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2005 DIGILAW 515 (GAU)

Lileswar Gogoi v. State of Assam

2005-07-19

ANIMA HAZARIKA, D.BISWAS

body2005
JUDGMENT 1. Three persons from the same family faced trial for alleged commission of offence punishable under Section 302 read with Section 34 of the Indian Penal Code (in the IPC). The appellants were sentenced to undergo rigorous imprisonment for life and also to pay a fine of Rs. 4,000 each, in default, to undergo rigorous imprisonment for two(2) years more each. 2. The Instant appeal has been preferred from jail, being aggrieved by the Judgment of conviction and order of sentence dated 30.6.2000 passed by the learned Sessions Judge, Dibrugarh, in Session case No. 92 of 1999, convicting them under Section 302 read with Section 34 IPC as aforesaid. 3. The prosecution version in nutshell as follows : Banshidhar Gogoi (P.W.I) who was the father of Lakhi Gogoi (hereinafter referred to as deceased), lodged the FIR alleging that, at about 8 PM on 13.4.1997 the accused Lileswar Gogoi had called his co-villager Lakhi Gogoi to their house, whereupon two other accused Naren Gogoi and Akan Gogoi killed Lakhi Gogoi and thereafter dragged the body and threw the body in the Dhonda Nagar Gaon field. Apart from the killing of the deceased, the accused Naren Gogoi had injured many of his co-villagers hacking with dao. 4. On receipt of the ejahar by the Officer-in-Charge Bhadoi Pachali Police outpost on 14.4.1997, the same was forwarded to the officer-in-charge, Duliajan for registering the case and accordingly registered as Duliajan P.S. Case No. 48/97 under Section 324/302/201/34 IPC. 5. After registering the case on the basis of FIR Ext. I the investigating Officer (P.W.9), came to the spot for investigation. At the spot the I.O. prepared the inquest on the body of the deceased, seized a blood stained iron rod and a blood stained short hoe, prepared a rough sketch map of the place of occurrence, recorded the statements and send the dead body of the deceased to Assam Medial College Hospital for Postmortem, where the postmortem was conducted by Dr. R.K. Gogoi, who opined that the deceased died on account of shock and haemorrhage resulting from 12 injuries sustained. 6. After completing the investigation a charge-sheet was submitted in the competent Court, which on turn committed the case to the Court of Sessions, where the accused persons were tried. 7. R.K. Gogoi, who opined that the deceased died on account of shock and haemorrhage resulting from 12 injuries sustained. 6. After completing the investigation a charge-sheet was submitted in the competent Court, which on turn committed the case to the Court of Sessions, where the accused persons were tried. 7. Learned trial Judge after going through charge sheet, framed charge punishable under Section 302 read with Section 34 IPC which were denied by the accused appellants. In order to prove charge, the prosecution examined as many as 10(ten) witnesses and placed Ext-1 to Ext-4 the documents on record. The defence of accused persons are of total denial; however, they did not choose to examine any witness in their defence. 8. Learned trial Judge, after scrutinizing the evidence came to hold that, the appellants did commit offence for which they were charged, as a result of which convicted the accused appellants and passed sentences, as mentioned hereinabove and hence this appeal. 9. In this appeal Smti. B. Acharyya. appointed as Amicus Curiae, has contended the following points, viz ; (a) The Extra-judicial confession made by accused Lileswar Gogoi to PW-1, in regard to commission of offence by accused Akan, brother Dilip Gogoi and Naren Gogoi can be the sole basis of conviction. (b) The Extra-judicial confession alleged to have been made by the wife to the Police that accused Akan and his sons together had killed Lakhi as stated by PW-2 can be the factor of conviction in the criminal trial. (c) The Extra-judicial confession alleged to have been made by the mother to P.W.3 on the crime that these persons have committed the murder can be relied upon in convicting the accused persons. (d) The Extra-judicial confession alleged to have been made by the accused Lileswar to PW-4 that his brother and father had committed the murder and the wife of Akan had admitted that accused Naren, Akan and other accused persons in a body had killed Lakhi can be relied upon in convicting the accused. (e) The prosecution has established the dragging marks along with blood from the courtyard of the residence of accused Akan to the field where the dead body was lying can safely be held that the accused persons have committed the offence. (e) The prosecution has established the dragging marks along with blood from the courtyard of the residence of accused Akan to the field where the dead body was lying can safely be held that the accused persons have committed the offence. (f) Whether adverse inference can be drawn against accused Akan and Naren since they were alleged to have been absconding after the occurrence ? (g) Whether the prosecution has established the factum of recovery of weapon from the possession of the accused used in the commission of crime ? (h) Whether the trial Court was justified in framing the charge under Section34 IPC and whether the prosecution has established the common intention of the accused in the commission of offence during the trial. (i) Whether the prosecution case was fatal due to non-examination of the old lady, i.e., wife of accused Akan ? (j) Whether the weapon used in the commission of crime and the blood contained therein without the report of Forensic Laboratory is safe to connect the accused with the crime. 10. In order to appreciate the contentions raised by the learned Amicus Curiae, we have examined the evidence led by the prosecution. PW-1 is the father of the decease, who had filed the FIR Ext-1. In Ext-1, it was stated that, on 12.4.1997 at about 8 PM, the accused Lileswar Gogoi had called the deceased to his house, whereupon accused Naren and Akan killed the deceased the deceased Lakhi Gogoi there, hitting him with sharp weapon on different part of his body and dragged the body at night itself and threw the body in Dhonda Nagargaon field. The accused Naren had injured many of his co-villagers hacking with dao. In the examination of chief he has deposed that the deceased died on 13.4.1997. The occurrence took place at night. On the following day he has seen the dead body lying in the field. He along with other accused persons have seen the mark of dragging from the house of the accused to the place where the dead body was lying. The witness has deposed that they also found Lakhi Gogoi's underpants, a wrist watch and a packet of cigarette at the gate of the accused persons. Following the track, a along with other witnesses entered the yard through the rear. The witness has deposed that they also found Lakhi Gogoi's underpants, a wrist watch and a packet of cigarette at the gate of the accused persons. Following the track, a along with other witnesses entered the yard through the rear. There they have found under a shaddock tree at the rear of the yard, pool of blood. They went inside the house of the accused and had found the wife of accused Akan who was scrapping the blood in the floor. She had also been sowing husks of paddy on the pool of blood, upon being asked, accused Lileswar Gogoi had admitted that the accused Akan, Dilip and Naren together had killed the deceased. The accused persons named by accused Lileswar were not in their home. They were absconding. Lileswar was handed over to thana. In the cross-examination he has deposed that accused Lileswar had mentioned the name of Akan and Naren. 11. PW-2 was the president of Gaon Panchayat. He accompanied the police the field, where the dead body was lying. He signed in the Inquest Report vide Ext. 2(1). He has also seen the mark of dragging and they advanced to the destination point which led to the residence of the accused persons. However, this witness, who is an independent witness, has deposed that they have not found any clear mark of dragging in accused Akan Gogoi's yard. However, found blood mark on the track to Akan Gogoi's house from the near of it. The witness has also deposed that they have found marks of attempt to scrap out the blood with hoe. They also found a underpant being kept hanged on the fences at the near of Akan Gogoi's residence. The witness has deposed that under pant might belong to Akan Gogoi. There was pool of blood in the yard. Ext-3 is the seizure list and Ext. 3(1) is his signature. From the facts stated hereinabove the witness presumed that the accused persons had killed the deceased. There was an old lady in accused Akan's house and on being interrogated by the police she had told that Akan and his sons together had killed the deceased. In the cross-examination nothing incriminating has come out. 12. PW-3 has deposed in the same line as that of PWs-1 and 2 in regard to pool of blood, dragging of the body to the house of the accused persons. In the cross-examination nothing incriminating has come out. 12. PW-3 has deposed in the same line as that of PWs-1 and 2 in regard to pool of blood, dragging of the body to the house of the accused persons. The witness has deposed that when they went to the residence of the accused persons only accused Kamaleswar was present at home. Their mother said, "these persons have committed the murder. Do not take any steps against us". In the cross-examination the suggestions made has denied by him 13. PW-4 is the younger brother of the deceased. He has deposed that Barnali Gogoi had seen the dead body when she went to fetch water. The examination-in-chief is in the same line of the witnesses mentioned hereinabove. He along, with other witnesses had seen the marks of dragging. The marks of dragging stretched upto the rear field of the residence of the accused persons. Following the track they had entered the residence of the accused persons. They have found blood upto the interior of accused persons house. Entering their house they had met Lileswar. Lileswar told them that his brother and father had committed the murder. After that they met the wife of the accused Akan. She admitted that Naren Gogoi, Akan Gogoi and other accused persons in a body had killed Lakhi. Police seized a lathi, a rod and a dao. Ext-2 is the seizure list and Ext.2(3) is his signature. In cross-examination he had deposed that he has found the dragging mark of the body to the house of the accused persons. He has seen blood inside the house. Inside the house they had met Lileswar. Police took away Lileswar under arrest. 14. PW-5, neighbour of the accused persons has deposed that, he has seen the dead body lying in the filed of Maheswar Gogoi (P.W.3). he along with Dwizen Gogoi went to inform the police, they have filed the ejahar, they have seen the mark of dragging the dead body from the interior boundaries of the residence of the accused persons. In the cross-examination this witness has deposed that since there was a dragging mark of the dead body to the residence of the deceased he has guessed that the accused persons had killed the deceased. 15. P.W.6 has deposed that he has found the police in the filed where the dead body was lying. In the cross-examination this witness has deposed that since there was a dragging mark of the dead body to the residence of the deceased he has guessed that the accused persons had killed the deceased. 15. P.W.6 has deposed that he has found the police in the filed where the dead body was lying. Police had brought accused Lileswar Gogoi under arrest before his arrival. The other two accused persons were absconding. He had accompanied the police to the residence of the accused persons. Police seized a blood stained hoe and a blood stained iron rod. Mat. Ext-1 is the hoe and Mat. Ext-2 is the Iron rod. 16. PW-7 has deposed that he had learnt from the people that the accused persons had killed the deceased. PW-8 is the writer of FIR Ext-1 and Ext-(3) is his signature. He deposed that he had written the ejahar as per statement of Bansidhar Gogoi (P.W.I). 17. PW-9 is the Investigating Officer who has deposed that on receipt of Ext. 1, he had made a G.D. entry and sent to Duliajan thana. He found the dead body lying in the field. He held the inquest report. Ext-2 is the inquest report. Ext-2(1) is his signature. He had sent the dead body to Assam Medical College for autopsy. He has found that the public had kept Lileswar Gogoi confined. He has interrogated the accused Lileswar Gogoi. He did not find accused Naren and Akan upon search. He has seized a blood stained iron, rod and blood stained hoe as shown by the public. These articles under seizure were seized from the residential compound of Naren. Mat. Extt. 1 is the short hoe. Mat. Ext. 2 is the iron rod. On the day of occurrence some people apprehended Akan and produced him in the police station. He could not find Naren. However, on his transfer Nitya Sonowal arrested accused Naren Gogoi at Tengaht and interrogated him. Nitya Sonowal submitted the charge-sheet after collecting the report of postmortem examination. In cross-examination he has admitted that he has not sent the blood to Forensic Science Laboratory (FSL in short) for ascertaining whether it was the human blood or not. However, on his transfer Nitya Sonowal arrested accused Naren Gogoi at Tengaht and interrogated him. Nitya Sonowal submitted the charge-sheet after collecting the report of postmortem examination. In cross-examination he has admitted that he has not sent the blood to Forensic Science Laboratory (FSL in short) for ascertaining whether it was the human blood or not. He has admitted that PW-1 has not stated before him that he had found the underpants and the watch in front of the house of the accused and other suggestions put to him has been dined by him. 18. PW-10 is Dr. R.K. Gogoi who held the autopsy on the dead body of the deceased and found the following injuries, viz ; (a) An incised wound present on occipital area of the scalp in sagistttal place, measuring 7x2 cm scalp deep. (b) A lacerated wound present on right eyebrow 3 x 2 cm skin deep. (c) A stab wound present on upper part of the right lateral sides of the neck, size 1 x 1 cm muscle deep. (d) A stab wound present on right 5th intercostals space and in mid-clavicular line, 2 x 1 cm thoracic cavity deep. (e) A stab wound present on left 5th intercostals space and 2 cm away, from sternal margin (2 x 1 cm) thoracic cavity deep. (f) A stab wound present on left 5th intercostal space and in anterior axillary line, 2 x 1 cm in size, thoracic cavity deep. (g) A stab wound present on right 5th intercostals space and mid clavicular line, 2 x 1 cm thoracic cavity deep. (h) A stab wound present on right 7th intercostal space and in anterior axillary line, 2 x 1 cm thoracic abdominal cavity deep. (i) A stab wound present on epigestic area of abdomen, 2 x 1 cm abdominal cavity deep. (j) A stab wound present on middle part of the right costal margin, 2 x 1 cm abdominal cavity deep. (k) A stab wound present or right side of back of the thorax in 7th intercostals space and 5 cm away from midline 2x1 cm muscle deep. (l) A stab wound present on left side of back of the thorax in 5th intercostals space and 3 cm away from middle line 20 x 1 cm muscle deep. In the opinion of the doctor cause of death was shock and haemorrhage, resulting from injuries sustained. (l) A stab wound present on left side of back of the thorax in 5th intercostals space and 3 cm away from middle line 20 x 1 cm muscle deep. In the opinion of the doctor cause of death was shock and haemorrhage, resulting from injuries sustained. All injuries were ante-mortem and homicidal in nature. The incised wound were caused by heavy sharp cutting weapon, lacerated wounds were caused by blunt force impact and the stab wound were caused by sharp pointed weapon. Ext. 4 is the postmortem report and Ext. 4(1) is his signature. 19. The accused were examined under Section 313 of the code of Criminal Procedure. Altogether 45 questions have been asked to accused Naren Gogoi. In a query from the Court he has stated that no mark had been found. No occurrence had taken place at their residence. The hoe and rod do not belong to them. He further stated that, "It is a fact that I admitted before P.W.4 Golap that I had murdered Lakhi Gogoi". The last question the trial Court had asked "Do you have anything more to say in connection with this case ? Will you adduce defence witness ? The accused gave the reply in the following way - One Garu Bihu Day, at noon, I had been at may elder sister's house. At 5 P.M., in the evening, when I had been preparing to leave for my home, I had not met my friend Atul Gogoi, had gone to his house with him, had taken rice there and had stayed there upto 7 PM. A little later Atul's uncle's son Kiron Gogoi came there and asked me lend him Rs. 50 whereupon I told him that I had no money with me. An altercation took place between Kiron and me over that, whereupon all his brothers came and assaulted me when I was fleeing from there, Lakhi Gogoi was pursuing me. Then I stopped in the field but, he started to beat me. I tried to pacify him but he did not pay head to my consolation. When he dealt a blow with a knife, I darted and the blow hit my hand and caused tearing injuries. When he attempted to hit me again, I snatched away the knife and killed him on the private parts. I tried to pacify him but he did not pay head to my consolation. When he dealt a blow with a knife, I darted and the blow hit my hand and caused tearing injuries. When he attempted to hit me again, I snatched away the knife and killed him on the private parts. As a result he fell down I do not know what I did after that. This much I have to say. 20. The accused Lileswar Gogoi was examined under Section 313 of the Code of Criminal Procedure and he had pleaded innocence. On being asked by the Trial Court as to whether he has anything to say in connection with the case, he replied as follows : - I had been sleeping at my home on the day of occurrence. The following morning Banshi Gogol (PW-1), Mileswar and many people came to our residence. They beat me inside my house. They hit me in my waist and head. They took me to field under seizure. They also apprehended father after his return from latrine. They broke one of my father's legs and dragged him to field in that state. They took both of us near to the dead body. After that they tied both of us together. At about 9 O'clock, the police from Bhadoi Panchali took us to thana. Tankeswar took father back that very day. I have no more to say. 21. The accused persons were heard under Section 235(2) of the Code of Criminal Procedure. The question put to the accused Lileswar and Akan in regard to the sentence and the reply by Lileswar is that he had not committed any crime and in case of Akan, his reply was he may be pardoned. But in case of accused Naren, the reply was he had killed the man. He had killed Lakhi Gogoi in self defence as he had assaulted him ad hence prayed for lesser punishment. 22. We have considered the contentions raised by the Amicus Curiae in regard to extra-judicial confessions made by Lileswar and his mother Chang Gogoi. The extra judicial confession alleged to have been made by the accused Lileswar Gogoi to PW-1, PW-4 and the extra judicial confession made by the wife/mother to the police, and extra-judicial confession made to PW-3 and PW-4. We have considered the contentions raised by the Amicus Curiae in regard to extra-judicial confessions made by Lileswar and his mother Chang Gogoi. The extra judicial confession alleged to have been made by the accused Lileswar Gogoi to PW-1, PW-4 and the extra judicial confession made by the wife/mother to the police, and extra-judicial confession made to PW-3 and PW-4. According to the prosecution witness PW-1, upon being asked, the accused Lileswar Gogoi admitted that his father Akan Gogoi, brother Dilip and Naren Gogoi together had killed Lakhi Gogoi. PW-2 has not mentioned about the admission of the accused Lileswar Gogoi. PW-3 is silent about the extra-judicial confession alleged to have been made by the accused Lileswar Gogoi. PW-4 has deposed that the accused Lileswar Gogoi told them that his father and brother had committed the murder. 23. In regard to extra-judicial confession alleged to have been made by the wife/mother of the accused Akan, Lileswar and Naren to PW-2, PW-3 and PW-4 can be relied upon in convicting the accused persons. The trend of persecution witnesses would show that all the witnesses went to the residence of the accused persons and there are veracity of the statements of the witnesses. Now the Court is to decide as to whether the extra-judicial confessions are voluntary. The value confession will have to be proved like any other fact of the evidence as to confession, like any other evidence depends upon the veracity of the witness who gives the evidence. It would depend on the nature of circumstances, the time, when the confession was made and the credibility of the witnesses who speak to such a confession. 24. In the instant case accused Lileswar Gogoi was apprehended by the people and tied up and, thus, his confession cannot be said to be voluntary. Even PW-9 has admitted that the accused Lileswar Gogoi was tied up when he arrived at the place of occurrence. Moreover, all the witnesses, except PW-2 are highly interested witnesses and the veracity of the statements of the witnesses to whom extra-judicial confession alleged to have been made would show that there were similarity of the expressions in two extra-judicial confessions. Therefore, this Court cannot rely on these two extra-judicial confessions in arriving the guilt of the accused, more so, when the prosecution has failed to examine the wife/mother of the accused Akan, Lileswar and Naren respectively. 25. Therefore, this Court cannot rely on these two extra-judicial confessions in arriving the guilt of the accused, more so, when the prosecution has failed to examine the wife/mother of the accused Akan, Lileswar and Naren respectively. 25. The prosecution witnesses have laid emphasis on the marks of dragging the dead body along with blood, from the courtyard of the residence of the accused Akan to the field, whether led to the conclusions that these accused persons have committed the murder. Admittedly, there is no eye witness to the occurrence. Ext-1, proved by the prosecution would show that the occurrence took place on the night of 13.4.1997, when the accused Lileswar had called the deceased in their residence and the dead body was found in the morning of 14.4.1997. But PW-9, the I.O., when he has made the inquest report recorded that the public had told him that the accused Naren Gogoi and his father accused Akan Gogoi together had called the deceased into their house and killed him hitting with pointed weapon and dao. Therefore, Ext-1 Ejahar coupled with the statements of the witness has make the prosecution case doubtful in respect of involvement of accused Lileswar Gogoi. Moreover, in regard to dragging marks of the dead body, the independent witness P.W.2 has stated that they have not found any clear mark of dragging in Akan Gogoi's yard and the deposition of PW- 9, I.O. is silent about the dragging of dead body, which makes the prosecution case doubtful. 26. In regard to absconding of accused Akan and Naren, whether adverse inference can be drawn against them. Admittedly, Akan was apprehended by some people and produced him in the than a on the date of occurrence itself. He was apprehended after his return from latrine and public had assaulted him and tied him as stated by the accused Lileswar. Therefore, adverse inference against the accused Naren can be drawn against him, because in fact, he was absconding and he was arrested in Tengakhat and his involvement in the culpability of murder cannot be ruled out from the evidence on record, more so, when he had admitted before the trial Court, both under Sections 313and 235(2) of the Code of Criminal Procedure, that he had committed the crime. 27. The factum of recovery of weapons alleged to have been used in the commission of offence, would show that, vide Ext. 27. The factum of recovery of weapons alleged to have been used in the commission of offence, would show that, vide Ext. 3, a short hoe and a rod has been recovered from the compound of the accused Naren Gogoi. The assault on the person of the deceased vide Ext. 2 (inquest report) and Ext. 4 (Post mortem report) would negate the prosecution case of assault. The alleged blood stain in the weapons has not been sent to FSL to prove that the blood belongs to human being. However, the short hoe can presumably be used to eliminate the blood marks from the place of occurrence and the lacerated injury caused by blunt force impact cannot be made by short hoe and a rod. Therefore, the assault by a weapon like short hoe and rod, cannot be attributed to the accused and the prosecution has miserably failed to established to prove that the weapon used are short hoe and rod. 28. The trial judge has framed charge under Section 302/34 IPC against all the accused persons. No the question requires to be considered as to the whether the prosecution has proved the charge with the aid of Section 34 IPC. Section 34 IPC has been enacted on the principle of joint liability in the doing of a criminal act. The Section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the Section is the element of participation of action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial evidence, that there was a plan or meeting of minds of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be it pre-arranged or on the spur of moment, but it must necessarily be, before the commission of crime. In the instant case, the prosecution has miserably failed to bring home the charge under Section 34 IPC as it would reveal from the evidence on record and this Court has no hesitation to hold that the prosecution has failed to prove that there was a plan or meeting of minds of the accused person in committing the crime. 29. That being the case, this Court is inclined to set aside the conviction under Section 302 with Section 34 IPC and the prosecution having failed to prove the meeting of minds of the accused persons in committing the crime, the conviction and sentence in respect of accused Akan Gogoi and Lileswar Gogoi are set aside and quashed. They shall be released forthwith. However, the conviction and sentence under Section 302 IPC is confirmed against the accused Naren Gogoi and he shall serve the remaining part of the sentence passed by the learned Sessions Judge, Dibrugarh in Sessions Case No. 92/99.