have given my prudent consideration to the arguments advanced by the
learned counsels appearing for the contesting parties and I have perused the
materials available on record. I have also considered the case laws cited at the Bar.
13. It appears that on 11.09.2009, the victim/PW-1 lodged an FIR stating interalia
that on 09.09.2009 at 1:50 am, the accused/petitioner No. 1 called her to open the
door but since she did not open the door, the accused/petitioners returned to their
home after telling her that they will take revenge. It is further alleged that on
10.09.2009 at about 10:00 am, the accused No. 2 attacked her and wounded her left
hand and forehead by stick.
14. It appears that PW-1 during trial deposed that one Rameshwar Barman on the
night before the occurrence came to her house and called her to open the door but
since she did not open the door, he told her that he would take revenge. It further
appears that PW-1 further deposed that on the next day at about 4 O’clock, two
accused/petitioners entered into her house and assaulted her, as a result of which, her
hand was broken and they also assaulted her 7 year old daughter, as a result of
which, her finger was broken.
During cross examination, PW-1 clarified that the accused/petitioners also
brought a case against her and the same is being tried and that she was assaulted
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with wooden lathi.
15. It appears that PW-2, who is a co-villager deposed that hearing- shouting, he
came to the place of occurrence where he found that there was a scuffle going on in
the house of PW-1.
16. It appears that PW-3, who is another co-villager, deposed that hearing shouting,
he came to the place of occurrence and found the accused/petitioners entering into
the house of PW-1 and assaulting her with bamboo lathi and as a result of which her
hand was broken.
17. It further appears that PW-4, who is another co-villager deposed that hearing
shouting, he came to the place of occurrence and found the informant lying on the
ground and the accused/petitioners running towards their house.
18. It appears that PW-5, who is the Medical Officer examined PW-1 and her
daughter and on examination of PW-1, she found the following injuries:-
(a) Tenderness present on the left forearm, left arm and left check.
(b) Fracture on left Ulnar bone as per X-ray report.
19. It appears that PW-5 opined that injury No.1 is simple and caused by blunt
object and injury No.2 is grievous injury caused by blunt object. It appears that on
examining Tutu Barman i.e. daughter, she found tenderness on right hand of little
finger. In her opinion, the said injury was simple in nature and caused by blunt object.
20. It appears that PW-6, who is the Investigating Officer, deposed in his testimony
that after receiving the FIR, he investigated the case and examined the victim as well
as other witnesses and accordingly submitted chargesheet.
It appears that during cross examination of PW-6, he clarified that PW-3 did not state
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before him during his examination under Section 161 of CrPC that the
accused/petitioners had entered the house of the PW-1 and broken her hand. He
further clarified that PW-4 has not stated during interrogation under Section 161 of
CrPC that he had seen the PW-1 lying on the floor and the accused/petitioners running
from the place of occurrence.
21. It further appears that after the closure of the prosecution evidences, the
accused/petitioners were examined under Section 313 of CrPC and a close perusal of
Section 313 of CrPC examination statement of the accused/petitioners indicates that
no question as regards the deposition of PW-3 was put to the accused/petitioners. It
appears that it is PW-3, who has specifically deposed that the accused/petitioners
assaulted the PW-1 by entering into her house. That apart, the other prosecution
witnesses PW-2 and PW-4 have not seen the assault.
22. That being so, the deposition of PW-3 being one of the crucial incriminating
circumstance, ought to have been put to the accused/petitioners under Section 313 of
CrPC examination and the same having not been put, serious prejudice has been
caused to the accused/petitioners for which the trial gets vitiated.
23. Reference in this regard is made to the decision of the Apex Court in the case of
Sharad Biridhichand Sarda Vs. State of Maharashtra reported in AIR 1984 SC
1622, wherein the Apex Court has held that unless the incriminating circumstance is
put to the accused/petitioners in his examination under Section 342/313 CrPC, the
same cannot be used against him.
24. Relevant paragraphs 142, 143 and 144 of the aforesaid judgment of the Apex
Court are reproduced hereunder for ready reference:-
“142.Apart from the aforesaid comments there is one vital defect in some of the
circumstances mentioned above and relied upon by the High Court, viz.,
Page No.# 8/21circumstances Nos. 4, 5, 6, 8, 9, 11, 12, 13, 16 and 17. As these circumstances were
not put to the appellant in his statement under Section 313 of the Criminal Procedure
Code they must be completely excluded from consideration because the appellant did
not have any chance to explain them. This has been consistently held by this Court as
far back as 1953 where in the case of Hate Singh Bhagat Singh v. State of Madhya
Bharat AIR 1953 SC 468 this Court held that any circumstance in respect of which an
accused was not examined under Section 342 of the Criminal Procedure Code cannot
be used against him. Ever since this decision, there is a catena of authorities of this
Court uniformly taking the view that unless the circumstance appearing against an
accused is put to him in his examination under Section 342 or Section 313 of the
Criminal Procedure Code, the same cannot be used against him. In Shamu Balu
Chaugule v. State of Maharashtra, (1976) 1 SCC 438: (AIR 1976 SC 557) this Court
held thus :
“The fact that the appellant was said to be absconding, not having been put to
him under Section 342, Criminal Procedure Code, could not be used against
him.”
143. To the same effect is another decision of this Court in Harijan Megha Jesha v.
State of Gujarat, AIR 1979 SC 1566 where the following observations were made:
“In the first place, he stated that on the personal search of the appellant, a chadi
was found which was bloodstained and according to the report of the serologist,
it contained human blood. Unfortunately, however, as this circumstance was not
put to the accused in his statement under Section 342, the prosecution cannot
be permitted to rely on this statement in order to convict the appellant.”
144.It is not necessary for us to multiply authorities on this point as this question now
stands concluded by several decisions of this Court. In this view of the matter, the
circumstances which were not put to the appellant in his examination under Section
313 of the Criminal Procedure Code have to be completely excluded from
consideration.”
25. Reference is also made to the decision of the Apex Court in the case of
Inspector of Customs, Ankhnoor, Jammu & Kashmir Vs. Yashpal & Another
reported in (2009) 4 SCC 769. Relevant paragraphs 14, 15 and 16 are reproduced
hereunder for ready reference:-
“14. Section 313 Cr.P.C. reads as follows:
“313. Power to examine the accused.–(1) In every inquiry or trial, for the purpose of
enabling the accused personally to explain any circumstances appearing in the
evidence against him, the court–
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(a) may at any stage, without previously warning the accused, put such questions to
him as the court considers necessary;
(b) shall, after the witnesses for the prosecution have been examined and before he is
called on for his defence, question him generally on the case:
Provided that in a summons case, where the court has dispensed with the personal
attendance of the accused, it may also dispense with his examination under clause (b).
(2) No oath shall be administered to the accused when he is examined under sub-
section (1).
(3) The accused shall not render himself liable to punishment by refusing to answer
such questions, or by giving false answers to them.
(4) The answers given by the accused may be taken into consideration in such inquiry
or trial, and put in evidence for or against him in any other inquiry into, or trial for, any
other offence which such answers may tend to show he has committed.”
15. “9. The forerunner of the said provision in the Old Code was Section 342 therein. It
was worded thus:
“342. Power to examine the accused.-(1) For the purpose of enabling the
accused to explain any circumstances appearing in the evidence against him,
the court may, at any stage of any inquiry or trial, without previously warning the
accused, put such questions to him as the court considers necessary, and shall,
for the purpose aforesaid, question him generally on the case after the
witnesses for the prosecution have been examined and before he is called on
for his defence.
(2) The accused shall not render himself liable to punishment by refusing to
answer such questions, or by giving false answers to them; but the court and
the jury (if any) may draw such inference from such refusal or answers as it
thinks just.
(3) The answers given by the accused may be taken into consideration in such
inquiry or trial, and put in evidence for or against him in any other inquiry into, or
trial for, any other offence which such answers may tend to show he has
committed.
(4) No oath shall be administered to the accused when he is examined under
sub-section (1).”
10. Dealing with the position as the section remained in the original form under
the Old Code, a three-Judge Bench of this Court (Fazal Ali, Mahajan and Bose,
JJ.) interpreted the section in Hate Singh Bhagat Singh v. State of Madhya
Bharat that:
“8…The statements of the accused recorded by the Committing Magistrate and
Page No.# 10/21the Sessions Judge are intended in India to take the place of what in England
and in America he would be free to state in his own way in the witness-box.
They have to be received in evidence and treated as evidence and be duly
considered at the trial.”
11. Parliament, thereafter, introduced Section 342-A in the Old Code (which
corresponds to Section 315 of the present Code) by which permission is given
to an accused to offer himself to be examined as a witness if he so chose.
12. In Bibhuti BhusanDas Gupta Vs. State of W.B, another three-Judge
Bench….. dealing with the combined operation of Sections 342 and 342-A of
the Old Code made the following observations:
“7….Under Section 342-A only the accused can give evidence in person and his
pleader’s evidence cannot be treated as his. The answers of the accused under
Section 342 is intended to be a substitute for the evidence which he can give
as a witness under Section 342-A. The privilege and the duty of answering
questions under Section 342 cannot be delegated to a pleader. No doubt the
form of the summons show that the pleader may answer the charges against
the accused, but in so answering the charges, he cannot do what only the
accused can do personally. The pleader may be permitted to represent the
accused while the prosecution evidence is being taken. But at the close of the
prosecution evidence the accused must be questioned and his pleader cannot
be examined in his place.”
13. The Law Commission in its Forty-first Report considered the aforesaid
decisions and also various other points of view highlighted by legal men and
then made the report after reaching the conclusion that:
(i) in summons cases where the personal attendance of the accused has
been dispensed with, either under Section 205 or under Section 540-A,
the court should have a power to dispense with his examination; and
(ii) in other cases, even where his personal attendance has been
dispensed with, the accused should be examined personally.
14. The said recommendation has been followed up by Parliament and Section
313 of the Code, as is presently worded, is the result of it. It would appear prima
facie that the court has discretion to dispense with the physical presence of an
accused during such questioning only in summons cases and in all other cases
it is incumbent on the court to question the accused personally after closing
prosecution evidence. Nonetheless, the Law Commission was conscious that
the rule may have to be relaxed eventually, particularly when there is
improvement in literacy and legal-aid facilities in the country. This thinking can
be discerned from the following suggestion made by the Law Commission in the
same report:
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“24.45. Section 342 should be retained. – We have, after considering the various
aspects of the matter as summarised above, come to the conclusion that
Section 342 should not be deleted. In our opinion, the stage has not yet come
for it being removed from the statute-book. With further increase in literacy and
with better facilities for legal aid, it may be possible to take that step in the
future.”
15. The position has to be considered in the present set-up, particularly after the
lapse of more than a quarter of a century through which period revolutionary
changes in the technology of communication and transmission have taken
place, thanks to the advent of computerisation. There is marked improvement in
the facilities for legal aid in the country during the preceding twenty-five years.
Hence a fresh look can be made now. We are mindful of the fact that a two-
Judge Bench in Usha K. Pillai V. Raj K. Srinivas has found that the examination
of an accused personally can be dispensed with only in summons case. Their
Lordships were considering a case where the offence involved was Section 363
IPC. The two-Judge Bench held thus:
“4….A warrant case is defined as one relating to an offence punishable with
death, imprisonment for life or imprisonment for a term exceeding two years.
Since an offence under Section 363 IPC is punishable with imprisonment for a
term exceeding two years it is a warrant case and not a summons case.
Therefore, even in cases where the court has dispensed with the personal
attendance of the accused under Section 205(1) or Section 317 of the Code,
the court cannot dispense with the examination of the accused under clause (b)
of Section 313 of the Code because such examination is mandatory.”
16. Contextually we cannot bypass the decision of a three-Judge Bench of this Court
in Shivaji Sahabrao Bobade v. State of Maharashtra as the Bench has widened the
sweep of the provision concerning examination of the accused after closing
prosecution evidence. Learned Judges in that case were considering the fallout of
omission to put to the accused a question on a vital circumstance appearing against
him in the prosecution evidence. The three-Judge Bench made the following
observations therein:
“16…..It is trite law, nevertheless fundamental, that the prisoner’s attention
should be drawn to every inculpatory material so as to enable him to explain it.
This is the basic fairness of a criminal trial and failures in this area may gravely
imperil the validity of the trial itself, if consequential miscarriage of justice has
flowed. However, where such an omission has occurred it does not ipso facto
vitiate the proceedings and prejudice occasioned by such defect must be
established by the accused. In the event of evidentiary material not being put to
the accused, the court must ordinarily eschew such material from
consideration. It is also open to the appellate court to call upon the counsel for
Page No.# 12/21the accused to show what explanation the accused has as regards the
circumstances established against him but not put to him and if the accused is
unable to offer the appellate court any plausible or reasonable explanation of
such circumstances, the court may assume that no acceptable answer exists
and that even if the accused had been questioned at the proper time in the trial
court he would not have been able to furnish any good ground to get out of the
circumstances on which the trial court had relied for its conviction.”
17. The above approach shows that some dilution of the rigour of the provision can be
made even in the light of a contention raised by the accused that non-questioning him
on a vital circumstance by the trial court has caused prejudice to him. The explanation
offered by the counsel of the accused at the appellate stage was held to be a sufficient
substitute for the answers given by the accused himself.
18. What is the object of examination of an accused under Section 313 of the Code?
The section itself declares the object in explicit language that it is “for the purpose of
enabling the accused personally to explain any circumstances appearing in the
evidence against him”. In Jai Dev v. State of Punjab Gajendragadkar, J. (as he then
was) speaking for a three-Judge Bench has focused on the ultimate test in determining
whether the provision has been fairly complied with. He observed thus:
“21….The ultimate test in determining whether or not the accused has been
fairly examined under Section 342 would be to inquire whether, having regard to
all the questions put to him, he did get an opportunity to say what he wanted to
say in respect of prosecution case against him. If it appears that the
examination of the accused person was defective and thereby a prejudice has
been caused to him, that would no doubt be a serious infirmity.”
19. Thus it is well settled that the provision is mainly intended to benefit the accused
and as its corollary to benefit the court in reaching the final conclusion.
20. At the same time it should be borne in mind that the provision is not intended to
nail him to any position, but to comply with the most salutary principle of natural justice
enshrined in the maxim audi alteram partem. The word “may” in clause (a) of sub-
section (1) in Section 313 of the Code indicates, without any doubt, that even if the
court does not put any question under that clause the accused cannot raise any
grievance for it. But if the court fails to put the needed question under clause (b) of the
sub-section it would result in a handicap to the accused and he can legitimately claim
that no evidence, without affording him the opportunity to explain, can be used against
him. It is now well settled that a circumstance about which the accused was not asked
to explain cannot be used against him.
21. But the situation to be considered now is whether, with the revolutionary change in
technology of communication and transmission and the marked improvement in
facilities for legal aid in the country, is it necessary that in all cases the accused must
answer by personally remaining present in court. We clarify that this is the requirement
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and would be the general rule. However, if remaining present involves undue hardship
and large expense, could the court not alleviate the difficulties. If the court holds the
view that the situation in which he made such a plea is genuine, should the court say
that he has no escape but he must undergo all the tribulations and hardships and
answer such questions personally presenting himself in court. If there are other
accused in the same case, and the court has already completed their questioning,
should they too wait for long without their case reaching finality, or without registering
further progress of their trial until their co-accused is able to attend the court personally
and answer the court questions? Why should a criminal court be rendered helpless in
such a situation?
22. The one category of offences which is specifically exempted from the rigour of
Section 313(1)(b) of the Code is “summons cases”. It must be remembered that every
case in which the offence triable is punishable with imprisonment for a term not
exceeding two years is a “summons case”. Thus, all other offences generally belong to
a different category altogether among which are included offences punishable with
varying sentences from imprisonment for three years up to imprisonment for life and
even right up to death penalty. Hence there are several offences in that category which
are far less serious in gravity compared with grave and very grave offences. Even in
cases involving less serious offences, can not the court extend a helping hand to an
accused who is placed in a predicament deserving such a help?
23. Section 243(1) of the Code enables the accused, who is involved in the trial of
warrant case instituted on police report, to put in any written statement. When any
such statement is filed the court is obliged to make it part of the record of the case.
Even if such case is not instituted on police report the accused has the same right
(vide Section 247). Even the accused involved in offences exclusively triable by the
Court of Session can also exercise such a right to put in written statements (Section
233(2) of the Code). It is common knowledge that most of such written statements, if
not all, are prepared by the counsel of the accused. If such written statements can be
treated as statements directly emanating from the accused, hook, line and sinker, why
not the answers given by him in the manner set out hereinafter, in special
contingencies, be afforded the same worth.
24. We think that a pragmatic and humanistic approach is warranted in regard to such
special exigencies. The word “shall” in clause (b) to Section 313(1) of the Code is to
be interpreted as obligatory on the court and it should be complied with when it is for
the benefit of the accused. But if it works to his great prejudice and disadvantage the
court should, in appropriate cases, e.g., if the accused satisfies the court that he is
unable to reach the venue of the court, except by bearing huge expenditure or that he
is unable to travel the long journey due to physical incapacity or some such other
hardship, relieve him of such hardship and at the same time adopt a measure to
comply with the requirements in Section 313 of the Code in a substantial manner. How
could this be achieved?
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The above position was indicated in Basav Raj R Patil v. State of Karnataka ( 2000 (8)
SCC 740) and Keya Mukherjee v. Magma Leasing Ltd. and Ors.
16. It is to be noted that in the instant case there was no reference to any of the
incriminating materials. If the foundation of the prosecution case was the alleged
confession before the Customs Authorities, that material was not brought to the notice
of the accused persons.”
26. Reading of the aforesaid judgment of the Apex Court, it appears that in that
case, the foundation of the prosecution case being the alleged confession made by the
accused/petitioners before the Customs Authorities having not been brought to the
notice of the accused/petitioners during their examination under Section 313 of CrPC,
the Apex Court was pleased to hold that the trial was vitiated.
27. In the present case, it is the evidence of PW-3 alone on the basis of which the
impugned conviction was rendered by the Trial Court and affirmed by the Appellate
Court which admittedly was not put to the accused/petitioners under Section 313 of
CrPC examinations. That being so, the accused/petitioners did not get opportunity to
explain the aforesaid incriminating circumstance available against them. Hence, it can
be safely concluded that the accused/petitioners did not get a fair opportunity in the
trial. Hence, the evidence of PW-3 cannot be looked into. If the evidence of PW-3 is
taken away, the case rest upon the evidence of PW-1, the victim herself, PW-2 & PW-
4.
28. It appears that PW-1 has improved her version than that of the FIR and has also
not indicated in her deposition before the Trial Court as regards, who out of the two
accused/petitioners has dealt the lathi blow. That apart, though PW-1 in the FIR has
stated that the accused No. 2 attacked and wounded her in her hand and forehead by
stick, however, during trial, PW-1 deposed that the two accused/petitioners entered
her house and assaulted her as a result of which her hand was broken. The FIR being
not a substantial piece of evidence cannot be relied. It appears that in the present
case, the PW-1 in her testimony before the Trial Court did not state that the accused
Page No.# 15/21
No. 2 attacked and wounded her. In fact, she has merely given an omnibus statement
that the accused/petitioners have assaulted her without specifically assigning any role
to the accused/petitioners. As such, the statement of PW-1/victim appears to be
doubtful. It further appears that PW-2 and PW-4 though have not seen the assault,
however, during trial has deposed that the accused/petitioners were present at the
place of occurrence. However, the same was not disclosed before the Police while their
statements were recorded under Section 161 CrPC. Such omission of material
particular certainly contradicts their testimony before the Trial Court and it creates a
serious doubt about the truthfulness of their versions. Hence, such statements are
inadmissible in law.
29. Reference is made to paragraph 7 of the decision of the Apex Court in the case
of State of Rajasthan Vs. Rajendra Singh (Supra) , which is reproduced
hereunder for ready reference:-
“7. It was submitted by the learned counsel for the State that as many as six witnesses
were found injured and that would establish their presence at the place of the incident.
In our opinion, this contention is of no help to the appellant because their evidence has
not been discarded on the ground that they were not present. Their evidence was
discarded because they were found not telling the truth before the Court. It was also
submitted by the learned counsel that the evidence of PWS 1 to 4 stood corroborated
by two independent witnesses, namely, Ramjilal and Jeevan Singh. PW 8 Ramjilal had
stated that he had gone to the spot on hearing the sound of a gunshot and tried to
snatch away the gun from the respondent. But he was contradicted by his police
statement wherein he had not stated anything regarding snatching of the gun. This
omission on such a vital point has to be regarded as a contradiction and it creates a
serious doubt about the truthfulness of his version. PW 9 Jeevan Singh had stated that
he had also rushed to the spot on hearing the sound of a gunshot. He further stated
that he had made an attempt to save Harveer and in doing so, he had received an
injury. He had not so stated before the police. This also shows that this witness had
made a material improvement before the Court in order to make his evidence
acceptable.”
30. It further appears that the alleged weapon of assault though was seized but the
same was not produced before the Trial Court. This further weakens the case of the
prosecution.
Page No.# 16/21
31. Reference is made to paragraphs 38, 39, 40 and 42 of the decision of the Co-
ordinate Bench of this Court in the case of Kipa Sero Vs. State of Arunachal
Pradesh (Supra), which are reproduced hereunder for ready reference:-
“(38) In the case of Mohd. Aman and Anr. Vs. The State of Rajasthan, 1997 Cr. L. R. (SC)
452, the Apex Court noticing that the seized articles which could be the best evidence in the
proof of the claim of seizure having not been produced and exhibited during the trial was fatal
to the prosecution case. In the instant case also apart from non-production of the most
important article, i.e., the dao or knife, allegedly used by the accused-appellant coupled with
the defence version that the injuries were sustained by the victims from the sharp bamboo
sticks makes the prosecution weak.
(39) In the case of Kallikatt Kunhu Vs. State of Kerala, AIR 2000 SC 1235, the eye witnesses
stated that the dagger was used to inflict injuries upon the deceased. However, the Apex Court
found that if that be so, the dagger could not have been enclosed in a sheath. It should have
been found unsheathed and ought to have some blood stains. Under those circumstances, the
Apex Court held that the same strongly probabilised the version put forward by the
appellant that the incident did not take place in the manner narrated by the prosecution
witnesses. It was observed by the Apex Court that if the dagger was not used to inflict injuries
there was no weapon of offence produced before the learned trial court.
(40) In the instant case also apart from the fact that the seized articles were not produced,
most importantly the weapon allegedly used by the accused- appellant, it is also not the case
of the prosecution that there were blood stains. All these factors have rendered the
prosecution case highly improbable. As observed above, no amount of suspicion, howsoever,
strong it may be can lead to any conviction. In the instant case also there might be suspicion
about the conduct of the accused-appellant, but at the same time having regard to the fact that
there is inherent contradictions in the prosecution case coupled with the fatal discrepancy of
non-production of the seized articles, more importantly, the dao or knife allegedly used by the
accused-appellant has made the prosecution case weak. In such circumstance, it cannot be
said that the offence allegedly committed by the accused-appellant has been proved beyond
reasonable doubt.
(42) For the foregoing reasons and discussions, i have no hesitation to hold that the
prosecution has failed to establish the case against the accused-appellant beyond all
reasonable doubt. Consequently, the accused-appellant deserves acquittal.”
32. Reference is also made to paragraphs 4, 6 and 7 of the Co-ordinate Bench of the
Madras High Court in the case of Meenakshi Sundaram Vs. State Represented
by Inspector of Police Nagamalai (Supra) , which are reproduced hereunder for
ready reference:-
Page No.# 17/21
“4. The learned counsel for the petitioner contended that it is a serious flaw on the side of the
prosecution and that when the alleged weapon has not been marked, it goes to the very root of
the case and in such circumstances, the petitioner/A3 should not have been convicted and in
support of his contentions, the learned counsel for the petitioner/A3 has placed reliance upon
the unreported judgment of this Court in Criminal Revision Case No. 772 of 2008 [Raja v. State
by Sub Inspector of Police, Mahendramangalam Police Station, Dharmapuri District]. For
better appreciation, it would be more useful to refer Paragraph Nos. 6 and 7 of the said
judgment, which reads as follows:-
“6. The main ground of attack raised by the learned counsel for the petitioner is that the
non production of material object namely crowbar alleged used by the accused in the
commission of offence is fatal to the case of the prosecution. No doubt, the Courts
below, even though pointed out that there is a slackness on the part of the investigation
especially in not producing the material object, the courts below have concurrently held
that by itself will not be a ground to acquit the accused as the witnesses have spoken
in unison about the use of material object, during the commission of offence. Further,
the Courts below have taken note of the evidence adduced by the Doctor to conclude
that the prosecution witnesses have sustained injury due to the use of crowbar. In this
context, useful reference can be made to the decision of this Court in the case of
(Seerangan v. Forest Range Officer, Salem) 2005 Criminal Law Journal 987 wherein
this Court had an occasion to consider a case arising out of Tamil Nadu Forest Act. In
that case, this Court, by following the decision of the Hounourable Supreme Court in
Jitendera v. State of Madhya Pradesh, (2004) 1 Madras Law Weekly (Criminal) 433:
2003 Criminal Law Journal 4985 held that non-production of sandal wood and the
ambassador Car in which it was transported is fatal to the case of the prosecution. In
that case, sandalwood was transported in an Ambassador Car and the quantum of the
sandalwood log was estimated to be 196.5 kilogram.
In that case, the properties seized were not produced during the course of trial.
However, at the time of remand of the accused on 29.03.1992, the properties were
produced. Since it was night, it was directed to be produced on some other day.
Pursuant to such direction, the seized goods were produced on 02.04.1992 before the
Judicial Magistrate, Omalur, which were received in Case Property No 156 of 1996.
Again the property was returned for safe custody to be kept in the Forest Range Office.
The learned Judicial Magistrate, while passing a judgment of conviction held that the
Forest Range Officer is empowered to confiscate the property and therefore, non-
production of the properties seized is not fatal to the case of the prosecution. This
Court, having regard to the above facts, held that the seized goods which were directed
to be kept in safe custody ought to have been produced by the respondent at the time
of trial. Therefore, this Court in the above decision held that the non-production of the
seized goods is fatal to the case of the prosecution.
7. It is pertinent to point out that the main case of the prosecution is that the accused
attacked the complainant with crowbar, but, admittedly, the said weapon was never
recovered or produced. There is no evidence produced by the investigating Officer as
to why he has not produced the weapon. No explanation has been put forth by the
prosecution for the non production of the material object, namely, crowbar. Merely,
because there is a injury, it will not be a ground to convict the petitioner accused for the
offence. The non production of material object itself is fatal to this case.”
Page No.# 18/21
6. This Court also perused the records and it is also seen that the prosecution has not taken
steps to mark the X-Ray of the victim taken at the time of admission at the Hospital, which is
also a flaw.
7. Considering the facts and circumstances of this particular case, this Court finds that the
delay in registering the F.I.R., could not be taken as a ground for acquitting the accused,
however, when the material object had not been produced and marked before the Court below
during the trial and when there is no reason or explanation with regard to the same, as per the
decision of this Court in Criminal Revision Case No. 772 of 2008 [Raja v. State by Sub
Inspector of Police, Mahendramangalam Police Station, Dharmapuri District], the non-
production of the material object would be fatal to the prosecution case. Moreover, this Court
finds that the non-marking of the X-Ray is also a flaw, which affects the prosecution case. In
such circumstances, the conviction and sentence awarded by the Court below are liable to be
set aside.”
33. It appears that the Trial Court has convicted the accused/petitioners under
Section 341/325/34 of IPC based on such evidence. Paragraphs 15, 17 and 18 of the
said Judgment are reproduced hereunder for ready reference:-
“15. In the instant case PW 2 to PW 4 can be said independent eye-witnesses and they are
star witnesses. Their evidence clearly shows that the occurrence took place in the house of the
informant. PW3 who is the neighbourer of both informant and the accused persons has clearly
stated in his testimony that the accused persons assaulted the informant with bamboo lathi
after entering into her house. From the evidence of PW4 it can be presumed that the accused
persons commissioned the alleged occurrence. I find nothing to discard the evidence of PW 2
to PW 4. It is evident that the accused persons are nearest relatives of the informant.
Considering all aspects, I also find nothing to disbelieve the evidence of PW1.
17. Where there is cross-case, Court is to see who the aggressor was. Admittedly there is a
cross-case brought by the accused side. In the cross- case, PW 3 & PW 4 are can be said
independent witnesses and their evidence is totally silent at what time the occurrence took
place. PW 2 of the cross-case is the accused person of this case and her evidence shows that
the occurrence took place at 5:00 pm. Her evidence is silent where the occurrence of cross-
case took place. In this regard her evidence is supported by her husband. PW 4 of the cross-
case had not seen the occurrence. Upon perusal of CD, it appears that PW3 did not state
before the police that he saw the occurrence. It is doubtful that PW3 saw the occurrence. In
view of discussion made above, it is doubtful that the occurrence of the cross-case took place
on 10.09.2009 at 5:00 Pm in the house of the informant. Ext.3 is the injury report which shows
that the informant Smt. Draupadi Barman sustained fracture of left ulnar bone. PW 5 Dr. M.
Kalita is the medical officer who examined the informant and found the following injuries
namely (a) Tenderness on left forearm, left arm and left cheek and (b) Fracture on left Ulnar
Page No.# 19/21bone. Accordingly the fracture on left bone is grievous in nature caused by blunt object.
Grievous hurt in defined in the 320 of the IPC. The following kinds of hurt only are said as
“grievous”:
First- Emasculation
Secondly – Permanent privation of the sight of either eye
Thirdly – Permanent privation of the hearing of either ear.
Fourthly – Privation of any member or joint.
Fifthly Destruction or permanent impairing of the powers of or joint.
Sixthly Permanent disfiguration of the head or face.
Seventhly Fracture or dislocation of a bone or tooth.
Eighthly- Any hurt which endangers life or which causes the sufferer to be during the space of
twenty days in severe bodily pain, or unable to follow his ordinary pursuits.
In view of discussions made above it can be said that the fracture of ulnar bone sustained by
the informant marked as PW 1 is grievous injury. I find nothing to disbelieve Ext.3 and
evidence of PW 5.
18. In the result, the accused persons are found guilty U/Ss.341/325/34 IPC and
accordingly they are convicted.”
34. Paragraphs 12, 13, 14, 15, 16, 17, 18 of the Appellate Court’s Judgment and
Order are also reproduced hereunder for ready reference:-
“12. PW-1, the injured has stated in her evidence that as a result of the assault, her left
hand has got fracture. During his evidence PW-2, an eye witness deposed that it was
dark at the time of incident. He saw the incident, but he did not know who assaulted
whom and what was the weapon of assault. PW-3, another eyewitness, has deposed
that he went to the place of occurrence after hearing noise and saw that both the
accused persons assaulted the victim with lathi, for which the victim’s hand was
broken. PW-4 went to the place of occurrence after the incident and saw the victim
with injuries lying on the floor and accused were returning from the place of
occurrence.
13. The evidence thus disclosed that the victim suffered injuries as a result of the
assault made by the accused persons. Her left hand was broken so far injuries to the
victim is concerned, it is well proved by the prosecution in this case.
14. PW-5 is the Medical Officer and according to him he detected fracture on left ulna
on the basis of x-ray report, on the person of the victim and he has opined that the
injury was grievous and caused by blunt weapon. The ejahar as well as the evidence
on record disclosed that the accused used lathi for causing the injuries. ‘Lathi’ is
definitely a blunt weapon. It means the victim got grievous injury caused by blunt
weapon.
15. By whom, the incident was caused :-
Page No.# 20/21
“As per evidence, both the accused had assaulted the victim by using lathi and as a
result, the victim suffered injuries. Exhibit-1 has fully corroborated this fact.
16. Though the appellants took the plea that there was a cross case for which the
injured has lodged this case. But the evidence is absolutely nil on this point. The
burden lies on the defence to prove this fact, but they failed to do so.
17. The incident took place on 10/9/09 and the ejahar filed on 11/9/09. FIR shows that
the FIR was lodged on 12/9/09 i.e. two days after the incident. The accused are
related to the victim – as such there was possibility for her to gave second thought
regarding filing of the ejahar. So this delay is not fatal to the prosecution case.
18. Considering all, the appeal is partly allowed. Both the accused are acquitted from
the charge under Section 341 I.P.C. At the time of hearing on the point of sentence,
both the accused had stated that they have minor children in their houses and this is
the first offence. Considering all, sentence of imprisonment is reduced to six months
instead of one year. The order of fine is hereby maintained. In my opinion, this
sentence shall meet the ends of justice.”
35. Reading of the aforesaid findings of the Appellate Court, it appears that the
Appellate Court though acquitted the accused/petitioners under Section 341 of IPC,
however, by affirming the conviction under Section 325 of IPC reduced the sentence of
imprisonment to six months instead of one year. In view of the above, it further
appears that the Appellate Court has affirmed the conviction under Section 325 of IPC
on the basis of inadmissible evidence.
36. Hence, I am of the unhesitant view that the Judgment and Order of the
Appellate Court is palpably and manifestly erroneous and totally perverse. That being
so, the same is to be set right.
37. As such, the impugned Judgment and Order dated 30.08.2012 passed by
the learned Addl. Sessions Judge (FTC), Bongaigaon in Criminal Appeal No.
25(3)/2011 is hereby set aside and quashed.
38. Accordingly, the impugned Judgment and Order dated 20.07.2011 passed
by the learned Chief Judicial Magistrate, Bongaigaon in GR Case No. 491/2009 is also
hereby set aside and quashed.
39. Resultantly, the criminal revision petition stands allowed and disposed of.
Page No.# 21/21
40. As such, the accused/petitioners are acquitted for the offence punishable under
Section 325 of IPC. Bail bonds so furnished by the petitioners stand cancelled and
surety discharged.
Return the Trial Court Records.
JUDGE
Comparing Assistant