BINOD RAI Vs. STATE OF MEGHALAYA

JUDGEMENT

(1.) This criminal appeal is directed against the judgment and order dated 22-11-2007 passed by the learned Sessions Judge, Shillong in Sessions Case No. 9 of 2001 convicting the appellant under Sec. 326. IPC, sentencing him to undergo 2 (two) years of imprisonment with a fine of Rs. 5,000/- and in default of payment thereof, to undergo another two months of imprisonment.

(2.) The case of the prosecution is that on 23-4-2001 between 7 and 7.30 p.m. the accused/appellant assaulted the injured, namely, Bibhisan Rai, ("the victim" for short) with an iron rod with the result that the victim sustained grievous injury. The Laban Police duly registered a case being Laban P.S. Case No. 29(5)2001 u/S. 325, IPC over the assault and, in the course of investigation, they found a prima facie case against the appellant under Sections 325 and 307, IPC and charge-sheeted him accordingly. The learned Sessions Judge ultimately withdrew the case from the file of the learned Assistant Sessions Judge when the incumbent retired from service and took up the case by himself. By the time the learned Sessions Judge withdrew the case, a charge under Section 307, IPC had already been framed against the appellant. In the course of trial, the prosecution examined as many as 14 witnesses, examined the appellant under Section 313, Cr. PC. and also examined the defence witnesses produced by the appellant. After conclusion of the trial, the learned Sessions Judge by the impugned judgment and order found the appellant guilty of the offence punishable under Section 326, IPC and convicted and sentenced him in the manner indicated earlier. Aggrieved by this, this appeal is now preferred by the appellant.

(3.) Assailing the impugned judgment of conviction, Ms. A. Paul, the learned counsel for the appellant contends that there was no independent witness to bring home the charge against the appellant, and the learned Sessions Judge has wrongly convicted the appellant merely on the basis of the evidence of interested witnesses such as the victim as well as his minor son (seven years old at that time), who was examined as P.W. 14. She maintains that the learned Sessions Judge has completely overlooked the contradictory evidence given by the victim (P.W. 1) and P.W. 14, and in the absence of corroboration of the version of the victim from independent witnesses, the conviction of the appellant is highly unwarranted, and is not sustainable in law. It is also contended by the learned counsel for the appellant that the alleged weapon of assault was not even seized from the appellant but was seized from none of other than the victim himself and, that too, only after about 19 days of the incident nor was the same positively identified by the appellant or P.W. 14 who were not sure about whether it was a wooden stick or an iron rod : the learned Sessions Judge thus completely erred in law in convicting the appellant on such vague evidence. According to the learned counsel, the prosecution is unable to show the exact date on which the FIR was lodged on 23-4-2001 (the date of incident) or 1-5-2001 as indicated in the FIR i.e. Paper Mark E or on 2-5-2001 as per the FIR at Exhibit 9, thereby raising the possibility that there was inordinate and unexplained delay of about 7 days in lodging the FIR. The learned counsel, therefore, submits that in view of such unexplained delay, serious doubt is created in the case of the prosecution : the appellant is thus, at any rate, entitled to acquittal on benefit of doubt.