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2002 DIGILAW 169 (GAU)

Arun Turi and Ors. v. State of Assam

2002-04-23

AFTAB H.SAIKIA, R.S.MONGIA

body2002
A.H. SAIKIA. J, We allowed this Criminal appeal on 23.4.02, for the reasons to be recorded later on, after hearing Mr. A Thakur, learned council for the appellants as well as Mr. G. Choudhury, learned Public Prosecutor, Assam to the extent that the conviction of the accused appellants under Section 320, IPC was converted to conviction under Section 326 read with Section 34 IPC and sentenced them accordingly to imprisonment already undergone by them and the reasons for allowing the appeal above noted are now stated as follows: 2. The impugned Judgement and order dated 26.3.1999 passed by the learned Sessions Judge, Golaghat in Sessions Case No. 107/95 convicting the appellants under Section 302 IPC is the subject matter of challenge in this Criminal Appeal before us. 3. The prosecution case in brief is that on 19.6.1993 there was an incident of mar-pit between the sons of Lokheswari Turi (P.W-2) and Arun Turi (Appellant No.l) and as a sequel of the said incident the wife of appellant No.l and appellant No.3 abused and assaulted Lakheswari Turi the wife of the victim late Tileswar Turi. On being assaulted the PW-2'went to Dergaon Police Station to lodge an FIR but she was advised by the Police to come in the next morning. Thereafter in the morning of 20.6.1993 the P.W-2, Lokheswari Turi while proceeding to Dergaon Police Station accompanied by her minor son Jadav and her deceased husband, Tileswar Turi at about 6 A.M. in front of the house of one Kamal Turi (P.W.-3) the appellants intercepted them and tried to attack them. Out of fear they entered into the Court yard of Kamal Turi. Then Basudev Turi gave a lathi blow to the deceased and felled him down on the ground. Later on deceased, Tileswar Turi was assaulted and he was tied up with a rope and dragged him to the house of appellant No. 3 (Basudev Turi). Due to the assault at the house of appellant No. 3, the deceased Tileswar Turi suffered serious injuries for which he had to shift to Golaghat Civil Hospital for treatment wherein he succumbed to his injuries after three days. 4. An FIR (Ext. 3) was lodged by P.W.2, Lakheswari Turi on 20.6.93 with the Dergaon Police Station and pursuant to the said FIR investigation ensued. 5. Autopsy on the dead body of Late Tileswar Turi was conducted by P. W.5 Dr. 4. An FIR (Ext. 3) was lodged by P.W.2, Lakheswari Turi on 20.6.93 with the Dergaon Police Station and pursuant to the said FIR investigation ensued. 5. Autopsy on the dead body of Late Tileswar Turi was conducted by P. W.5 Dr. F. Hoque at the Golaghat Civil Hospital. Holding Post mortem examination over the dead body, the doctor as per his deposition, found the following injuries : "Rigormortis present. INJURIES : Blood stained fluid coming out from the mouth and no other external injury detected. On examination of the abdomen-peritoneum contained blood. Spleen-Ruptured. Other organs found healthy." In his deposition the doctor (P.W.5) opined that cause of death was due to hemorrhage and shock as a result of rupture of spleen and such injury causing rupture of the spleen may be caused by use of severe force by blunt weapon on spleen. In his cross he deposed that in parasitic infection the spleen may be enlarged, but it is not ruptured. Except external force, the spleen is not ruptured. It may be noted herein that as per post mortem, no external injury was detected on the body of the deceased. 6. Initially a case was registered under Section 147/325 IPC but after investigation, the Police submitted charge-sheet against all the accused persons under Section 147/ 148/149/304/323/302 IPC as late Tileswar Turi died in the Hospital as a result of being assaulted by the appellants. 7. The prosecution examined as many as six witnesses including the PW.2 Smti. Lokheswari Turi, wife of Tileswar Turi, the informant and P.W. 5 the doctor who conducted the post mortem. Admittedly there was no eye witnesses to the incident of assault to the deceased causing death. 8. The learned Sessions Judge after discussing the evidences accepted the prosecution case and by his impugned Judgment and order convicted all the accused appellants under Section 302, IPC for causing death to the deceased Tileswar Turi by assaulting him. 9. We have carefully gone through the evidence of all the witnesses i.e. P.Ws. 1 to 6. P.W. 1 is a doctor who examined the P.W. 2, the Lokheswari Turi for her injury, P.W. 5 the doctor who conducted the post mortem over the dead body of Tileswar Turi. 9. We have carefully gone through the evidence of all the witnesses i.e. P.Ws. 1 to 6. P.W. 1 is a doctor who examined the P.W. 2, the Lokheswari Turi for her injury, P.W. 5 the doctor who conducted the post mortem over the dead body of Tileswar Turi. P.W. 6 is an investigating officer who conducted the investigation and in his deposition he categorically stated that inquest report of the deceased was prepared by Golaghat thana not by him and he could not collect the report. He only came to know from the relatives of the deceased that he died on 20.6.93. 10. A careful scrutiny of the evidence of P.W.2, the Lokheswari Turi, P.W. 3 Kamal Turi from whose court-yard the appellant allegedly took away the deceased on his asking and the P.W. 4 Titap Gogoi a neighbour of P.W. 3 goes to show that there is absolutely no evidence to prove the prosecution case that the deceased died due to the assault of the appellants. All these three witnesses corroborated in deposing that the deceased Tileswar was assaulted in the court-yard of Kamal Turi, P.W.3. P.W. 2 said in her evidences deposed that it was Basudev the appellant No. 3 who felled her husband in Kamal Turi's court yard by hitting with a lathi without mentioning on which part of the body of the deceased Basudev hit. P.W. 3, Kamal Turi stated that when the deceased Tileswar entered into his court yard, Arun Turi (appellant No.l ) Sunaram Turi (appellant No. 5)\, Sibna Turi (appellant No.2) along with 3/4 other persons tried to assault late Tileswar and it was Arun, appellant No. 1, who hit Tileswar only once with a lathi but when he wanted to assault once again, this witness offered resistance and asked them to take him out from his house. Similarly P.W. 4 Titap Gogoi did not name any appellants hitting the deceased. This witness has only said that the deceased told that the appellant No. 1, Arun Turi hit him on his leg with a lathi. From those deposition it is patently clear that the prosecution failed to prove their case beyond reasonable doubt as regards the individual participation of the appellants in the assault and causing death to the deceased. This witness has only said that the deceased told that the appellant No. 1, Arun Turi hit him on his leg with a lathi. From those deposition it is patently clear that the prosecution failed to prove their case beyond reasonable doubt as regards the individual participation of the appellants in the assault and causing death to the deceased. It also did not come in the evidence of the respective witnesses about the definite role played by the appellants to make them liable for conviction under Section 302 IPC. 11. It is also interesting to find that there is no evidence to show that from the date of assault i.e. 20.6.93 to his death i.e. 23.6.93 where the deceased was kept. There is absolutely no evidence that during this period the deceased was at Golaghat Civil Hospital under treatment. 12. Another important aspect we have noticed in this case is the glaring contradiction in the testimony of the three witnesses, i.e. P.W.2, P.W.3 and P.W.4 against the medical evidence. Entire evidences of the witnesses are admittedly contrary to post mortem report and the deposition of the Doctor, P.W.5. Medical evidence clearly indicated that there was no external injury detected on the body of the deceased and death was due to hemorrhage and shock as a result of rupture of spleen which can only be caused by external force as opined by P.W. 5. Maintaining complete silence in this regard, the material witnesses only deposed by their contradictory statements, that the deceased was hit by lathi, that too, without clearly specifying the part where he was hit. Not a single witness ever stated that the deceased was assaulted by any of the appellants in the area of spleen which was found to be ruptured by P.W.5, the doctor. 13. Mr. Thakur, learned counsel for the appellants pleaded that if the medical evidence is properly appreciated the testimony of P.W.2, P.W. 3 and P.W.5 cannot stand and as such present conviction of the appellants cannot be sustained on the basis of the evidence of these witnesses. 13. Mr. Thakur, learned counsel for the appellants pleaded that if the medical evidence is properly appreciated the testimony of P.W.2, P.W. 3 and P.W.5 cannot stand and as such present conviction of the appellants cannot be sustained on the basis of the evidence of these witnesses. He also contended that, prosecution totally failed to come up with an acceptable explanation as regards the whereabout of the deceased for the period from 20.6.93 to 23.6.93 especially when the deceased suffered injury on 20.6.93 under Dergaon Police Station and post mortem of his body was conducted on 23.6.93 at Golaghat Civil Hospital under Golaghat Police Station. No reliable evidence was adduced to prove how and when the deceased in his injured condition was brought to Golaghat Civil Hospital for his treatment and subsequent post mortem over his dead body. It was contended that even no medical report was called for by the prosecution to verify the factum of treatment of the deceased at Golaghat Civil Hospital and as such there is an absolute failure on the part of the prosecution to remove the doubt as regards the involvement of appellants causing death to the deceased and resultantly to prove the case against the appellants beyond reasonable doubt. 14. We fully agree with the submissions advanced by Mr. Thakur and an in-depth scanning of the testimony of the witnesses we unhesitatingly hold that the prosecution failed to prove the offence of murder against the appellants beyond reasonable doubt and the appellants are entitled to get benefit of doubt in so far as their conviction under Section 302 IPC is concerned. 15. But at the same time we are also satisfied that there are complete corroborations in the depositions of the P.W.2, P.W.3 and P.W.4 to rope the appellants for assault causing grievous hurt to the deceased. All those three witnesses categorically deposed that appellants particularly appellants Nos. 1 and 3 assaulted late Tileswar Turi by lathi and the appellants took away the deceased on being tied up from the house of P.W.3. 16. Upon proper appreciation of the evidences as indicated above and after hearing the learned counsel for the parties, we are of the view that the appellants cannot be convicted under Section 302IPC on the basis of the present set of evidences. 16. Upon proper appreciation of the evidences as indicated above and after hearing the learned counsel for the parties, we are of the view that the appellants cannot be convicted under Section 302IPC on the basis of the present set of evidences. At the best, it is a case of grievous hurt and the appellants can be convicted under Section 326 read with Section 34, IPC instead of Section 302 IPC. 17. Consequently, the conviction of the appellants from under Section 302 IPC and subsequent sentence of life imprisonment is altered to conviction under Section 326 read with Section 34 IPC. 18. In view of the said conviction under Section 326/34 the appellants are sentenced to imprisonment already undergone. It is stated at the bar that the appellants are in Jail since their conviction recorded by Sessions Judge on 26.3.99. Appellants be set at liberty forthwith unless required in any other case. 19. Fort eh forgoing reasons, appeal is allowed.