MOHAN GORAI v. STATE OF WEST BENGAL — 1997 DIGILAW 340 (CAL)

S. K. MOOKHERJEE, RABIN BHATTACHARYYA, JJ. ( 1 ) THIS criminal appeal is directed against the order of convictions and, sentence passed by the learned Trial Court in Session Case No. 64 of 1991. Session Trial No. . 1 of 1993 as the appellants were convicted for having committed the murder of Suchand and sentenced to suffer rigorous imprisonment for life under Section 302/149 of the IPC and they were further convicted and sentenced under Section 148 IPC and 23/149 of the IPC. All, the sentences are to run concurrently. ( 2 ) THE case reveals the hunger for land which snapped off and life of a young boy. The thirsty claim for land generated fluter and fury over which there was a clamour of steel. The feudalism is unabated and still continuing and the world is yet to know to how many of us will become the victim of such chronic land dispute; No body knows what will be fall on us the next day. ( 3 ) THE case demonstrates the weary tale of a village Carcara, P. S. Joipore, within the District Purulia, where the incident occurred shortly after the noon of 9. 5. 88 dealt a crucial blow to the prosecuting party where the accused persons and the prosecuting party looked their horns in respect of possession of CS Plot No 2092 appertaining to R. S. Plot No. 2778 ad-measuring 33 decibel of lands. It became the cynosure of trouble about the raining of a wall to the northern portion of the land. The accused persons well armed and to the utter dismay of the prosecuting party suddenly attacked the prosecuting party and indiscriminately shoot arrows. ( 4 ) IN course of darting arrows by Mohan Gorai, Suchand suffered an injury who profusely bled as the arrow pierced into his chest. Mohan since undaunted gave a publicity during the arrack to put an end to the lives of the prosecuting party. The other accused persons namely Nirmal pelted stones for which Kalipada the maker of the FIR sustained injury on his, left leg below the knee. Their endeavour to save the life of such and did not fetch any result as he breathed his last on 11- 5-1988. Immediately the law was set Into motion and, a PS Case was started being P. S Case No. 3 dated 9-5-1988. Their endeavour to save the life of such and did not fetch any result as he breathed his last on 11- 5-1988. Immediately the law was set Into motion and, a PS Case was started being P. S Case No. 3 dated 9-5-1988. Upon concussion of the investigation by the Police the investigating agency submitted the charge sheet against the accused. ( 5 ) THE case was put up for trial before the learned SDJM who upon consideration of the factual exposure of the case committed the case and the accused to the court of Session to stand trial. The Session Court after taking cognizance under Section 193 of the Code of Criminal Procedure framed charges against the accused persons under Sections 147/148/326/506/337 and302 of the IPC which; were read over and explained to them who pleaded not guilty to charges so framed against them and Claimed to he tried. ( 6 ) THE case of the defence as can be gathered from the trend of the cross-examination and other materials reflected is of bare innocence. The accused had to resist the onslaught of the prosecuting party the chief aim was to dispossess them from the land in dispute. ( 7 ) THE prosecution in this case has examined as many as 13 witnesses but none has been examined on behalf of the defence. The learned counsel appearing for the defence has said much emphasis or stress that the order of conviction and sentence is devoid of force as the learned trial court ignored the major discrepancies deeply seated in the FIR and the evidence on record. The FIR and the evidence on record has laid an. overwhelming confusion about the case of the prosecution as the inconsistencies overwhelmingly demonstrated. The court, according to the learned counsel, has been led by probabilities divorced from proof which is the basic structure of the criminal jurisprudence. The injury sustained by the accused did not earn any appreciation from the learned trail court which is suggestive of the fact that the prosecution is guilty of suppression of the gensis of the occurrence. The common object fielded in the order of conviction and sentence liabiling the accused persons for the offence complained of is pre-eminently divorced from fact and law. The order of conviction and sentence according to the learned counsel suffers from perversity as the perverse appreciation of the, evidence. IS dominant. The common object fielded in the order of conviction and sentence liabiling the accused persons for the offence complained of is pre-eminently divorced from fact and law. The order of conviction and sentence according to the learned counsel suffers from perversity as the perverse appreciation of the, evidence. IS dominant. ( 8 ) THE trial court after consideration of the evidence on record and the examination of the accused persons under Section 313 of the Code of Criminal Procedure was satisfied about the proof of commission of the offences by the accused persons and. accordingly passed the order of conviction hereinbefore stated when this appeal for the reversal of the order of conviction and sentence. ( 9 ) THE learned counsel appearing for the State has argued with force that the evidence is complete about the proof of offence committed by the accused persons which has been proved to the, hilt and the conclusion thus inescapable that the accused persons cannot avoid the order of conviction and sentence. ( 10 ) IT is upon there premises the question that became germane for consideration of the court is about the legality or otherwise of the order of conviction and sentence. ( 11 ) TO begin with it is seen that there are certain admitted facts which according to is should find their room in the judgment the aim of which is to appreciate the case in its proper perspective. We catalogue below those undisputed facts- revealed from the evidence it stands out: (1) the parties are related to each other excepting Monu Singh who is a servant of the accused Mohan; (2) the incident related to CS Plot No. 2092 and the RS Plot No. 2778; (3) the RS Plot NO. 2778 bears an area of 33 decibels; (4) the property over which dispute raised was in ejmali property; (5) to prevent the breach of peace, a security proceeding was initiated before the occurrence by the accused persons under Section 144 of the CRPC against the prosecuting party which was converted to a proceeding under Section 145; (6) there was a meeting of the Panchayat to settle a dispute amicably and ,order passed under Section 144 CRPC prohibited the prosecuting party from entering upon the dispute land; and (7) Suchand was done to death as evident by the post-mortem report. ( 12 ) NOW the central question left for decision of the court is as to whether the accused could be made liable for committing the murder of Suchand and injuring PW-1 Kalipada who is the ill fated father of the deceased. ( 13 ) TO arrest the commission of offence perpetrated by the accused persons, the prosecution has merely relied on the evidence of PW- 1 Kalipda Gorai, PW-2 Gopinath Gorai, PW-3 Shyam Mahato, PW-4. Charku Gorai, PW-5 Ghashibala Gorai, PW-6 Jitualal Mahato, PW-7 Bedani Gorai, PW-8 Kedar Chandra Gorai and PW-9 Narayan Gorai. ( 14 ) THE witnesses examined so far by the prosecution to the occurrence and the commission offence are all uniform in there, evidence that Suchanad was struck by evidence an arrow darted by Mohan one of the appellants from the roof of his premises. The witnesses have given a full account in their evidence about the mode and manner the incident occurred and its after math accusing all the accused persons guilty of the offence who are armed with bows and arrows by the evidence on record. The incident had two phases, one on the ground while the other on the roof. There was indiscriminate shooting of arrows that has been recounted by the witnesses named above while the accused persons on the ground and the situation took a serious turn when Mohan climbed the roof and struck the arrows that pierced into his chest. For the sake of brevity to rule out the obscurity, we give a bried narration of the occurrence, I along with Suchand and Narayan was repairing a dilapidated hut of mine then suddenly the accused persons namely Mohan armed with bows and arrows, Aabinash armed with the same weapon and Jagabandhu armed with the same weapon. Nirmal with stone pieces in his hands, Santhosh with stone pieces and Manu Singh with tala in his hands came there and the first three accused persons started shooting arrows from their bows aiming us. ( 15 ) HE has again given an account in his evidence, when he says, seeing that arrows were not hiting us Mohan was mounted on the roof of his house just inform to that place and therefrom he shot an arrow from his bow aiming at his second son Suchanad thereafter, that arrow pierced into the left chest. ( 15 ) HE has again given an account in his evidence, when he says, seeing that arrows were not hiting us Mohan was mounted on the roof of his house just inform to that place and therefrom he shot an arrow from his bow aiming at his second son Suchanad thereafter, that arrow pierced into the left chest. Then Nirmal threw a piece of stone towards me and he hit me below the knee joint; ( 16 ) THE witnesses are very much aggressive their evidence to lay blame at the door of the accused persons, in particular. Mohan Gorai who according to them is the chief architect of the whole show out it is an exiometic truth under the criminal jurisprudence that the evidence of the witnesses so disclosed must reflect the actual state of affairs. The witnesses have all along maintained in their evidence that there was distance between the accused persons on the one hand and the prosecuting party on the other say 10-12 cubic it If that is-so how did Mohan one of the appellants sustained injury on the left side of the forehead the nature of wound, was incised. There was bleeding from the injury that has, been affirmed by PW-13 Dr. Satyabarata Mohanta. This also proves without any shred of obscurity that there was maramari, between the parties which the prosectiting party secretly kept concealed in their evidence to prove their innocence. It attributes to a manoeuvre to shrive the guilt. ( 17 ) THE above leads to an irresistible conclusion that the prosecuting party did not render any rue and faithful account of the genesis of the occurrence. Though it is not required in all cases that the prosecuting party owes an obligation to explain the injury yet the prosecution party to make their evidence dentless must give a straight forward account of the occurrence. The concealment of the above proves the evidence to be insalubrious. ( 18 ) PW-13 the doctor is a most, disinterested witness who has proved the injury of Mohan which has to be contradicted by the prosecution in accordance with law. But that does not mean at any rate that the accused persons could be absolved from committing the criminal liability. ( 18 ) PW-13 the doctor is a most, disinterested witness who has proved the injury of Mohan which has to be contradicted by the prosecution in accordance with law. But that does not mean at any rate that the accused persons could be absolved from committing the criminal liability. The prosecuting party if appeared in the role of aggress with the object of dispossessing the accused from the property the question of private defence as to property and person is not wide open and the accused persons cannot inflict more harm than necessary. ( 19 ) IT is manifest from the evidence that the two parties at the material point of time were at logger heads with each other who were equally armed and the injury occurred to both the parties never attributed to the innocence of the prosecuting party. The situation as reflected by the materials on record is that Mohan went on the roof from where he darted the arrow. It evinces therefore, for the materials revealed that Mohan the accused was injured earlier to the injury suffered by husband. The evidence of PW -13 as regards the assault on Mohan gets ample support from the medical evidence which we have discussed thread bare. ( 20 ) IT is also established that the appellants suffered injuries in course of the incident which has been suppressed by all the eye witnesses save the medicolegal testimony. This does not militate against the case of the appellants. It is very difficult to a certain for the death of evidence as to who was the author of the assault on Mohan but the fact remains that the accused also suffered injury. The evidence of the doctor proves that Mohan had sustained two injuries one incised wound and tenderness plus swelling. ( 21 ) IN the state of record, it has been amply proved that the prosecuting party appeared in the role of aggressors in the face of prohibitory order passed by the court. That by itself does not generate any right to the accused to inflict more harm that necessary unless the circumstances, are so grave that the prosecuting party had a menacing attitude which could endanger the life of the accused persons. Now that it stands established that both the parties suffered injuries in consequence of which such and died on account of arrow assault. Now that it stands established that both the parties suffered injuries in consequence of which such and died on account of arrow assault. who went suddenly on the roof and accomplished the offence for which. Mohan was the another thereof. The action of Mohan for the arrow assault comes within the fold of Section 304 part, II. Undoubtedly, there was a free fight between the parties in consequence an arrow shot by the appellant hit the deceased on the chest, who fell down. There was number of eye witnesses to the occurrence who have attested the assault by Mohan on Suchand. ( 22 ) THE medical evidence, in the instant case, does not come to the rescue of the appellant as there is tangible evidence on record that Suchand died due to homicidal violence. So far as the part played by the appellant in the incident is concerned the evidence of the eye witnesses is consistent with the injury inflicted by him. As a matter of fact, the, arrow assault finds ample corroboration by the medical evidence. In FIR, in the instant case, exhibit-I does not render any contrary picture to the evidence of the eye-witnesses. We agree with the findings of the learned trial Judge save the quantum of sentence passed by the learned Trial Judge. There is no material on record that the accused intended to cause the death of Such and But the action of the present appellant could be attributed to his knowledge and thereby infliction of such injury, he was likely to cause death of Such and. In the view, we are taking in the matter than the offence committed by the appellant come squarely and fairly on Section 304 Part II of the IPC. We scorn the entire episode who had little respect for law. They did not suspend their action in the advent of prohibitory order passed by the court and stopped up with arms to kill their dear and near relation and nianner and conduct of the parties are ignoble. ( 23 ) NOW a sharp question that stares on our face is whether all the accused persons could be brought within the periphery of Sec. 149 of the IPC. A legitimate question eventually has arisen that all the appellants by the act of Mohan could have their entry, to Section 149 of the IPC. ( 23 ) NOW a sharp question that stares on our face is whether all the accused persons could be brought within the periphery of Sec. 149 of the IPC. A legitimate question eventually has arisen that all the appellants by the act of Mohan could have their entry, to Section 149 of the IPC. Though the defence has laboriously researched in their argument about the partisan character of the village witnesses in the evidence about the suppression of injury yet the evidence of the doctor let the cut out of the leg who found injury on the person of Mohan. Therefore, there was a clash between the two warring groups which found its way in the occurrence. ( 24 ) IT is notorious to find from their evidence, since we are tempted to analyse the individual action of Mohan and other accused for the impelling necessity to adjudge their capability in connection with the; offence complained out is manifest that Mohan suddenly, climbed the roof and darted the arrow which is unconnected with the role other accused. ( 25 ) THERE is no slender or microscopic material on record that the other accused persons had any talk with Mohan before his climbing the roof to accomplish the act nor anyone said Mohan to climb the roof. This sudden change of course of action during the occurrence without any object behind it cannot make the other accused persons liable for the offences complained of. If we pay highest premium, it is worthy to note that there might be formation of a common object, the prosecution of which was to defend the possession of the land in course of scuffling, assault and counter-assault but when Mohan went to the roof and darted the arrow that pierced the chest of Such and, cannot be shared by other accused persons. ( 26 ) THE above evidences, therefore, that the common object suffered a split and for the act of Mohan the other accused persons cannot be charged under Section 149 of the IPC. The action of Mohan is separate and distinct which took place during the occur tendency suddenly which cannot be combined with the action of the other accused persons. It cannot attribute to the element of common object to charge the accused persons with the crime. The action of Mohan is separate and distinct which took place during the occur tendency suddenly which cannot be combined with the action of the other accused persons. It cannot attribute to the element of common object to charge the accused persons with the crime. ( 27 ) IT has been settled by the legion of judicial precedents that before convicting the accused under Section 149, it is essential for the court to render a salutary finding about the nature and aim of the common object. The findings, if conspicuously absent, Which included, amongst others the overt act on the part of the accused persons, a mere assemblage of persons with arms would not be enough to bring the case within there is chief of common object. If we look to the anatomy of the evidence, we can easily make, as we are making, that there is complete division of their actions, in particular, when Mohan on his own went to the roof and perpetrated the act. ( 28 ) SECTION 149 creates a specific offence and deals with the punishment with that offence. There must be inspiration of the common object to cherish the act which in the instant case verges on futility. It will bean academic exercise to persue the matter further as the facts take their own account which upon arithmetical calculation cannot make other liable for the offence. Accordingly, they are entitled to a clean acquittal except Mohan of an offence under Section 304, Part II of the i PC. ( 29 ) IN the background, does the offence come within Sections 302 or 304 of the IPC? The accused has submitted that he was the target of assault and the attitude of the prosecuting party was not at all honest. He asserted to have acted only after himself being attacked and injured. The injury sustained by the accused suffered a suppression. Only the medical evidence revealed the truth. But, however, the prosecuting Tparty suffered a great loss which took away the life of Suchand by the arrow shot about which, the evidence is unimpeachable. In the circumstances the accused must be held to have inflicted injury on the deceased not with the intention to cause death but with the knowledge that the same may cause death. But, however, the prosecuting Tparty suffered a great loss which took away the life of Suchand by the arrow shot about which, the evidence is unimpeachable. In the circumstances the accused must be held to have inflicted injury on the deceased not with the intention to cause death but with the knowledge that the same may cause death. It is trite law that the death when caused with the aid of a single knife blow at a vital part, ordinarily accused would be convicted under Section 302 and not under Section 304. Part-li, unless it is shown that the blow was dealt in a sudden impulse without any preplan in the instant case, it has come to the surface that the death was the result of mutual fight and not out of premediated murderous assault, conviction under Section 302 is not proper. We may take the aid of (I) Ram Swamp v. State of Haryana. ( 30 ) EVEN though intention to cause death is absent if the act done with the knowledge that it is likely to cause death, offence falls under Section 304, Part II, (2) S. D. Soni v. State of Gujarat2. Thus, the offence committed by the accused verges on Section 304, Part-li of the IPC. ( 31 ) WE do not therefore, agree with the order of conviction, and sentence as we displace the order of conviction and sentence to Section 304 Part-li of the IPC in respect of Mohan and none others. ( 32 ) RETURNING to examine the quantum of sentence, the period of detention undergone by the appellant after conviction is adequate. Therefore, we, cut down the quantum of sentence one from life imprisonment to the period sentence already undergone by him. However, for the consequential loss of a member in the family of the deceased, we award a fine of Rs. 5,000. 00 to be paid to the wife of the deceased, if any, or their children if they are major in proportion and in absence of them such fine be paid to the father of the victim. In default of payment the appellant is to undergo further imprisonment for one year with hard labour. ( 33 ) IN the advent of penology, we do not pass any separate sentence under Section 148 and 323/149 of the IPC which are to run concurrently. In default of payment the appellant is to undergo further imprisonment for one year with hard labour. ( 33 ) IN the advent of penology, we do not pass any separate sentence under Section 148 and 323/149 of the IPC which are to run concurrently. The other appellants are acquitted of the charge under Section 302/149 of the IPC who are convicted under Section 148 and 323/149 of the IPC. Since they have already undergone detention after conviction no further sentence is to be awarded. The conviction for life under Section 302/149 is altered to 304. Part II of the IPC. Let a copy of this judgment go down to the concerned court which passed the order of conviction and sentence forthwith along with LCR. Appeal allowed partly.