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2002 DIGILAW 146 (ORI)

BUDHA SINS KUMAR BOSE v. STATE OF ORISSA

2002-03-08

A.S.NAIDU, PRADIPTA RAY

body2002
A. S. NAIDU, J. ( 1 ) THE six appellants have filed this, appeal, inter alia challenging the judgment and order of conviction passed by the learned Additional Sessions Judge, Kendrapara, convicting them under Sections 302 read with Section 149 of the Indian Penal Code (for short. the 'i. P. C.) and sentencing appellants Budha alias Sins Kumar Bose, Niru alias Niru Kumar Bose, Babua alias Sudhir Kumar Bose and Nandua alias Sunil Kumar Bose to undergo rigorous imprisonment for life. The other appellants being ladies, were sentenced to undergo rigorous imprisonment for ten years each. All the appellants are also sentenced to pay a fine of five thousand rupees, in default, to undergo rigorous imprisonment for two years. ( 2 ) SHORN of unnecessary details, the short facts stated in the first information report lodged by Chandi Prasad Bose (P. W. 2) on August 6/1992 at 2. 00 p. m. at the Kendrapara Police Station is as follows: on August 6/1992 when informant was discharging his duties at his office he received information from one Sridhar Das that the sons of Late Atala Behari Bose have trespassed into their house and creating trouble. The informant immediately rushed to his house and came to know from his wife, daughter and other family members that at about 10. 00 A. M. while his two sons i. e. Sudhendu Kumar Bose alias Muna and Pratap Kumar Bose alias Balu were busy in thatching their cowshed by engaging two. Labourers, all the sons of Atala Behari Bose, being Sins Kumar Bose, Niren Kumar Bose, Sudhir Kumar Bose along with their mother Swarnamayee and sister-in-law Puspalata forcibly restrained his sons from thatching the cow-shed. They also abused his wife daughter and daughter-in-law in obscene languge and assaulted them when his sons protested appellants Sins Kumar Bose, Niren Kumar Bose, Sudhir Kumar Bose and Sunil Kumar Bose caught hold of both his sons and appellant Biren Kumar Bose dealt a 'tenta blow on the neck of his son Balu alias Pratap (hereinafter referred to as the deceased) causing severe bleeding injury. The injured was shifted to the Kendrapara Hospital by his sons and daughter with the help of one Naik Babu for treatment. The informant went to the hospital and learnt that as the condition of his son was alarming he was shifted to the S. C. B. Medical Collage Cuttack in ambulance. The injured was shifted to the Kendrapara Hospital by his sons and daughter with the help of one Naik Babu for treatment. The informant went to the hospital and learnt that as the condition of his son was alarming he was shifted to the S. C. B. Medical Collage Cuttack in ambulance. It is stated that the incident was witnessed by Smt. Shantilata Bose, Smt. Anjalibala Bose, Nanimohan Bose and others being Naik Babu, Chema Rout and the labourers. ( 3 ) ON receiving the report. a police case under Section 307/34. I. P. C. was registered and the investigation commenced. While the matter stood thus the investigating officer received information from the Mangalabag Police Station that injured Balu alias Pratap had succumbed to the injuriesat 1. 45 p. m. After completion of the investigation the 1. 0. submitted charge-sheet against all the aforesaid appellants under Section 302 read with Sections 148 and 149, I. P. C. ( 4 ) TO substantiate their case prosecution examined as many as sixteen witnesses P. Ws. 1,2,3,4 and 7 are respectively the mother, father sister-in-law, sister and the elder brother of the deceased. P. W. 9 is a co-villager and P. W. 12 is a labourer who was present at the spot and are also eye-witnesses to the occurrence. P. Ws. 5, 6 and 11 are the post occurrence witnesses who had seen the appellants running away from the spot armed with deadly weapons, P. W. 8 is the seizure witness in whose presence the partition deed (Ext. 3) was seized. P. W. 10 is the Doctor who initially examined the deceased and referred him to the S. C. B. Medical College, Cuttack for treatment. P. W. 13 is the A. S. I. of Mangalabag Police Station who registered U. D. case No. 488 of 1992, held inquest over the dead body and prepared report (Ext. 2 ). P. W. 14 is the Doctor who examined P. W. 7 said to have received injuries in course of occurrence. P. W. 15 is the Doctor who conducted the post mortem examination over the dead body and P. W. 16 is the investigating officer. The prosecution also exhibited as many as ten documents. ( 5 ) THE defence case is one of denial. P. W. 15 is the Doctor who conducted the post mortem examination over the dead body and P. W. 16 is the investigating officer. The prosecution also exhibited as many as ten documents. ( 5 ) THE defence case is one of denial. A plea was taken to the effect that they are the owners of the house in question which is used as farm house. The deceased also with his labourers was removing the thatch of the said house. When appellants protested they were assaulted by P. W. 7 by means of a split bamboo. Deceased Pratap also assaulted them by means of sword. While trying to protect themselves, appellant No. 1 sustained injuries on his fingers. At that very moment his younger brother Nandua alias Sunil (appellant No. 4) reached there and protested. He was also assaulted by deceased Pratap by means of a sword. The deceased caught hold of appellant Sunil and while the latter tried to free himself one of the servants who was on the roof of the house, aimed a blow at him with the sword. At that particular moment the deceased moved, moved to the right side and the sword blow hit his neck since the servant was at a higher level. The said servant after pulling the weapon out went away. ( 6 ) THE defence examined two witnesses in support of their case and exhibited two documents being the out Door patients Register of Indupur Public Health Center (Ext. A) and the injury requisition of D. W. 2 (Ext. B ). ( 7 ) THE trial Court after a threadbare discussion of the evidence, both oral and documentary, came to the conclusion that the cow-shed which was the centre of the dispute, belongs to the informant and that the deceased with his labourers was preparing to thatch the same. The trial Court disbelieved the defence plea that they went to protest the action of deceased Pratap and P. W. 7. The trial Court disbelieved the defence plea that they went to protest the action of deceased Pratap and P. W. 7. ( 8 ) THE trial Court held that all the accused appellants were the members of unlawful assembly and that the common object of the unlawful assembly was to do away with the life of the deceased and they were all guilty under Section 148 read with Sections 302/149 I. P. C. On the basis of the aforesaid finding the trial Court convicted all the accused appellants under Section 148 I. P. C. and sentenced them to undergo rigorous imprisonment for one year. Further, all the appellants were held guilty under Sections 302/ 149 I. P. C. and appellants Sins Kumar Bose, Niren Bose, Sudhir Bose and Sunil Bose were sentenced to undergo imprisonment for life. The lady accused-appellants namely, Puspalata Bose and Swarnamayee Bose aged about 65 years then were sentenced to undergo rigorous imprisonment for ten years each. All the accused appellants were also sentenced to pay a fine of Rs. 5,000/- each, in default to undergo rigorous imprisonment for two years each. The sentences were directed to run concurrently. Out of the fine amounts Rs. 5,000/- was directed to be paid to the father of the deceased. ( 9 ) LEARNED counsel for the appellants strenuously led us through the evidence of all the witnesses and submitted that the tussle arose out of a civil dispute and that, there was no common object to commit any murder. All the accused-appellants though alleged to have possessed weapons, none of them have used the same. Neither there was any common intention to kill nor to cause grievous injury. It is submitted that Biren who dealt the fatal blow, did not accompany them. He rushed to the spot all of a sudden, caused the fatal injury and fled away. The accused-appellants had no knowledge about the overt act committed by Biren and as Biren did not accompany them, none of the appellants are liable for the action committed by him. It is further forcefully submitted that the ladies though present at the spot, had neither taken part in the tussle nor assaulted anybody. The accused-appellants had no knowledge about the overt act committed by Biren and as Biren did not accompany them, none of the appellants are liable for the action committed by him. It is further forcefully submitted that the ladies though present at the spot, had neither taken part in the tussle nor assaulted anybody. The disputed plot is a part of their residential house and it is natural for all the family members including the ladies to be present there when P. W. 7, the deceased and his labourers forcibly tried to remove the thatch. Such action definitely disturbed the peace and tranquility and the appellants were constrained to oppose and prevent P. W. 7 and others from removing the thatch. The action, thus, cannot be nomenclatured as Tunlawful assembly. ( 10 ) AT the other hand, learned counsel for the State, while supporting the reasonings and the order of conviction and sentence passed by the learned Additional Session Judge, submitted that all the accused-appellants were prepared to assault the deceased and his brothers and that Biren was no other person than one of the family members of the accused appellants party and, therefore, all the appellants are responsible and liable for the overt act committed by Biren. It is submitted that it is a fit case where the appeal should be dismissed in limine and the order of conviction and sentence passed by the trial Court should be upheld. ( 11 ) ADMITTEDLY, P. Ws. 1,3,4 and 7 are the eye-witnesses to the occurrence. The statements of the aforesaid witnesses clearly reveal that accused Biru alias Biren who had given the fatal blow with the Tentat, was not a member of the unlawful assembly. It is stated that while the tussle between P. W. 7 deceased and his family members vis-a-vis the accused-appellants is was in progress, all of a sudden Biru alias Biren came from the side of the house of Kasinath with a Tentat and pierced the same into and neck of the deceased. Admittedly Biren was not arrested, and the case against him has been split up. The trial Court has reached a conclusion that as Biren was one of the members of the unlawful assembly any overt act committed by him, shall also be attributed to the other members of the unlawful assembly. Admittedly Biren was not arrested, and the case against him has been split up. The trial Court has reached a conclusion that as Biren was one of the members of the unlawful assembly any overt act committed by him, shall also be attributed to the other members of the unlawful assembly. ( 12 ) THE evidence adduced in the case clearly reveals that the deceased with two labourers climbed up the roof of the cowshed to remove/repair the thatch and P. Ws. 4 and 7 were helping him. At that relevant time, the appellants came to the spot and shouted at the deceased and the labourers and directed them to get down from the roof. Suddenly, appellant No. 1. Sirish dealt a lathi blow on the head of P. W. 7 which, in fact, hit his shoulder. As a result of the blow, P. W. 7 sat down. Appellant No. 2 Niren dealt a blow with the sword which hit the back of P. W. 7 causing slight injury as the blow slipped. Deceased Pratap who was on the roof seeing the assault on his brother got down from the roof and the appellants namely, Sirish, Niren Sudhira and Sunil rushed at the deceased and pressed him down. All of a sudden accused Biren who was not initially present, rushed from the side of the house of Kasinath with spear and pierced it to the left side neck of Pratap and pulled it out as a result of which there was profuse bleeding Pratap escaped from the clutches of accused Biren and tried to run away, but fell down near the house of Kasinath. He was shifted to Kendrapara hospital where P. W. 10 gave him first aid and referred the case to the S. C. B. Medical College Hospital for treatment where the succumbed to the injuries. The evidence regarding the assault on the deceased is consistent so far as almost all the eye-witnesses are concerned. ( 13 ) SCRUTINY of the evidence, further reveals that there was dispute regarding the ownership of the thatched house. The spot map (Ext. 7) reveals that the cow-shed is a part of the house of the appellants. Admittedly, every person has a right to protect his property. In the present case, there was mutual fight due to thatching of the cow-shed. The spot map (Ext. 7) reveals that the cow-shed is a part of the house of the appellants. Admittedly, every person has a right to protect his property. In the present case, there was mutual fight due to thatching of the cow-shed. The appellants were claiming title over the cow-shed and so also the family of the informant. A civil dispute was also pending. Though the ladies were present, there is no allegation that any of them had taken part in the assault. In the tussle both the sides have sustained injuries as would be evident from the doctorts report. The oral evidence also reveals that all the appellants were carrying deadly weapons, but none of the appellants has caused any injury much less the fatal injury on the deceased or any other person with the weapons. Thus, the common intention to murder is lacking. The consistent evidence is, accused Biren who was initially not present, nor accompanied any of the appellants, all of a sudden appeared at the spot with a 'tenta and pierced the same on the neck of the deceased and thereafter left the place. The prosecution has totally failed to adduce any evidence to prove that any of the appellants had common intention to cause death of the deceased. There is also no evidence to indicate that any of the appellants had prior knowledge that accused Biren would all of a sudden rush to the spot and inflict the injury. They tried to pin down deceased when he got down from the roof and approached the appellants who were trying to hold P. W. 7. Surprisingly no charge has been framed regarding the assault said to have been inflicted on P. W. 7. In the absence of any charge to that effect the appellants cannot be found guilty. ( 14 ) A cumulative assessment of the entire evidence, both oral and documentary, clearly reveals that the death was the outcome of the blow given by accused Biren by a Tenta. Biren is not an appellant before us and that the appellants had no intention to murder the deceased. ( 15 ) THE evidence further reveals that the disputed cowshed is in the possession of the accusedappellants and is attached to their residential house. The spot map (Ext. Biren is not an appellant before us and that the appellants had no intention to murder the deceased. ( 15 ) THE evidence further reveals that the disputed cowshed is in the possession of the accusedappellants and is attached to their residential house. The spot map (Ext. 7) clearly fortifies the submission made on behalf of the appellants that the house of the informant is a little distance away from the disputed cowshed. During the lis pendens, the informant's sons, P. W. 7 and others tried to remove the thatch from the cow-shed. Such action raised tension between the parties and the accused-appellants, who claim to the owners of the cow-shed rushed to the spot resulting in a free-fight. The evidence also reveals that none of the women accused-appellants assaulted the deceased or any person. Scrutiny of the oral evidence, as well as the injuries sustained by some of the accused appellants leads to an irresistible conclusion that there was a free fight between the two sides. In the aforesaid circumstances, no definite conclusion can be arrived at that the appellants had any knowledge with regard to the action of Biren who all of a sudden rushed to the spot and caused the fatal injury. ( 16 ) UNDER Section 149 of the Indian Penal Code, liability of other members for the offence committed in course of occurrence rests upon the fact whether the other members knew beforehand that the offence actually committed was likely to be committed in prosecution of the common object. Such Knowledge as has been observed by the Honble Supreme Court in the case of Gajananda and others v. State of U. P. , may reasonably be collected from the nature of the assembly, arms or behaviour at or before the scene of action. If such knowledge may not reasonably be attributed to other members of the assembly, then their liability for the offence committed during the occurrence by a person who was not initially a member does not arise. In the present case as the evidence unambiguously reveals. Biren, the accused who caused injury, was not initially a member of the party of the accused-appellants. He rushed to the spot all of a sudden and caused the fatal injury. The prosecution has totally failed to adduce sufficient evidence to establish that the accused-appellants had any prior knowledge about the offence committed by Biren. Biren, the accused who caused injury, was not initially a member of the party of the accused-appellants. He rushed to the spot all of a sudden and caused the fatal injury. The prosecution has totally failed to adduce sufficient evidence to establish that the accused-appellants had any prior knowledge about the offence committed by Biren. Therefore, we have absolutely no hesitation to hold that the prosecution evidence is not sufficient to establish beyond reasonable doubt that the accused-appellants were responsible for causing death of the deceased by a 'tenta blow inflicted by Biren. ( 17 ) LAW is also well-settled, as has been held in the case of Puran v. State of Rajasthan, that in case of a sudden mutual fight between the two parties there can be no question of invoking the aid of Section 149 for the purpose of imposing constructive criminal liability on an accused. The accused in such a case can be convicted only for the injuries caused by him by his individual acts. ( 18 ) THE most important circumstance which clearly emerges from the evidence in that, there was a sudden mutual fight between the parties and thus, there could, therefore, be no question of invoking the aid of section 149. I. P. C. In the case of Umesh Singh and another v. State of Bihar it has been reiterated by the Honble Supreme Court that vicarious liability extends to members of the unlawful assembly only in respect to the common object of an unlawful assembly are likely to commit in the execution of that common object. The basic ingredient which is necessary to attract the provisions of section 149 is the prior knowledge of the offence to be committed which was actually committed by common object. Such basic ingredient, to attract the provision of Section 149, I. P. C. is lacking and we have no hesitation to set aside the finding of the trial Court to the effect that the appellants were responsible for the act committed by Biren, though he had not accompanied them. ( 19 ) SO far as the appellants 5 and 6 namely, Puspalata Bose and Swarnamayee are concerned, they are old ladies and are at the fag end of their lives. Though they were present along with other family members no overt act is alleged to have been committed by them by any of the witnesses. ( 19 ) SO far as the appellants 5 and 6 namely, Puspalata Bose and Swarnamayee are concerned, they are old ladies and are at the fag end of their lives. Though they were present along with other family members no overt act is alleged to have been committed by them by any of the witnesses. We, therefore, have no hesitation to set aside the conviction passed under Sections 302/149. I. P. C. ( 20 ) BUT then definitely all the accused persons are members of the unlawful assembly and the trial Court rightly found them guilty under Section 148, I. P. C. and sentenced them to undergo rigorous imprisonment for one year. We do not find any reason to interfere with the said finding and hold all the appellants guilty under Section 148. I. P. C. ( 21 ) IN view of our conclusion that the appellants 1 to 4 had neither any mens rea nor any intention to cause death of Pratap and specially in view of the fact that no charge has been framed against them for assaulting any other member of the prosecution party and. in view of the fact that Biren, who caused the fatal injury is not an appellant we feel, in the light of the ratio of the decisions of the Honble Supreme Court (supra) this is a fit case where the appellants who are in custody since 1992 should be acquitted. The order of conviction and sentence passed against them by the learned Additional Sessions Judge under Sections 302/149. I. P. C. is, therefore, set aside and it is directed that the appellants 1 to 4 be released forthwith if their detention is not required in any other case. ( 22 ) SO far as appellants 5 and 6 are concerned it appears that they have already remained behind the bars for more than one year. Thus, they have already served the sentence imposed under Section 148. I. P. C. ( 23 ) VIEW of the peculiar facts and circumstances of the case we confirm the sentence with regard to fine and direct that each of the appellants shall pay a fine of Rs. 5,000/- (five thousand rupees) failing which they shall undergo rigorous imprisonment for one year each. If the fine is collected a sum of Rs. 5,000/- (five thousand rupees) failing which they shall undergo rigorous imprisonment for one year each. If the fine is collected a sum of Rs. 20,000/- (Twenty thousand) out of the same should be paid to the informant (P. W. 2 ). ( 24 ) BEFORE parting we make it clear that the discussions made in the preceding paragraphs and the observations made by us with regard to the evidence is confined only with regard to the appellants, who are before us and any observation made shall not be utilised in the case of Biren. The case against Biren shall be tried on its own merit in the light of the evidence to be adduced in the said case. The Criminal Appeal is allowed in part. Appeal allowed partly.