Sep 13, 2013 ... thousand) u/s.326 I.P.C., i.d., imprisonment for 3 (three) months and also
imprisonment for 1 (one) month u/s.341 I.P.C., both sentences to run ...
IN THE COURT OF THE SESSIONS JUDGE, CACHAR, SILCHAR. (Criminal Appellate Jurisdiction) Crl. Appeal No.6 of 2013. Present :-
Shri S.K. Sharma, Sessions Judge, Cachar, Silchar.
Jasim Uddin Barbhuiya @ Lunai.
.......... Accused/Appellant.
- Versus The State of Assam.
.......... Respondent.
Appearance :For the appellant
:- Sri Y.A. Barbhuiya, learned advocate.
For the respondent
:- Sri S. Dutta, learned P.P.
Argument heard on
:- 26.07.2013 and 29.08.2013.
Judgment delivered on
:- 13.09.2013. J U D G M E N T
1.
This Appeal is directed against the judgment and order of conviction
dated 05.01.2013, passed by the learned Chief Judicial Magistrate, Cachar Silchar in G.R. Case No.240/2001, convicting the accused/appellant and sentencing him to undergo R.I. for 3 (three) years and to pay fine of Rs.5,000/- (Rupees five thousand) u/s.326 I.P.C., i.d., imprisonment for 3 (three) months and also imprisonment for 1 (one) month u/s.341 I.P.C., both sentences to run concurrently. 2.
The case of the prosecution at the trial was that on 01.02.2001, the
informant Md. Nazim Uddin Laskar lodged an F.I.R. before the Borkhola P.S., stating inter-alia that on that day at around 4 p.m., while he along with his wife and a suckling baby were proceeding from Durganagar towards his house, then near the house of Hinoi Mia of Ujan Gram, the accused/appellant attacked him with a dao and a gun. When his wife tried to stop the accused, she was attacked by dao on her person causing grievous injury. When the accused/appellants tried to save his wife, the accused/appellant attempted to fire towards him. Then he saved himself by running away and concealing himself behind the womenfolk gathered there. 3.
The police registered a case and after investigation, charge-sheet
u/s.341/326/506 I.P.C. was submitted and the learned trial Court framed charges
u/s. 341/325/326 I.P.C., which the accused/appellant denied and claimed to be tried. 4.
At the end of the trial, the learned trial Court on consideration of the
evidence and after hearing the parties, found the accused guilty u/s.341/326 I.P.C. and convicted him accordingly. 5.
Heard Mr. Y.A. Barbhuiya, learned counsel for the accused/appellant and
Mr. S. Dutta, learned P.P. for the State. 6.
Amongst the various grounds taken in the appeal, it is urged that the PW-
1 admitted that he lodged the Ext.1 F.I.R., which was received at Borkhola P.S. at 7 p.m. on 01.02.2001 and that after lodging of the F.I.R., police came to the place of occurrence and took his wife therefrom to hospital much later i.e. after 7 p.m. On the other hand, the PW-6 (I.O.) who submitted the charge-sheet, admitted that the previous I.O. recorded the statement of the alleged victim (PW-2) at 6 p.m. on 01.02.2001 at the alleged place of occurrence. 7.
If that be so, the information on the basis of which the statement of the
alleged victim was recorded at 6 p.m. on that date has not been proved before the learned trial Court and concealment of such information creates doubt about the prosecution story, submits learned Defence Counsel. 8.
I have perused the case diary and it appears therefrom that the G.D. Entry
on the basis of which the previous I.O. claimed to have recorded the statement of the alleged victim has not been exhibited and therefore, the defence did not have the opportunity to cross-examine the I.O. in this regard, which in my view, has caused prejudice to the accused. Moreover, the prosecution is under a duty to place all relevant material before the Court and in case of failure to do so, the Court is entitled to call for such material of its own. The production of the original G.D. Entry or extract thereof before the learned trial Court was imperative to a just decision of the case. 9.
In view of the above, the impugned judgment and sentence is set aside
and the case is remanded back to the learned trial Court with a direction to bring the aforesaid G.D. Entry on record and after allowing reasonable opportunity to the parties and after hearing both sides, to decide the case afresh. No other evidence shall be allowed to be adduced. 10.
Send back the trial court records along with the case diary to the learned
trail Court immediately.
11.
The accused/appellant is directed to appear before the learned trial Court
on 25.09.2013 to receive instruction from the said Court. Given under my hand and seal of this Court on this the 13h day of September, 2013.
Sessions Judge, Cachar, Silchar. Dictated & corrected by me.
Sessions Judge, Cachar, Silchar. Dictation taken & transcribed by Sujit Kr. Das.
Crl. Appeal No.6/13.
13.09.13. Appellant is present. Judgment is delivered in the open Court the record of which is kept on the record in separate sheets. The impugned judgment and order of conviction and the sentence dated 05.01.2013 are set aside and the case is remanded back to the learned trial Court with a direction to bring the aforesaid G.D. Entry on record and after allowing reasonable opportunity to the parties and after hearing both sides, to decide the case afresh. Send back the trial court records along with the case diary to the learned trail Court immediately. The accused/appellant is directed to appear before the learned trial Court on 25.09.2013 to receive instruction from the said Court.
Sessions Judge, Cachar, Silchar.
