Research › Search › Judgment

Patna High Court · body

2000 DIGILAW 333 (PAT)

Suresh Goswami v. State Of Bihar

2000-03-01

ASHOK KUMAR VERMA, NARBDESHWAR PANDEY

body2000
Judgment 1. This appeal has been preferred against the judgment dated 31.8.1989 in Sessions Trial No. 88/88/3/88 whereby and whereunder, appellant No. 8 Chamru Goswami (now dead) was convicted and sentenced to undergo rigorous imprisonment for life under Section 302 of the Indian Penal Code for having committed the murder of Bhola Goswami. Rest of the appellants including appellant No. 3 Sobhi Goswami. (now dead) were held guilty for the offences under Section 302 read with Section 149 of the Indian Penal Code and sentence to undergo rigorous imprisonment for life. Appellant Nos. 1, 3, 4 and 6 were convicted under Section 148 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for two years each. Appellants No 1 to 5 have further been convicted and sentenced to undergo rigorous imprisonment for three months each for the offence under Section 337 of the Indiar Penal Code. Appellants No. 3 and 5 were also convicted under Section 147 of the Indian Penal Code and sentenced to un dergo rigorous imprisonment for one year each. However, the sentences were ordered to run concurrently. 2. The case of the prosecution, a would appear from the fardbeyan (Ext. 3) in brief, is that on 2-5-1987 at about 8.0 p.m. the informant Khushal Goswami (P.W. 3) was present in his house alon with his son Laxmi Goswami (P.W. 1) The house of appellant Chamru Goswami was also located nearby the house of the informant. On hearing sound of bomb exploded by appellant Chamru Goswami, the informant and his so came out of their house and asked Chamru Goswami to explode bomb at a safe place so that one may not be injured whereupon Chamru started abusing the informant and also threatened to explode another bomb. The informant and his son raised alarm. In the meantime, the accused-persons arrived there. It is alleged, on the order of appellant No. 1 (Suresh Goswami) to kill the informant and his son, all the accused-persons pelted brick bats, causing injuries to Jagdish Goswami (P.W. 2), Bhukti Devi, (P.W. 4) and one Radha Devi. In the meantime, deceased Bhola Goswami, the full brother of the informant, who had gone for rickshaw pulling, returned there and arrived at the Darwaja of accused Chamru Goswami. In the meantime, Chamru Goswami hurled a bomb on account of which he sustained injuries. Thereafter, accused Suresh Goswami also inflicted Bhola injury. In the meantime, deceased Bhola Goswami, the full brother of the informant, who had gone for rickshaw pulling, returned there and arrived at the Darwaja of accused Chamru Goswami. In the meantime, Chamru Goswami hurled a bomb on account of which he sustained injuries. Thereafter, accused Suresh Goswami also inflicted Bhola injury. Bhola Goswami having received such injuries, died at the spot. On the basis of the aforementioned facts, the police registered the First Information Report and ultimately having found the case prima facie true, submitted the charge-sheet. Ultimately, the Chief Judicial Magistrate on due observance of all the necessary formalities, took cognizance of the offences and committed the case to the Court of Sessions. 3. The defence Of the accused-persons, as would appear from their statements under Section 313 of the Code of Criminal Procedure as well as the trend of cross-examination of the prosecution witnesses, is of total denial of the occurrence. That apart, a plea of alibi was also taken by accused Chamru and Suresh Goswami. 4. The prosecution, as would appear from the record of the case, examined altogether nine witnesses, out of them P.W. 1 (Laxmi Goswami), RW. 2 (Jagdish Goswami & Bhusu Goswami), P.W. 3 (Khushal Goswami) and P.W. 4 (Bhutki Devi) have come forward as ocular witnesses, P.W. 8 (Dr. H.I. Ansari) is the doctor, who had conducted the autopsy on the person of the deceased and P.W. 9 (Raja Ram Singh) is the Investigating Officer whereas P.W. 5 (Ganesh Mandal), P.W. 6 (Ram Bilas Singh) and P.W. 7 (Kamal Mandal) are the formal witnesses. The defence has also examined two witnesses, namely, D.W. 1 (Anjoy Kumar Srivastava, Assistant Engineer of the Electricity Department) and D.W. 2 (Rameshwar Goswami). 5. Learned counsel appearing for the appellants firstly contended that from a bare reference to the evidence of the witnesses, it would appear that entire occurrence took place at the Darwaja of appellant Chamru Goswami. The origin of the occurrence, as would appear from the case of the prosecution, disclosed in the First Information Report, is that accused Chamru Goswami was exploding bomb at his own Darwaja. The informant asked him to explode the same at some another place by way of precaution whereupon appellant Chamru abused him and on hearing India, accused-persons arrived there in order to assault the informant, who was present at that time. The informant asked him to explode the same at some another place by way of precaution whereupon appellant Chamru abused him and on hearing India, accused-persons arrived there in order to assault the informant, who was present at that time. Deceased Bhola Goswami, the rickshaw puller, arrived at the place of occurrence after the arrival of the accused-persons. At this stage, appellant Chamru Goswami took out a bomb and hurled at him, causing instantaneous death and a Bhola blow was also given by Suresh Goswami. The prosecution witnesses have also supported that part of the story of the informant. Therefore, keeping in mind such facts, it would not be proper to hold other appellants guilty for the offences under Sections 302/149 of the Indian Penal Code. Because neither there is any allegation nor evidence that all the accused-persons have formed an unlawful assembly with a common object to commit the murder of Bhola Goswami. At best, the allegation of murder of Bhola Goswami could be attributed to appellant Chamru Goswami, who hurled the bomb. That apart, no material has been brought on record on behalf of the prosecution to prove that actually what was the motive of the accused-persons to commit the murder of Bhola Goswami particularly in the background when the first altercation had taken place between appellant Chamru Goswami and the informant. 6. It was then contended that from a bare reference to the injuries noted by the doctor, namely, Dr. H.I. Ansari (P.W. 8) either in the post-mortem report or from his deposition in Court, it would appear that all the injuries were caused by bomb blast. No Bhola injury as alleged by the prosecution was found on the person of the deceased by the doctor and according to him, all the injuries were caused by bomb blast whereas P.W. 1 (Laxmi Goswami), 2 (Jagdish Goswami), 3 (Khushal Goswami) and (Bhutki Devi) have stated in their evidence that Bhola Goswami sustained injuries, caused by bomb blast and Bhola. Learned counsel, therefore, contended that even the individual role played by the accused-persons is taken into consideration, it is accused Chamru Goswami alone who could be held responsible or the murder of the deceased. But, the trial Court ignoring this aspect convicted all the accused-persons under Section 302 read with Section 149 of the Indian Penal Code. 7. Learned counsel, therefore, contended that even the individual role played by the accused-persons is taken into consideration, it is accused Chamru Goswami alone who could be held responsible or the murder of the deceased. But, the trial Court ignoring this aspect convicted all the accused-persons under Section 302 read with Section 149 of the Indian Penal Code. 7. Learned counsel further contended that even from the evidence of the eye-witnesses, it would appear that occurrence took place at the Darwaja of appellant Chamru Goswami. Therefore, it cannot be said that Chamru Goswami or other accused-persons had gone to the Darwaja of the informant or deceased Bhola Goswami to assault. Rather specific case of the prosecution was that Chamru Goswami was exploding bomb at his Darwaja and on hearing the sound of such explosion, he, the informant and his son arrived there. Thus, this part of the prosecution story and evidence of the witnesses are themselves enough to prove that there was no unlawful assembly of the accused-persons nor there had been any common object of the accused-persons to commit the murder of Bhola Goswami. Learned counsel lastly contended that the occurrence in this case had taken place in the year, 1987. Therefore, after lapse of about thirteen years, it would not be in the interest of justice to convict these appellants on the basis of much a shaky and unconvincing materials. 8. On the other hand, learned counsel for the State contended that in view of the well-settled law, to convict the accused-persons under Section 149 of the Indian Penal Code, it is not necessary for the prosecution to prove that all the accused-persons had assaulted the deceased. There were presence in the company of the main accused frothing an unlawful assembly in prosecution of the common object to commit the alleged offence would be enough to hold such persons guilty for the offence under Section 149 of the Indian Penal Code. Therefore, in this case from the evidence on the witnesses as well as the case of the prosecution it would appear that all the appellants being armed with respective weapons had arrived at the place of occurrence on hearing bulla raised by the informant with an intention to commit the offence. Therefore, even such persons had not taken part in actual assault on the deceased, they cannot escape the conviction under Section 149 of the Indian Penal Code. Therefore, even such persons had not taken part in actual assault on the deceased, they cannot escape the conviction under Section 149 of the Indian Penal Code. 9. He next contended that there is no substance in the submission of the learned counsel for the appellants that the deceased had sustained only bomb blast injuries and there was no injury caused by bhala. Because from a bare reference to the deposition of the doctor, it would appear that stab wound injury was also found on the abdomen. Therefore, even other accused-persons are not found guilty for the offence under Section 149 of the Indian Penal Code, appellant No. 1 Suresh Goswami can be safely held guilty on the basis of specific allegation of the prosecution that he had given a bhala blow on the deceased. 10. In the background of the submissions advanced on behalf of the learned Advocates appearing for the parties and other relevant materials, a question, thus arises whether the prosecution has been able to prove its case beyond the reasonable doubt and whether all the accused-persons can be held guilty for the offence under Section 302/149 of the Indian Penal Code or it was appellant No. 6 Chamru Goswami, who alone was responsible for the alleged murder. 11. From the case of the prosecution and evidence of P.W.s 1 to 4 and 6 as also the Investigating Officer (P.W. 9), there appears no manner of doubt that murder of Bhola Goswami took place in front of the house of accused Chamru Goswami on the alleged date of occurrence. According to the doctor (P.W. 8) as well as the post-mortem report, all the injuries found on the person of deceased Bhola Goswami were blast injuries. As per the opinion of the doctor, either recorded in the post-mortem report or expressed before the Court during his deposition, all such injuries were caused by explosive (bomb) and splinters. He has further opined that most of the blast splinters with sharp edge like stone, nails are also called sharp weapons. With respect to the injury on abdominal cavity deep, the margin of this wound was found burnt and yellow deposits of powders and splinters of explosives (bomb) were found in the wound. Therefore, he gave his definite opinion in the post-mortem report that this wound was caused by explosive blast. With respect to the injury on abdominal cavity deep, the margin of this wound was found burnt and yellow deposits of powders and splinters of explosives (bomb) were found in the wound. Therefore, he gave his definite opinion in the post-mortem report that this wound was caused by explosive blast. With respect to sharp-cut wound, according to the doctor, it was suggestive of having been caused by explosive (bomb) blast splinters. In the background of the facts, noticed above, therefore, there is no manner of doubt that Bhola Goswami died on account of having received the bomb blast given by appellant Chamru Goswami, because all the eye-witnesses have consistently supported the case of the prosecution that no sooner Bhola Goswami, the rickshaw puller, arrived at the place of occurrence, Chamru Goswami exploded bomb on account of which he sustained injuries and died at the spot. 12. The next question, thus, arise whether in the facts and circumstances of the case the trial Court was justified in holding all the accused-persons guilty for the offence under Section 302 read with Section 149 of the Indian Penal Code. There is no allegation against any of the appellants except appellant No. 1 Suresh Goswami, that they also took part in assault of the deceased. The allegation against Suresh Goswami of having given a bhala blow is being satisfied by the injuries noted by the doctor in the post mortem report and his evidence before the Court. But, as noticed above, in order to hold the accused-persons guilty for the offence under Section 149 of the Indian Penal Code, it is not necessary for a Court to find out whether all the accused-persons had actually taken part in the assault. If on the basis of the case of the prosecution and the evidence on record it is established that an offence has been committed by any member of an unlawful assembly in prosecution of the common object of that assembly, every persons who, at the time of the committing of that offence is a member of such assembly, shall be guilty of that offence. In this case, neither this is a case of the prose nor there is any evidence on record that all the accused had formed an unlawful assembly with a common object to commit the murder of Bhola Goswami. In this case, neither this is a case of the prose nor there is any evidence on record that all the accused had formed an unlawful assembly with a common object to commit the murder of Bhola Goswami. I have already noticed that the genesis of the occurrence initiated due to the bomb explosion by accused Chamru Goswami at his Darwaja. Because at that time the informant and his son came out of their house and made protest. When appellant Chamru threatened to explode similar bomb, on bearing hulla other accused-persons arrived and started throwing brickbats etc. Deceased Bhola Goswami was neither present at that time nor this is the case of the prosecution that accused-persons had arrived there with an intention to commit his murder. In fact, Chamru Goswami the rickshaw-puller, arrived there subsequently, upon which Chamru Goswami hurled a bomb as a result of which Bhola Goswami received injuries and died at the spot. Therefore, having regard to the facts, noticed above, in our consistent view, it would not be proper to hold other accused-persons guilty for the offence under Section 302 read with Section 149 of the Indian Penal Code. 13. Coming to the alleged offence under Section 337 of the Indian Penal Code, it would appear from the case of the prosecution and evidence of the eye witnesses, namely, P.Ws. 1 to 4 and the Investigating Officer (P.W. 9) that the accused-persons having arrived at the place of occurrence started throwing brickbats. The prosecution has also alleged that clue to the brickbats thrown by the accused persons, some of the family members also sustained injuries. The Investigating Officer (P.W. 9) had also found injuries on some of the members of the family and had sent requisition before the doctor /or a report. But, neither any injury report has been brought on record nor the doctor has come forward to support the case of the prosecution that other family members of the informant have also sustained injuries. Therefore, the trial Court has rightly not convicted the accused-persons for such offence. But, this part of the allegation against the accused-persons that they throw brickbats endangering personal safety of others in a rash and negligent manner, is enough to hold them guilty for the offence under Section 337 of the Indian Penal Code. Therefore, the trial Court has rightly not convicted the accused-persons for such offence. But, this part of the allegation against the accused-persons that they throw brickbats endangering personal safety of others in a rash and negligent manner, is enough to hold them guilty for the offence under Section 337 of the Indian Penal Code. From the evidence of the Investigating Officer, it would further appear that he had also found several brickbats at the place of occurrence and near the Darwaja of the informant. Therefore, conviction against those persons as recorded by the trial Court under Section 337 of the Indian Penal Code is confirmed. 14. Then, the last question that arises for consideration is whether the conviction of these appellants under Section 148 of the Indian Penal Code as recorded by the trial Court is justified. From the case of the prosecution as well as consistent evidence of P.Ws. 1 to 3 and 4, it would appear that these appellants were seen at the place of occurrence with their respective weapons. True it is, as held above, the prosecution had failed to prove that these accused-persons had arrived at the place of occurrence with a common object to commit murder of Bhola Goswami. Therefore, they cannot be held responsible for such murder. But, this cannot be denied that the alleged conduct of these appellants to arrive at the place of occurrence being armed with deadly weapons can certainly held them guilty for the offence under Section 147 and 148 of the Indian Penal Code. In order to hold guilty to an accused for such an offence, it is not necessary for the prosecution to prove that he had used his weapon. We, therefore, taking into consideration the facts, stated above, also affirm the conviction and sentence of these appellants under Sections 147 and 148 of the Indian Penal Code. 15. In the result, therefore, conviction and sentence against appellants No. 1 (Suresh Goswami), 2 (Nath Goswami), 4 (Tulsi Goswami) and 5 (Indrajit Goswami) under Sections 302/149 of the Indian Penal Code is set aside. But the conviction under Sections 147, 148 and 337 stands confirmed. However, the sentences awarded by the trial Court against them is reduced to the period already undergone. Since these appellants are already on bail, they are discharged form the liabilities of bail-bonds. But the conviction under Sections 147, 148 and 337 stands confirmed. However, the sentences awarded by the trial Court against them is reduced to the period already undergone. Since these appellants are already on bail, they are discharged form the liabilities of bail-bonds. As stated above, appellants No. 3 (Sobhi Goswami) and 6 (Chamru Goswami) are now dead. Therefore, their appeal stands abated. With the above modification in the conviction and sentence, the appeal is hereby dismissed. Appeal dismissed after modifications.