Page No.# 1/9 GAHC010220072012 2025:GAU-AS:15071 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.A./237/2012 ANOWAR HUSSAIN, S/O LT. LALMAMUD MIAH, VILL. KATLIJHAR, P.S. BARPETA. VERSUS THE STATE OF ASSAM, AND ANR. REPRESENTED BY PP, ASSAM 2:JAMELA KHATUN W/O- MULIM ALI R/O- VILLAGE KATLIJHAR P.O. AND P.S.- BARPETA DISTRICT- BARPETA ASSAM. PIN- 781316 Advocate for the Petitioner : MR. M A SHEIKH, MR SARFRAZ NAWAZ (AMICUS CURIAE),MS.A BEGUM,MD.M H CHOUDHURY Advocate for the Respondent : PP, ASSAM, , BEFORE HONOURABLE MR. JUSTICE N. UNNI KRISHNAN NAIR ORDER Date : 31-10-2025 Heard Mr. M.A. Sheikh, learned counsel for the appellant and Mr. Sarfaraz Nawaz, Page No.# 2/9 learned amicus curiae. Also heard Mr. M.P. Goswami, learned Addl. P.P. Assam appearing for the State/ respondent. 2. The present appeal has been instituted assailing the judgment dated 08-10-2012, passed by the learned Addl. Sessions Judge (FTC), Barpeta in Sessions Case No. 04/2010, convicting the appellant, herein, under Section 324 IPC and sentencing him to undergo rigorous imprisonment for 01 (one) year and to pay a fine of Rs. 1000/- (Rupees One Thousand), in default to undergo simple imprisonment for 01 (one) month. 3. The prosecution case, in brief, is that one Musstt. Jamela Khatun had had lodged an FIR before the Officer-in-Charge, Howly Outpost, inter-alia, stating therein that on 12- 08-2008 at around 01:00 p.m., she had asked her nephew Sadek Ali to come to her house for plucking banana from the tree. It was alleged that at that time, the petitioner, herein, along with his family members armed with dao had trespassed into the compound of the informant and assaulted her and also attacked her nephew Sadek Ali by means of a dao causing grievous injury to his person. It was further stated that on raising hue and cry, her brother Abdul Kader appeared at the spot but he was also assaulted by the accused persons by means of a dao, resulting into Abdul Kader sustaining injuries on his person. It was further stated that both the injured were shifted to the hospital. On receipt of the said FIR, a G.D. entry was made by the Officer-in-Charge, Howly Police Station and the FIR was forwarded to Barpeta Police Station for registering a case. The said FIR came to be registered as Barpeta P.S. Case No. 666/2008 under Section 147/ 448/ 326/ 307 IPC. Page No.# 3/9 On completion of the investigation, the Investigating Officer laid a charge-sheet against the appellant, herein, under Section 447/ 324/ 307 IPC. The learned Trial Court on appreciating the evidences coming on record, framed charge under Section 447/ 324/ 307 IPC against the appellant, herein. The charge on being read over and explained to the appellant, herein, he having pleaded not guilty and claimed to be tried, a trial ensued in the matter. During the trial, the prosecution had examined 08 (eight) witnesses and the appellant, herein, was examined under Section 313 Cr.P.C. On conclusion of the trial, the learned Trial Court upon appreciating the evidences coming on record proceeded, vide judgment dated 08-10-2012, to convict the appellant, herein, under Section 324 IPC and sentenced him as noticed hereinabove. Being aggrieved, the appellant has instituted the present proceeding. 4. Mr. S. Nawaz, learned amicus curiae appearing for the appellant after taking this Court through the evidences adduced during the trial has submitted that the assault as committed upon the victim by the appellant, herein, stood established beyond reasonable doubt. He submits that the injury as sustained by the victim was corroborated by the evidences of the Medical Officer who had deposed as PW-6 during the trial. He further submitted that the nature of the injuries sustained by the victims would bring the assault on them within the provision of Section 324 IPC. Accordingly, he submits that the conviction of the appellant, herein, under Section 324 IPC by the learned Trial Court would not mandate any interference. Page No.# 4/9 5. Having made the above submission, the learned amicus curiae has submitted that the offence involved in the matter was committed by the appellant, herein, on 12-08-2008 and around 17 years have lapsed since the occasioning of the said offence. Accordingly, he submits that this is a fit case wherein the appellant, herein, is entitled to be extended with the benefit of the Probation of Offender Act, 1958. He further highlights that the learned Trial Court while proceeding to deny extension of the provisions of the Probation of Offenders Act, 1958 had not assigned any reasons for the same. 6. Per contra, Mr. M.P. Goswami, learned Addl. P.P. Assam has submitted that the evidences coming on record when meticulously perused brings to the forefront the fact that the appellant, herein, had without any provocation assaulted the victims and accordingly, the conviction of the appellant, herein, under Section 324 IPC would not mandate any interference. He submits that the learned Trial Court had leniently considered the sentencing of the appellant, herein, and the same would also not mandate any interference. 7. I have heard the learned counsel for the parties and also perused the materials available on record. 8. The learned Trial Court upon appreciating the evidences coming on record had meticulously dealt with the issues arising in the matter and thereafter, had drawn the following conclusions: “14. The above is the threadbare discussion of the evidence of the prosecution witnesses and the defence witness. The defence witness admitted that the injured had sustained injuries on their persons but she has admitted that the dispute exists between the parties in connection with the ownership of the Page No.# 5/9 disputed land and at the same time she was silent as to how the injured got injuries on their persons. This being so no credence can be given on the evidence of this DW1, except the point of the land dispute and injuries sustained by the injured. It is true that every case is in the final analysis would have to depend upon its own facts. Although the benefit of every reasonable doubt should be given to the accused, the Court should not at the same time reject the evidence which is trustworthy and cogent. Now it is necessary to point out at this stage the points of argument put forwarded by the learned Addl. P.P. for the State in support of the prosecution case as well as the submission of the learned counsel for the defence. The learned Addl. PP. Mr. M.U. Ahmed in course of his argument has submitted that the prosecution evidence amply corroborated by medical evidence to prove the involvement of the accused person with the alleged charge levelled against him which he committed against the injured on the date of occurrence. The evidence of the prosecution witnesses could not be impeached in the cross examination to discredit their cogent, consistent and corroborative evidence to prove the prosecution case beyond all reasonable doubt. 15. Confronting the submission the learned Addl. PP for the State, the leaned advocate appearing on behalf of the accused Mr. F. Rahman in course of argument has submitted that the prosecution has failed to prove the case beyond all reasonable doubt as the medical report of the injured is incomplete and the final report of the injured is yet to be collected as such on the basis of the said incomplete injury report conviction cannot be sustained. Apart from that the learned counsel has submitted that inimical relationship between the parties prior to the incident was going on and also there is an admission on the part of the prosecution witnesses regarding the pendency of numbers of cases so the testimony of the prosecution witnesses can be discarded at this point of material particulars and it casts serious doubt to form an adverse opinion that whatever stated by the prosecution witnesses was the out come of the said inimical relationship. The learned counsel has also submitted that the independent witnesses deposed nothing about the alleged incident and the rest witnesses are the injured and the informant only as such being the members of the same family their testimony cannot be consider as reliable and trustworthy as such no credence can be given. 16. Keeping in view of the submission of the learned counsel of both sides, while apprising the evidence of the PW1 on record it is manifest that her evidence so far as the complicity of the accused in assaulting the injured persons on the date of occurrence has not been suffered from any contradiction with the first information report marked as Ext.1. She has consistently deposed without any inconsistency or contradiction that how on the date of the alleged incident at about 10 AM the accused Anowar came to her house when she along with her nephew Sadek Ali was sitting at her house and how accused on the pretext of plucking banana from the tree without any reason or rhyme causing serious injuries on his person. However this witness has admitted about the existence of dispute along Page No.# 6/9 with the accused prior to the alleged incident with regard to the land whereupon the banana tree was planted. This witness also deposed that the wife of the accused Sakina assaulted Sadek by means of a pira at the initial stage and as soon as the stone hit on her chest she became senseless and fell down on the ground, so she did not see any incident. On careful perusal of the evidence of the PW2 Sadek Ali it appears that he did not corroborate the testimony of the PW1 regarding the part played by the wife of the accused at the initial stage of the incident. Therefore the allegations of the PW1 relating to the assault of the wife inflicted on the person of accused cannot be construed as reliable. The PW2 in his evidence categorically deposed that accused voluntarily caused injury on his left ear and the medical evidence also supported the injury sustained by the injured. But the PW3 has corroborated the testimony of the injured since his evidence manifest that he arrived at the place of occurrence immediately and he was also assaulted by the accused. His evidence also shows that the accused also assaulted him causing injury on his person. Apart from that there is a gross discrepancy in the evidence of the PW4 and PW5. The evidence of theses two witnesses manifest that they were not the eyewitness to the alleged incident since they arrived at the spot after the incident and the material available with the record shows that both the parties have enmity before the alleged incident and number of cases are pending in between them. 17. It is true that in order to rope the accused in an offence under section 307 IPC it is the duty to find out at the outset whether the essential ingredients of section 307 IPC is very much in existence or not. To bring the accused within the ambit of section 307, it must be shown that the accused acted in such intention and knowledge and to such the circumstances that if he by that act caused death, he would be guilty of murder. In other words the intention and knowledge to commit murder must exist. In the instant case the medical evidence never disclosed the opinion of the doctor as the investigating agency failed to bring the complete report of the injured. This being so there is complete lack of intention on the part of the accused to commit and offence to rope him under section 307 IPC and presumption cannot be drawn that the accused had an intention to kill the injured. But in this case it transpires that witnesses never denied that the point of injuries sustained by the PW2 and PW3 and though the medical report is incomplete it palpably shows that the injuries sustained by the injured were sharp cutting injuries. No doubt enmity exists between the parties before the alleged incident but that does not mean that the accused is at liberty to take the law into his hand and thereby caused the sharp cutting injuries on the persons of the PW2 and PW3. Apart from that the impression of the DW1 is not at all a reliable evidence gains strength from the fact that though she claims that the accused is not guilty of any incident as depicted by the PW1 in her FIR. Her evidence shows that she was not present at the time of incident but at the same time she did not deny as to the injuries sustained by these two injured persons and the presence of the accused at the relevant point of time at the place of occurrence. In view of the Page No.# 7/9 fact that I find the evidence of DW1 unworthy of trust, therefore 1 find no reason to give any credence to her evidence that the accused did not assault the injured persons. 18. There is no dispute that the parties are related to each other. The evidence of the prosecution witnesses is found to be clear, cogent and credit worthy and the defence cross examined the prosecution witnesses at length. But they could not be dislodged and no material contradiction could be elicited from them to discard their testimony. The basic version of the prosecution witnesses is that the accused came to the court yard of the PW1 and caused hurt to Sadek and Abdul Kader stand beyond all reasonable doubt. It has already been held that the accused had no intention to kill the injured persons Sadek and Abdul Kader, as such he cannot be convicted U/S 307 IPC. It is simply proved that accused Anowar Hussain dealt blows Sadek Ali and Abdul Kader with a dao caused cut injuries on the person of Sadek Ali on his left ear and left cheek and Abdul Kader sustained injury on his neck. The medical report reveals that there was active bleeding in the injuries of the injured. Of course there is no opinion of the doctor but considering the nature of injuries in can be construed that the injuries sustained by the injured were simple in nature caused by sharp cutting weapon and the injuries sustained by the PW2 and PW3 fall within the category of Section 324 IPC. Having regard to the antecedent of the accused person and se facts and circumstances of the case and gravity of offence, I am of the view that the accused person is not entitled to any benefit of Probation of Offenders Act or provision of Section 360 Cr.P.C.” Basing on the above conclusions, the learned Trial Court proceeded to convict the appellant, herein, under Section 324 IPC and sentenced him as noticed, hereinabove. 9. This Court has perused the conclusions drawn by the learned Trial Court in the light of the evidences coming on record and finds that the conclusions were so drawn basing on due and proper appreciation of the evidences coming on record and no infirmity is found therein. 10. Having drawn the above conclusions, this Court notices that the offence, involved, was committed by the appellant, herein, on 12-08-2008, 17 (seventeen) years has lapsed since the date of commission of the offence by the appellant, herein. From the materials available on record, this Court does not find that the appellant, herein, was involved in Page No.# 8/9 the commission of an offence of similar nature either prior to 12-08-2008 and/ or thereafter. The appellant is also found litigating in the matter for the last 17 years initially before the learned Trial Court and presently before this Court in the present appeal. 11. This Court is of the considered view that considering the long lapse of time, since the date of commission of the offence by the appellant, he is entitled to be extended with the benefit of the Probation of Offenders Act, 1958. The said benefit being permissible to be extended by this Court while exercising its appellate jurisdiction, this Court directs that the appellant, herein, be not required to undergo the sentence of imprisonment and he be extended the benefits under the provisions of the Probation of Offenders Act, 1958. This Court has, however, not interfered with the imposition of fine by the learned Trial Court. 12. As such, it is directed that the appellant, herein, will file 02 (two) sureties to the tune of Rs. 10,000/- (Rupees Ten Thousand) each, along with a personal bond before the learned Sessions Judge, Barpeta and undertake to the effect that the appellant shall keep peace and good behaviour during the period of 06 (six) months from the date of filing of such bond. The aforesaid bond shall be filed by the appellant within a period of 03 (three) months from today, along with deposit of the fine amount before the court of learned Sessions Judge, Barpeta, within a period of 03 (three) months from today. 13. With the above observations and directions, the present appeal stands disposed of. 14. Registry to send back the TCR forthwith along with a copy of the present order for information and necessary action. Page No.# 9/9 15. Before parting with the records, this Court appreciates the able assistance rendered by Mr. Sarfaraz Nawaz, learned amicus curiae, towards disposal of the matter. JUDGE Comparing Assistant