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IN THE COURT OF THE SESSIONS JUDGE, MORIGAON
CRIMINAL APPEAL NO. 13/2013
Under Section 374 (3) (a) Cr.P.C.
[From the Judgment and sentence of conviction
dated 23.04.2013 passed by the Ld. C.J.M.,
Morigaon, in G.R. No.974/2010]
PRESENT : SRI I. HUSSAIN
Sessions Judge,
Morigaon.
Sri Dhani Ram Borah . … Appellant
-VsState of Assam ….. …… Respondent.
Appearance :
Mr. B. C. Saikia, Advocate : For the Appellant
Mr. P.B. Dey, P.P.
: For the Respondent
Date of Hearing
:- 02.09.2013.
Fixed for Judgment
:- 11.09.2013
Judgment delivered on
:- 11.09.2013
J U D G M E N T
1. The convicts herein as appellant has assailed the
Judgment and sentence of conviction dated 23.04.2013, passed by the
learned Chief Judicial Magistrate, Morigaon in G.R. Case No.
974/2010, whereby the appellant was convicted under Section
323/325 I.P.C. and sentenced him to suffer S.I. for three months under
Section 325 IPC and S.I. for one month under Section 323 I.P.C. The
sentences are to run concurrently.
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2. Prosecution case, as set up during the trial, in brief, is
that the informant Sri Babul Kakoti lodged an ejahar at Mikirbheta
P.S. on 11.09.2010 alleging inter alia that the accused person namely,
Sri Dhaniram Borah wrongfully restrained him on his way to a shop,
situated at Borigaon village on 11.09.2010 at about 7.30 A.M. while he
was going to the residence of a shopkeeper and inflicted fist-blows
and slaped him at the instigation of one Sri Sarbeswar Bora and Sri
Prasanna Bora. Informant raised hue and cry and on hearing it, his
wife Jyotsna Kakoti arrived at the place of occurrence. Accused
person namely – Sri Dhaniram Bora also struck, the wife of the
informant, Smti. Jyotsna Kakoti with a bamboo stick on her stomach.
The ejahar was registered as Mikirbheta P.S. Case No. 109/2010,
under Section 341/325/34 I.P.C. and started investigation. After
completion of investigation, I/O submitted charge sheet against the
accused person under section 341/323/325 I.P.C. On his appearance
and after perusal of materials, charge was framed under Section
341/325/323 I.P.C. Contents of charge, on being read over and
explained to the accused person, he pleaded not guilty and claimed to
be tried.
3. In course of trial, prosecution has examined 7 (seven)
witnesses including the M.O. Defence cross examined them to rebut
the charges but did not adduce evidence in support of his defence.
After hearing argument of both sides, learned Chief Judicial
Magistrate, Morigaon, delivered the Judgment convicting the accused
person and passed sentence as stated above. Being highly aggrieved
and dissatisfied with the impugned Judgment and Order of the
learned trial Court, the appellant have preferred this appeal on the
following grounds :
i. That the learned Court below had erred in law and fact
while preparing and delivering the Judgment and Order
and hence liable to be set aside;
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ii. That the learned trial Court failed to consider the
ingredients of Sections 325/323 IPC which is totally absent
in the instant case;
iii. That the appellant is having old mother, wife and children
who have to be looked after by the appellant ;
iv. That the learned Court below failed to scrutinize the
evidence of PWs which are full of contradictions;
v. That the prosecution side though examined five numbers
of unofficial witnesses, but PW-1, 2 and 3 are interested
and the evidence of prosecution witnesses are full of
contradictions ;
vi. That the evidence of PW-4 and PW-5 failed to support the
prosecution case;
vii. Prosecution failed to examine the I.O.
viii. That the learned Court below acted on presumption and
convicted the accused appellant;
ix. That the examination of accused under Section 313
Cr.P.C. is defective;
4. Under the above facts and circumstances, appellant
prayed to admit the appeal, call for the case records, stay execution of
impugned order, allow the appellant to remain on previous bail and
after hearing both sides, set aside the impugned Judgment and order.
: Point for determination :
5. Whether the impugned Judgment and sentence of
conviction dated 23.04.2013 passed in G.R. Case No.974/10 by the
learned Chief Judicial Magistrate, is bad in law and is liable to be
set aside in view of the grounds mentioned in the memorandum of
the appeal ?
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Discussion, Decision & Reasons thereof
6. I have heard learned counsel for both sides and gone
through the entire case record including the evidence and the
Judgment pronounced by the learned Chief Judicial Magistrate,
Morigaon.
7. At the time of hearing the appeal, appellant Sri
Dhaniram Bora filed Petition No. 1165/13 praying for granting
permission to compound the case and stated that the informant and
the injured have settled the matter outside the Court with the help of
local people in a village mel.
8. Both parties have also filed joint petition No. 1161/13
stating that the case was settled by the local people in a village mel,
and they have accepted the decision of that village mel and
compromised the matter between them. So, they have prayed before
this Court to settle the matter on compromise. The injured namely, Sri
Bubul Kakati and Smt. Jyotsna Kakati, are present. Heard them
personally. They have admitted that the compromise arrived at the
village mel. It is also submitted that the appellant is their neighbour
and as a gesture of good will and to live peacefully, they, out of their
own accord accepted the compromise and prayed to dispose of the
case on compromise. I have also heard the appellant who assured to
live peacefully with the injured persons. Learned P.P. identified the
injured persons.
9. I have gone through the provision of law. Section 320
Cr.P.C. provides for compounding of offences under Section 323/325
I.P.C. with the person to whom hurt was caused. Section 320(1)
Cr.P.C. provides for compromise without permission of the Court,
which covers Section 323 I.P.C. and Section 320(2) Cr.P.C. provides
compromise of offences with the permission of the Court and Section
325 I.P.C. falls under this Section. As the parties are willing to settle
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the matter and the injured persons agreed to compound the case with
the appellant, to bring peace and harmony between the parties, as
they are neighbours, so, I am inclined to grant permission to
compound the case between the parties.
10. In view of the above, without going into the merit
of the case, the prayer to grant permission for compounding the case
vide petition No. 1165/13 is allowed. Consequently, the prayer to
compound the case vide petition No. 1161/13 is also allowed. The
Judgment and Order of conviction dated 23.04.2013 passed by learned
C.J.M. in G.R. Case No. 974/2010 is set aside as the parties have
compounded the case as per provision of Section 320 Cr.P.C. Accused
appellant Sri Dhaniram Borah is acquitted from the charge and set at
liberty.
ORDER
11. In the result, the appeal is disposed on compromise.
The impugned Judgment and sentence of conviction dated
23.04.2013 passed by learned C.J.M., Morigaon in G.R. Case No.
974/2010, under Section 325/323 I.P.C. is hereby set aside. The
accused-appellant is acquitted from the charge of Section 325/323
I.P.C. and he is set at liberty.
Appeal is disposed accordingly on compromise. Send
back the lower Court case record.
Judgment delivered in the open Court, on this 11th day
of September, 2013 under my hand and seal.
Dictated and corrected by me
Sessions Judge
Morigaon
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