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2002 DIGILAW 60 (GAU)

Toseswar Chutia v. State of Assam

2002-02-01

A.K.PATNAIK, R.S.MONGIA

body2002
A.K. PATNAIK, J. — This is an appeal against the judgment dated 20.8.1996 of learned Sessions Judge, Dhemaji, in sessions Case No. 103(DH)/1992. By the said judgment, the learned Sessions Judge has convicted the appellants under Section 147IPC, and also under Section 302 IPC. For the offence under Section 147 IPC, the learned Sessions Judge has imposed a sentence of rigorous imprisonment for two years on all five appellants, and for the offence under Section 302 IPC, he has imposed a sentence of rigorous imprisonment for life and a fine of Rs. 1000/- each and in default, further rigorous imprisonment for one year, sentences are to run concurrently. All the five persons who have been convicted and sentenced have filed this appeal. 2. The case started with an FIR lodged by Smt. Mukheswari Chutia on 10 1.1988 with the Officer-in-Charge, Dhemaji Sadar Police Station alleging that in the evening of 9.1.1988, five appellants surrounded her husband Narayan in front of the gateway of the house and assaulted him and badly injured his eyes, mouth an waist. Narayan was thereafter sent by the police to hospital for treatment where he succumbed to his injuries on 14.1.1988. Investigation was carried out and a charge-sheet was filed. On 2.1.1992, the learned Judicial Magistrate, 1st Class, passed orders in GR Case No. 30/1988 committing the case to the court of learned Sessions Judge for trial. On 5.7.1993, the learned Sessions Judge framed charges against the appellants under Sections 147/302 IPC. Appellants pleaded not guilty and the case proceeded for trial. 3. At the trial, Smti. Mukheswari Chutia, who lodged the FIR, was examined as PW1. She stated that there was a dispute relating to purchase of a plot of land from the appellant, Tarun Chutia, and in the evening of the date of occurrence, appellants Toseswar A1, Sarbeswar A4, Tarun A2, Loheswar A3 and Phuleswar A5 being armed with lathis, iron rod, etc. came to her house, and when they beat the fence her husband Narayan came out to courtyard enquiring as to who was beating the fence, and Toseswar A1 dealt a blow on the head of her husband. Immediately her husband fell down on the ground and a son as he fell down, other accused person also beat her husband. She came out of the house shouting as to why he was screaming and he said that Toseswar hit him. Immediately her husband fell down on the ground and a son as he fell down, other accused person also beat her husband. She came out of the house shouting as to why he was screaming and he said that Toseswar hit him. She has further stated that he (Toseswar A1) also beat her son Sunil Chutia, and after beating them the appellants fled away. PW 1 has further stated that she and her son lost their sense and regained their sense only in the next morning and found Narayan lying with injuries on his head, eyes, chest, and legs/She went to police station and got an ejahar written. Police took them including Narayan to the hospital in a police vehicle and after six days her husband Narayan died in the hospital. PW 2, the son of Narayan and PW 1, was also examined who has generally corroborated the aforesaid story given out by PW 1, but has stated that he could not recognise the persons who assaulted in the dark. PW 3 is a local resident who has stated that he came to know from the public that Narayan had died following a fight, but he did not know who assaulted whom in the fight. PW 4 is another local resident who has stated that she does not know how Narayan died. PW 5 is the daughter of Narayan and she has stated that she does not know how he died. The doctor who carried on post-mortem examination on the dead body of Narayan at Dhemaji Civil Hospital has been examined as PW 6. The post-mortem report has been exhibited as Ext. 1. He has stated that during post-mortem examination on 15.1.1988, a stitch wound over the left temporal region of the dead body of Narayan was seen and on removal of stitches, lacerated wound of the size 2"x½" bone deep was found, and on dissection there was linear fracture of temporal bone at the side of the wound. According to his opinion, the cause of death was due to shock and haemorrhage complicated with the injury to the vital organ (brain). The IO has been examined as PW 7, and he has stated that he has prepared the inquest report, Ext. 2, and that after investigation he submitted charge-sheet against the accused persons, and the accused persons who were earlier absconding surrendered before the Court. The IO has been examined as PW 7, and he has stated that he has prepared the inquest report, Ext. 2, and that after investigation he submitted charge-sheet against the accused persons, and the accused persons who were earlier absconding surrendered before the Court. After the prosecution evidence, all five accused persons were examined on the evidence against them on 24.7.1996. On 20.8.1996, the learned Sessions Judge delivered the impugned judgment holding the appellants guilty of the offences under Sections 147 and 302, IPC. Aggrieved by the said judgement of the learned Sessions Judge, the appellants have filed this appeal. 4. Mr. P. Kataky, learned counsel for the appellants, submitted that the charges framed against the appellants were defective as no charge under Section 302/ 149IPC or under Section 302/34IPC had been framed against the appellants. He further submitted that no charge under Section 302 IPC simpliciter against any of the appellants has been framed. He argued that the appellants were highly prejudiced in taking the defence and on this ground alone the appellants are entitled to be acquitted. In support of this contention, he cited a decision of the Division Bench of this Court in Mukul Mandal-Vs-The State of Assam, 1997(111) GLT 256. Mr. Kataky next submitted that the only witness who has named the appellants in the evidence is PW1, but before the IO in her statement recorded under Section 161 Cr.P.C, she has not named Tarun A2 and Loheswar A2, appellants No. 2 and 3, and hence her statement before the court that all the appellants participated in the assault on the deceased stood contradicted by her previous statement and the appellants 2 and 3 are entitled to acquittal. He cited the decision of the Supreme Court in Mahabir Singh -Vs- State ofHaryana, AI&2001SC 2503, in which a similar contradiction in the statement of the solitary eye witness before the court and the statement before the police on a crucial aspect pertaining to complicity of co-accused was a ground for acquitting the co-accused for the offence under Section 302 IPC read with Section 34. Mr. Mr. Kataky vehemently argued that unless the solitary eye witness is wholly a reliable witness, the court should insist upon some independent corroboration of testimony of such eye witness in material particulars before recording conviction, and for this proposition, he relied on the decision of the Supreme Court in Anil Phukan -Vs- State of Assam, (1993) 3 SCC 282 . According to Mr, Kataky, the evidence of PW 1 is not wholly reliable inasmuch as she has implicated in her evidence before the Court appellants 2 and 3, namely, Tarutt A2 and Loheswar A3 although she has not implicated them in heir statement before the police Since the evidence of PW 1 has not been corroborated in material particulars by the evidence of PW 2, the conviction of the appellants is bad in law and all the appellants are entitled to acquittal. He also argued that since no overt acts have been attributed to appellants 2 to 5, namely, Tarun A1 , Loheswar A3, Sarbeswar A4 and Phuleswar A5, the said appellants 2 to 5, cannot be convicted under Section 302 IPC, read with Section 149. In support of this submission, he cited the decision of the Supreme Court in Manoj-Vs- State of Maharashtra, 1999 CrI LJ 2284. Finally he argued that from the evidence of PW1, it is clear that appellant No. 1 Toseswar gave only a single blow to Narayan after which he fell down on me ground and next day Narayan was taken to riospital and after 6 days he expired. According to Mr. Kataky, such a single blow given by Toseswar A1 during night time, when it was dark, might have landed on the head of Narayan, but from this it cannot be held that the .blow was given by appellant Toseswar with the intent to cause death of Narayan and, therefore, the offence, if any, committed by Toseswar is not under Section 302 IPC, but under Section 304, Part-II, IPC and the sentence of imprisonment for life should be converted to one already undergone. He cited the decisions of the Supreme Court in Jagrup Singh - Vs- State ofHaryana, AIR 1981 SC 7552, Jawahar Lal -Vs- State of Punjab, AIR 1983 SC 284 , Hart Ram - Vs- State of Haryana, (1983) 1 SCC 703, and the decision of this Court in Ramesh Bora -Vs- State of Assam, (1996) 3 GLR 5, (1996)3 GLT 529, in support of this submission. 5. In reply, Mrs. K. Deka, learned Public Prosecutor, Assam, contended that the fact that a single blow was given which resulted in the death of Narayan would not take the offence out of the purview of Section 302 IPC and the court will have to take into consideration all Other facts and circumstances for deciding as to whether the offence under Section 302, IPC has been committed or not. She cited the decision of the Supreme Court in Ramesh Balmiki - Vs- State of M.P. (2000) 1 SCC 318 , In support of her contention. She also relied on the decision of the Supreme Court in Jagtar Singh -Vs- State of Punjab, (1999) 2 SCC 174 , wherein the appellant was found to have inflicted one 'gandasa' blow on the head of the deceased who died after 16 days of the incident due to septicaemia caused by head injury, and the Supreme Court held that the appellant was rightly convicted under Section 302 IPC. According to Mrs. Deka, therefore, the submission of Mr. Kataky that appellant No.1, Toseswar, cannot be held to be guilty of offence under Section 302 IPC for the single blow on the deceased should be rejected by the court. She further argued that if the court finds that the other appellants 2 to 5 did not share the common object or common intention with appellant No.1 to commit the offence under Section 302 IPC, they are liable to conviction for their individual acts for other offences, This has also been laid down by the Supreme Court in Jagtar Singh -Vs- State of Punjab (supra). 6. The first question to be decided in this case is whether the conviction of all the appellants under Section 302 IPC by the impugned judgment of the learned Sessions Judge is sustainable. PW-1, the wife of the deceased Narayan, who is the eye witness to the incident has stated: "..... 6. The first question to be decided in this case is whether the conviction of all the appellants under Section 302 IPC by the impugned judgment of the learned Sessions Judge is sustainable. PW-1, the wife of the deceased Narayan, who is the eye witness to the incident has stated: "..... In the evening on the day of occurrence Toseswar, Sarbeswar, Tarun Chutia, toheram and Phuleswar Chutia, being armed with lathis and iron rods, etc. came to our house. Coming there when they beat the fence, my husband Narayan Chutia went out to the courtyard and said, "who beats the fence". At that time I was inside the house. Toseswar Chutia dealt blow on the head of my husband. Immediately he (my husband) fell down on the ground. As soon as he fell down on the ground the other accused persons also beat my husband. We came out toe house. "Why are you screaming" ? Saying this Toseswar Chutia hit me. He beat my son Suni1 Chutia also. After beating us, the accused persons fled away..." It would be clear from the aforesaid evidence that although PW 1 has stated that Toseswar A1, Sarbeswar A4, Tarun A2, Loheswar A3 and Phuleswar A5 all armed with latms and iron rods, etc. came to their house, it was only Toseswar A1 who dealt the blow on the Head of her husband. She has however staled that the other accused persons also Seat her husband, but she has not specifically stated as to how the other accused persons beat her husband and on which part of the body. PW-2, the son of the deceased and PW 1, has generally corroborated by incident as narrated by PW 1, but has stated in his cross-examination that he could not recognise the persons who had assaulted his father because it was dark. There is no other eye witness to the incident. In the absence of any clear evidence as to the exact role played by appellants Sarbeswar A4, Tarun A2, Loheswar A3 and Phuleswar A5, it is difficult to sustain the conviction of the said appellants 2 to 5 under Section 302 IPC. In Marioj -Vs- State of Maharashtra (supra) (1990 Cri. LJ 2284), cited by Mr. In the absence of any clear evidence as to the exact role played by appellants Sarbeswar A4, Tarun A2, Loheswar A3 and Phuleswar A5, it is difficult to sustain the conviction of the said appellants 2 to 5 under Section 302 IPC. In Marioj -Vs- State of Maharashtra (supra) (1990 Cri. LJ 2284), cited by Mr. Kataky, learned counsel for the appellants, the Supreme Court found that so far as the role ascribed to accused 2 and 3 in that case was concerned, the concerned witness had not given any definite overt acts excepting making the general version that all accused surrounded and assaulted, and the Supreme Court held that the evidence of the witnesses did not bring home the charge of murder against accused Nos. 2 and 3. 7. In the aforesaid decision in the case of Manoj -Vs- State of Maharashtra, the Supreme Court found that the nature of injuries found on the deceased and the medical evidence of the Doctor fully corroborated the oral evidence of PW 1 in which the role of accused No. 1 had been clearly ascribed, and the Supreme Court held that so far as accused No. 1 was concerned, the prosecution case could be said to have been proved beyond reasonable doubt on the basis of the evidence of PW 1. In the present case also, PW I has clearly stated that accused Toseswar dealt a blow on the head of her husband and immediately her husband fell down on the ground. PW 6, Doctor who etainined the dead body of the deceased Narayan and prepared the post-mortem report has, stated that during post-mortem examination he found a stitch would over the left temporal region and oft removal of stitches he found a lacerated wound of the size 2"x½" bone deep, and on dissection there was a linear fracture of left temporal bone at the side of the wound and on further dissection, the dura was found tear at the side of the fracture and the subdural space contained blood; PW 6 has also opined mat the cause of death was due to shock and haemorrhage complicated with the injury to the vital organ (brain). It is thus clear that the blow given by Toseswar with lathi or iron rod on the head of the deceased Narayan was the cause of his death. It is thus clear that the blow given by Toseswar with lathi or iron rod on the head of the deceased Narayan was the cause of his death. The evidence of PW 1 as corroborated by the injury on the temporal region of the head of the deceased and the medical evidence of the doctor, PW 6, as well as the post-mortem report, Ext-1, therefore, establish beyond reasonable doubt that the death of the deceased was caused by appellant No. 1 - Toseswar. 8. According to Mr. Kataky, however, the fact that the appellant Toseswar dealt only one blow on the deceased Narayan would show that he had no intention to cause the death of Narayan. He further argued that in the darkness of evening Toseswar could not possibly know as to whether the blow which he was giving would land on the head of the deceased or on any other part of the body. He relied on the decisions of the Supreme Court in Jagrup Singh -Vs- State of Haryana, Jawahar Lal - Vs- State of Punjab and Hari Ram -Vs- State of Haryana (supra), wherein it was held that the accused could not be said to have the intention to cause the death by a solitary blow. In Jagrup Singh -Vs- State of Haryana (supra), ( AIR 1981 SC 1552 ), the Supreme Court had found on facts that the appellant in that case had struck the deceased with the blunt side of the "gandhala" in the heat of the moment, without pre*fneditation and in a sudden fight, and the case was covered by exception 4 to Section 300, IPC and had accordingly set aside the conviction of the appellant Jagrup Singh and altered the conviction to one tinder Section 304 Part II. But m me present case, the appellant Toseswar had come armed with lathi or iron rod ready to fight, and the court cannot possibly record a finding that he had given the blow to the deceased Narayan without pre-meditation, in a sudden fight and in the heat of passion or upon sudden quarrel so as to bring the case within exception 4 to Section 300 IPC. In Jawahar Lal -Vs-State of Punjab (supra) ( AIR 1983 SC 284 ), the Supreme Court found that the first appellant Jawahar Lal was a young immature boy aged about 19 years and gave one blow with knife to the deceased and incident occurred at about 10 P.M. and there was no attempt on his part to give a second blow, and the blow that he gave in the available dim light landed on the chest of the deceased, and in those circumstances it was difficult to say that the first appellant intended to cause that particular injury on the chest and, therefore, even if the injury was proved to be fatal, the case would not be covered by para 3 of Section 300 IPC. The facts of the present case are entirely different. The appellant Toseswar came armed with lathi or iron rod, as indicated above. He along with others beat the fence of the house of the deceased Narayan and when the deceased Narayan came out to courtyard of the house, Toseswar dealt the blow on his head after which the deceased Narayan fell down on the ground and even thereafter he was beaten by the appellant. Post-mortem report, Ext-1, prepared by PW-6, the Doctor, indicates that besides the wound over the temporal region of the head of the deceased, there were other injuries on the person of the deceased. These injuries were: "1. Multiple bruises over the back of varying sizes. 2. Bruise over post aspect of left thigh size - 3"x2". 3. Abrasion over lateral aspect of natal cleft in left side - size 3"x1". 4. Linear are abrasion over back of the neck extending from the nape of the neck to back of the left shoulder size - 5"x 1/4". Thus, this is just not a case of single blow, but several blows given on the deceased out of which one blow landed on the head of the deceased. On these facts, it is difficult to hold that there was no intention on the part of the appellant Toseswar to cause the death of the deceased and that the case is not covered under Section 300 IPC. In Mahesh Balmiki -Vs- State of M.P. (supra) [(2001) 1 SCC 318], cited by Mrs. On these facts, it is difficult to hold that there was no intention on the part of the appellant Toseswar to cause the death of the deceased and that the case is not covered under Section 300 IPC. In Mahesh Balmiki -Vs- State of M.P. (supra) [(2001) 1 SCC 318], cited by Mrs. Deka, learned Public Prosecutor, Assam, the Supreme Court has held that there is no principle that in all cases of a single blow Section 302 IPC is not attracted, and the question with regard to the nature of offence has to be determined on the facts and circumstances of each case. In Jagtar Singh -Vs- State of Punjab (supra), [ (1999) 2 SCC 174 ], the Supreme Court found that Naib Singh, the deceased in that case, died 16 days after the incident due to septicaemia, but PW 1 in that case, the doctor who held the post-mortem examination categorically stated that he septicaemia was due to the head injury sustained by Naib Singh and that the injury was sufficient in the ordinary course of nature to cause death, The Supreme Court agreed with the view taken by the High Court that the injury which was intended to be caused was sufficient in the ordinary course of nature to cause death and that the case fell under Section 300 IPC. In our considered opinion, in the facts and circumstances as available from the evidence of PW 1, PW 6 and the Post-Mortem Report, Ext-1, the injury that Toseswar intended to cause was sufficient in the ordinary course of nature to cause the death of the deceased Narayan, and the appellant Toseswar is guilty of the offence under Section 302 IPC. 9. Coming to the submission of Mr. Kataky that the charge framed against the appellant Toseswar was not for the substantive offence under Section 302 IPC and, therefore, the appellant Toseswar cannot be convicted under Section 302 IPC, we find on perusal of the charge that all the appellants including Toseswar were charged for having formed an unlawful assembly and with the common object of causing the death of Narayan Chutia by means of Lakhuti, Jongra, etc. and for having committed the offences punishable under Sections 147/302 IPC. The appellant Toseswar was thus fully aware from the very beginning of the trial that the charge against him was one under Section 302 IPC. and for having committed the offences punishable under Sections 147/302 IPC. The appellant Toseswar was thus fully aware from the very beginning of the trial that the charge against him was one under Section 302 IPC. Tbe appellant Toseswar has, therefore, not suffered any prejudice in his defence. Assuming that there was some defect in the charge, Section 215 Cr.P.C., 1973, clearly states that no error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars, shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission, and it has occasioned a failure of justice. Mr. Kataky has not been able to show before this court as to how the appellant Toseswar was in fact misled by error or omission, if any, in the charge, and such error has occasioned a failure of justice. In Ramesh Bora -Vs- State of Assam (supra), (1996) 3 GLR 5, (1996)3 GLT 529), relied on by Mr. Kataky, a Division Bench of this court found that charge was framed against the accused under Sections 323/34 IPC in respect of simple hurt caused to Smti. Rashmi Rekha Bora, and that no charge had been framed under Section 302 read with Section 34 IPC and the Division Bench held that in absence of such a charge, the accused had suffered prejudice as he had no knowledge or the nature of the case that he was supposed to meet at the trial in respect of Smti. Rashmi Rekha Bora. But in the instant case, a clear charge has been framed against all the appellants including the appellant Toseswar for the offence under Section 302 IPC. In Mukul Mandal -Vs-State of Assam (supra), (1997) (III) GLT 256), relied on by Mr. Kataky, a Division Bench of this court found that there was no eye witness and the prosecution case was based on circumstantial evidence coupled with the recoveries made at the instance of the accused, and that charge had been framed against the two accused persons under Section 302 read with Section 34 IPC. Kataky, a Division Bench of this court found that there was no eye witness and the prosecution case was based on circumstantial evidence coupled with the recoveries made at the instance of the accused, and that charge had been framed against the two accused persons under Section 302 read with Section 34 IPC. The Division Bench held that after the acquittal of the co-accused for murder, the individual and not the conjoint liability of the appellant was to be established by the prosecution before the appellant could be convicted under Section 302 IPC, simpliciter. The reason was that there was no evidence whatsoever of eye witness as to who out of the two co-accused gave the stab injury on the neck of the deceased. In the present case, on the other hand, evidence of PW 1 is clear that the blow on the head of the deceased Narayan was given by none other than the appellant Toseswar. The aforesaid individual act of appellant Toseswar including other facts clearly establish beyond reasonable doubt that the appellant Toseswar is guilty of the offence under Section 302 IPC. 10. The next question to be decided is whether the conviction of all the appellants by the impugned judgment of the learned Sessions Judge under Section 147 IPC, is sustainable. Section 147 IPC provides that whoever is guilty of rioting, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. Offence of 'rioting' has been defined in Section 146 IPC, which states that whenever force or violence is used by an unlawful assembly, or by any member thereof, in prosecution of the common object of such assembly, every member of such assembly is guilty of the offence of rioting. PW 1 in her evidence, quoted above, has stated that in the evening on the day of occurrence Toseswar, Sarbeswar, Tarun, Loheswar and Phuleswar being armed with lathi, iron rods, etc. came to that house, and they beat the fence. The evidence of PW 1 further discloses that after all the appellants came to the house of the deceased armed with lathi, iron rods, etc., force or violence was used by the appellants, and in particular by the appellant Toseswar as a result of which Narayan (deceased) died. came to that house, and they beat the fence. The evidence of PW 1 further discloses that after all the appellants came to the house of the deceased armed with lathi, iron rods, etc., force or violence was used by the appellants, and in particular by the appellant Toseswar as a result of which Narayan (deceased) died. The common object of all the five appellants in this case appears to be to assault Narayan and not to cause the death of Narayan, and the appellants other than Toseswar may not be guilty of the offence under Section 302 IPC, but they were members of an unlawful assembly which had a common object and force or violence was used in pursuance of such common object. Thus, all the appellants were guilty of the offence under Section 147 IPC. 11. Mr. Kataky, of course, argued that PW1 did not tell thepolice in her statement under Section 161 Cr.P.C. that Tarun and Loheswar had assaulted her husband. Statement of a witness recorded by the Police may be use.4 by an accused to contradict such witness in the manner provided in Section 145 of the Indian Evidence Act, 1872. This would be clear from the proviso to sub-sec. (1) of Section 162 Cr.P.C., 1973. Section 145 of the Indian Evidence Act, 1872, provides that a witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved ; but if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him. In the present case, in the cross-examination of PW 1, only a suggestion had been put to her that she did not tell the police in her statement that Tarun and Loheswar had assaulted her husband, and PW 1 had denied the said suggestion. There was no question put to PW 1 that she had not stated before the police that Tarun ad Loheswar did not at all come armed with lathi and iron rods to the house. There was no question put to PW 1 that she had not stated before the police that Tarun ad Loheswar did not at all come armed with lathi and iron rods to the house. Thus, no question had been put to PW 1 to show contradiction in her statement before the court and before the police with regard to the feet of Tarun and Loheswar coming with lathi and iron rods with other appellants to the house in the evening of the day of occurrence. For the offence of rioting as 4eftflM in Section 146, IPC, it is not necessary for the prosecution to establish that Tarun and Loheswar assaulted the deceased and it is enough for the prosecution to establish that Loheswar and Tarun were also members of the unlawful assembly and that force or violence was used by any member of the said unlawful assembly in prosecution of the common object of such assembly. Hence, Tarun and Loheswar were also guilty of the offence of ribtmg along with other appellants and were punishable under Section 147 fPC. 12. In the result, while upholding the conviction of the appellant Toseswar under Section 302 IPC, and the sentence of rigorous imprisonment for life and fine of Rs. 1000/- in default further rigorous imprisonment for one year, we set aside the conviction of other appellants, namely, Tarun Chutia, Sarbeswar Chutia, Loheswar Chutia and Phuleswar Chutia, under Section 302IPC. We, however, uphold the conviction of all the appellants under Section 147 IPC. We find that the appellants Tarun, Loheswar, Sarbeswar and Phuleswar after their conviction by the impugned judgment of the learned Sessions Judge on 20.8.1996 were in custody until they were released on bail pursuant to order dated 9.7.1997. We reduce the sentence in case of all the appellants under Section 147 IPC, to the period already undergone by them. The appeal is partly allowed.