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2005 DIGILAW 680 (GAU)

Binoy Jyoti Nag v. State of Assam

2005-09-15

AFTAB H.SAIKIA, D.BISWAS

body2005
JUDGMENT D. Biswas, J. 1. The aforesaid four Appellants were tried by the learned Sessions Judge, Karimganj in Sessions Case No. 22/90 and on conclusion of trial, by the judgment dated 28.7.2000, were convicted under Section 147/148/149/447/324/326/302 I.P.C. On such conviction, accused Smriti Bala Das was let off on admonition and other accused persons sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.500/-, in default, to suffer one month rigorous imprisonment under Section 148 I.P.C. Accused Nripesh, Ashulal, Binoy and Sujit were sentenced to undergo two years rigorous imprisonment and to pay a fine of Rs.500/-, in default, to further rigorous imprisonment for one month under Section 324 I.P.C. Accused Nripesh, Ashulal and Binoy have been sentenced to rigorous imprisonment for life and to pay a fine of Rs.1,000/-, in default, to two months imprisonment under Section 302 I.P.C. for causing death of Debendra Das intentionally. It maybe mentioned here that Sujit Das who has been convicted along with other accused persons has not preferred any appeal. Accused Anil Das has in the meantime expired and Appellant Mintu Das is on bail. 2. Ext. 8 is the FIR lodged before the Officer-in-Charge of Badarpur Police Station on 22.12.1996 by Kaushyalaya Bala Das (P.W. 1) alleging that at about 2 P.M., on 22nd December, 1996 accused Shri Nripesh Ch. Das, Shri Binoy Nag, Shri Anil Ch. Dey and Shrimoti Smritibala Das armed with deadly weapons like rod, Crowbar, dao, spear etc. encroached upon her homestead and killed her husband Shri Debendra Das, injured severely her dauhters Purnima Rani Das and Nilima Rani Das and her nephew and niece Shri Krishna Das and Shrimoti Sibani Das. It is further informed in the FIR that the injured persons have been undergoing treatment at Karimganj Civil Hospital and the dead body of her husband Debendra Das was lying at the homestead. 3. On receipt of the ejahar, the police registered Badarpur P.S. Case No. 260/96 dated 22.12.1996 under Section 147/148/ 447/325/326/302 I.P.C. P.W. 12, Md. Basir Uddin Laskar, Sub-Inspector of Police was entrusted with the investigation of the case. He visited the place of occurrence, examined the witnesses, held inquest (Ext. 9) over the dead body and prepared a sketch map (Ext. 10). Eventually, on completion of the investigation, the I.O. submitted charge sheet. 4. Basir Uddin Laskar, Sub-Inspector of Police was entrusted with the investigation of the case. He visited the place of occurrence, examined the witnesses, held inquest (Ext. 9) over the dead body and prepared a sketch map (Ext. 10). Eventually, on completion of the investigation, the I.O. submitted charge sheet. 4. On commitment, the learned Sessions Judge after compliance of all the formalities, framed charge against (1) Nripesh Chandra Das, (A2) (2) Smriti Bala Das, (3) Binoy Nag, (A1) (4) Anil Kumar Nag, (5) Ashulal Das,(A3) (6) Mintoo Das (A4) and (7) Sujit Das under Section148/149/447/324/326/302/34 IPC. The charges were read over to the accused persons to which they pleaded not guilty and claimed to be tried. Thereafter, the learned Sessions Judge proceeded with the trial, recorded the statements of as many as 12 Prosecution witnesses and 2 Defence witnesses including the Investigating Officer and the Medical Officer. After examination of the accused persons under Section 313 Code of Criminal Procedure and on completion of the argument, the learned Sessions Judge delivered the above judgment convicting the accused persons. 5. At the very outset, we would like to go through the postmortem report and the injury report. P.W. 6 Dr. Arup Kumar Daityari had performed the postmortem examination on the dead body of deceased Debendra Das, P.W.7 Dr. Ranjit Baidya and P.W. 10 Dr. S. Das had examined the injured persons. 6. The injuries sustained by the deceased Debendra Das as evinced by of P.W. 6 Dr. Arup Kumar Daityari are as follows: A tall man of average health about 60 years of age with rigor mortis present all over the body, Injuries 1) Eyes half closed with penetrating injury on the chest 1/2" Long x 1/4" breadth below the right nipple; 2) Right side in the mid-axillary line in 8th intercostals space 1/2"x1/4"; 3) Right axilla apical region 1/2"x1/4". No other sign of any injury seen. Other anatomical sifides are normal. Cranium and Spinal Canal There was no injury in scalp, skull and vertebrae. Membrane was intact and brain and spinal cord were congested. Thorax Walls, ribs and cartilages as discussed in column I (external appearance), pleurae was lacerated, congested and hemothorax, all other organs were congested. Abdomen All organs were congested. More detailed description Penetrating injury multiple developing hemothorax and death was ante mortem. Membrane was intact and brain and spinal cord were congested. Thorax Walls, ribs and cartilages as discussed in column I (external appearance), pleurae was lacerated, congested and hemothorax, all other organs were congested. Abdomen All organs were congested. More detailed description Penetrating injury multiple developing hemothorax and death was ante mortem. Opinion Cause of death was hemothorax due to multiple penetrating injuries causing haemorrhage, death and injuries being ante mortem. Ext. 1 is the post mortem report, ext. 1(1) is my signature. 7. The injuries sustained by the injured Miss Purnima Das and Mrs. Shibani Das as evinced by P.W. 7 Dr. Ranjit Baidya in his evidence are as follows: On oath: On 22.12.96 I was attached to Civil Hospital, Karimganj, as M and H.O.I. On that day I examined Miss Purnima Das in the surgical ward and found as follows: 1. Penetrating injury, Epigastric region 1"x½x1". 2. Penetrating injury back of left hypochowdrium ½"x½"x1". 3. Tenderness on left shoulder. 4. Tenderness on left shoulder. On X-ray of chest, abdomen and left shoulder, no abnormality detected. Inference Injuries 1 and 2 were fresh, simple and caused by penetrating weapon. Injury No. 3 was fresh, simple and caused by blunt weapon. Ext. 2 is the injury report. Ext. 2(1) is my signature. On the same day I also examined Mrs. Shibani Das, aged 30 years in the surgical ward and found as follows: 1. Incised wound over left infraorbital region 5"x1"x1½" cutting the muscles, right zygomatic bone, right nasal bone and acute peer odontitis in upper right 1, 2, 3, 4, 5, teeth with fracture in upper right 5,4 teeth with little displacement of right upper 1/1 in USB. X-ray was done in skull, right zygomatic bone and right nasal bone. Inference Injury was fresh, grievous and caused by sharp weapon. Ext. 3 is the said injury report. Ext. 3(1) is my signature. Ext. 4 is the discharge slip issued by me in respect of purnima Das. Ext. 4(1) is my signature. Ext. 5 is the discharge slip issued by me in respect of Shibani Das. Ext. 5(1) is my signature. XXXXXXX For all the accused. Injuries mentioned in Exts. 2 and 3 may be caused by fall in bamboo bush and hard substance like bamboo root respectively. Exts. 4 and 5 have been issued on the basis of Hospital register of indoor patients. 8. P.W. 10 Dr. Ext. 5(1) is my signature. XXXXXXX For all the accused. Injuries mentioned in Exts. 2 and 3 may be caused by fall in bamboo bush and hard substance like bamboo root respectively. Exts. 4 and 5 have been issued on the basis of Hospital register of indoor patients. 8. P.W. 10 Dr. Swapan Kumar Das, who also examined the injured persons, in his evidence deposed as follows: On oath: On 22.12.961 was attached with Karimganj Civil Hospital as Senior M and H.O. On that day on police requisition I examined Purnima Das, daughter of late Debendra Das of village Nandapur and found as follows: 1. 1/2"n1/4"1/2" Penetrating wound on the medial aspect of the left chest. 2. ¼"x¼" penetrating wound on the laternal aspect of the left chest in between 8th and 9th ribs. The injuries were fresh and caused by sharp pointed object. I referred the injured to Surgical Ward of Karimganj Civil Hospital for admission of the injured and for stitching and treatment. On the same day on police requisition I also examined Shibani Das, aged 30 years, daughter of late Narendra Das of village Nandapur and found as follows: Injuries 1. One incised wound from mid nose to the right maxillary area of face cutting the adjoining skin and muscles. 2. 1"x¼"x¼" incised wound on the posterior aspect of the left shoulder. The injuries were fresh and caused by sharp object. On the same day on police requisition, I also examined Nilima Das D/o late Debendra Das of village Nandapur and found as follows: Injuries 1. ¼x¼" incised wound on the left chest below the left nipple. The injury was fresh and caused by sharp object. On the day on police requisition, I also examined Krishna Kanta Das, aged about 32 years, S/o Late Gopendra Das of Village Nandapur and found as follows: Injuries 1. Tenderness on the left shoulder. 2. 3"x 1" bruise on the left scapular area., 3. 1"x1/4" abrasion on the medical aspect of the left wrist. The injuries were fresh and caused by blunt object. I referred the aforesaid injured Shibani Das, Nilima Das and Krishna Kanta Das also to surgical ward of Karimganj Civil Hospital for admission in the Hospital and for stitching and treatment. Ext. 7 is the injury rapport. Exts. 7(1), 7(2), 7(3) and 7(4) are my signatures. 9. The evidence of P.W. 6 Dr. I referred the aforesaid injured Shibani Das, Nilima Das and Krishna Kanta Das also to surgical ward of Karimganj Civil Hospital for admission in the Hospital and for stitching and treatment. Ext. 7 is the injury rapport. Exts. 7(1), 7(2), 7(3) and 7(4) are my signatures. 9. The evidence of P.W. 6 Dr. Arup Kumar Daityari read with the inquest report establish that Debendra Das succumbed to the various injuries sustained by him on vital parts of the person. The evidence of P.W. 7 and P.W. 10 establish that Miss Purnima Das, Mrs. Shibani Das and Krishna Kanta Das also sustained multiple injuries, some of which are grievous in nature. 10. Mr. J.M. Choudhury, learned senior Counsel appearing for the Appellants in Criminal Appeal No. 240/2000 submitted that the entire occurrence took place in view of the pending land dispute between the parties and there was a mutual fight amongst them. The accused persons acted in exercise of their right of private defence and they also sustained injuries. Mr. Choudhury further submitted that no blood mark was found on the courtyard where the dead body was lying and this is suggestive that the occurrence took place somewhere else. According to Shri Choudhury, the learned Sessions Judge also dealt with a counter case (Sessions Case No. 84/1999) initiated at the instance of the accused persons and acquitted the prosecution party on the ground that the charges against them could not be proved beyond reasonable doubt. It is stated at the bar that no appeal has been preferred against the judgment of acquittal in the counter case. Mr. A.K. Goswami, learned senior counsel submitted that the evidence of P.W.s 1, 2 and 3, the eyewitnesses are not consistent and they have also indulged in embellishment which would be evident from the contradictions on record. 11. P.W.s 1, 2, 3 and 4 are the star witnesses for the prosecution. The prosecution case is based on these four witnesses. It may be mentioned here that all of them are eyewitnesses to the occurrence. 12. P.W. 1, Smti Kaushalaya Bala Das is the wife of the deceased Debendra Das. According to her, the occurrence took place a few years back in the month of Paush, on a Sunday at about 2 P.M. She heard hue and cry in the "Charabari", a vacant homestead adjoining her residence. 12. P.W. 1, Smti Kaushalaya Bala Das is the wife of the deceased Debendra Das. According to her, the occurrence took place a few years back in the month of Paush, on a Sunday at about 2 P.M. She heard hue and cry in the "Charabari", a vacant homestead adjoining her residence. Her house and the Charabari is intervened by a village path. There was sound of felling of bamboos. She went to Charabari and saw Nripesh along with six others cutting their bamboos. Her husband Debendra Das who was busy in the paddy field nearby was informed by her daughter Purnima Debendra came and raised protest. Accused Nripesh threatened to kill her husband. Her husband ran away towards their house on being chased by the accused Nripesh, Binoy, Ashu, Anil, Sujit, Mintu and Smriti Bala. The accused persons were armed with ballam, iron road, dao and shabal. Accused Nripesh (A2) Binoy (A1) and Ashulal (A3) had ballam (spear) in their hands. Anil had shabal and accused Sujit had iron rod while accused Mintu (A4) and Smriti Bala had daos in their hands. The accused persons attacked her husband in the Courtyard. Nripesh. Binoy (A1) and Ashu (A2) assaulted her husband with ballam causing injuries on his chest and other parts of his body. Accused Nripesh(A2) and Binoy (A1) assaulted her daughter Purnima with ballams. Accused Ashu (A3) assaulted her daughter Nilima Rani with ballam. Accused Smriti Bala assaulted her neighbour Shibani with dao. Accused Sujit assaulted Krishna with iron rod. Her husband died on the spot. She immediately lodged an FIR written by Abdul Jalil before the Officer-in-Charge of Badarpur Police Station. According to her, Surendra and Maya Rani Das who accompanied her to the police station also came to the place of occurrence after hearing hue and cry and saw the occurrence. Co-villagers Subodh and Badal shifted Purnima, Nilima, Krishna and Shibani to Karimganj Civil Hospital for treatment. She further stated that Charabari and bamboo clamps are under their possession. Accused Nripesh initiated abortive cases against them claiming the said Charabari. Accused Nripesh once set fire to their dwelling houses and in that case Nripesh Das was convicted. The civil suit filed by Nripesh Das was pending for disposal on the day of occurrence. 13. The next eyewitness is P.W. 2, Ms. Nilima Rani Das, daughter of deceased Debendra Das. Accused Nripesh initiated abortive cases against them claiming the said Charabari. Accused Nripesh once set fire to their dwelling houses and in that case Nripesh Das was convicted. The civil suit filed by Nripesh Das was pending for disposal on the day of occurrence. 13. The next eyewitness is P.W. 2, Ms. Nilima Rani Das, daughter of deceased Debendra Das. According to her, the occurrence took place on 22.12.1996 at around 2 P.M. Accused Nripesh Chandra Das was cutting bamboos from their Charabari attached to their homestead. Her father who was busy in harvesting paddy in the agricultural land at a distance of 1/2 K.M. intervened. On being informed, accused Nripesh was found cutting bamboo from Charabari. Immediately accused Anil, Binoy, Sujit, Ashu, Mintoo and Smritibala armed with ballam, shabal and dao etc. joined hands with Nripesh and chased her father from Charabari to their house and assaulted her father Debendra in the courtyard. Accused Nripesh, Binoy and Ashu assaulted her father with ballams causing injuries on his chest. Her father fell down on the ground. This witness along with her mother Kaushalaya Bala Das (P.W.-1), sister Purnima and Shibani intervened and at that point of time Smiriti Bala Das assaulted Shibani with dao on her nose. Accused Sujit assaulted Shibani with iron rod on her left shoulder. Accused Ashu assaulted this witness with ballam causing injury on her chest. Accused Nripesh assaulted Purima with ballam on her chest. Accused Binoy assaulted Purnima with ballam on her back. Her father died on the spot. Badal and Subodh, Co-villagers, shifted Purnima and Shibani to Karimganj Hospital. This witness was discharged on the next day. Shibani was under treatment for 17 days, while Purnima had treatment for 19 days. According to her, their neighbours Surendra Das and Nibaran Das came to the place of occurrence and saw the entire incidence. 14. P.W. 3, Smti Purnima Rani Das is the daughter of deceased Debendra Das. She also supported the evidence of P.W.s. 1 and 2 in all material points. According to her, she was sent by P.W.-1 to inform her father that Nripesh was cutting bamboos in their Charabari. Her father came and forbade Nripesh from doing so. At that point of time, accused Nriesh Das, Ashu Das and Binoy Nath injured her father on the chest with spear in their courtyard. Her father fell down on the ground. According to her, she was sent by P.W.-1 to inform her father that Nripesh was cutting bamboos in their Charabari. Her father came and forbade Nripesh from doing so. At that point of time, accused Nriesh Das, Ashu Das and Binoy Nath injured her father on the chest with spear in their courtyard. Her father fell down on the ground. When she intervened to save her father, accused Nripesh Das injured her on the back with spear. Her younger sister Nilima Das was also assaulted by accused Ashu Das below her chest with spear. Accused Sujit Das hit Sibani on her left shoulder with iron rod. Being attracted by the hue and cry, neighbours came to the place of occurrence and shifted this witness along with other injured persons to Karimganj Civil Hospital, while her father was lying unconscious on the ground. Her father died on the spot. 15. P.W. 4 Smti Sibani Das also sustained injuries in the occurrence. She is also an eye witness to the occurrence. She went to fetch water from the pond of the deceased. On her return, she heard a hue and cry and went inside the house compound of Debendra. There she saw accused Nripesh Das, Ashu Das, Binoy Nag, Anil Nag, Sujit Das, Mithu Das and Smriti Bala Das chasing Debendra Das towards his homestead on the southern side. Accused Nripesh Das assaulted Debendra on the chest with a spear. He fell down on the ground. Smriti Bala Das assaulted this witness hacking her in the nose and cheek with dao. Accused Sujit Das assaulted this witness on the left shoulder with iron rod. Anil Nag and Mithu Das were seen armed with crowbar and dao respectively. But this witness did not see them doing anything. Accused Ashu injured Nilima with spear. Nripesh assaulted Purnima with spear. Accused Binoy Nag also assaulted Purnima on the belly with a spear. She was also taken to Karimganj Hospital. Debendra died at the place of occurrence. 16. P.W. 5 is Sri Nibaran Das. He also saw the occurrence when he went there after being attracted by hue and cry. He saw accused Nripesh Das, (A2) Binoy Nag, (A1) Ashu Das, (A3) Sujit Das, Anil Nag, Smriti Bala Das and Mithu Das (A4) assaulting Debendra in his courtyard. He deposed that accused Nripesh, Binoy and Ashu Das assaulted Debendra with spears. He also saw the occurrence when he went there after being attracted by hue and cry. He saw accused Nripesh Das, (A2) Binoy Nag, (A1) Ashu Das, (A3) Sujit Das, Anil Nag, Smriti Bala Das and Mithu Das (A4) assaulting Debendra in his courtyard. He deposed that accused Nripesh, Binoy and Ashu Das assaulted Debendra with spears. Debendra fell down and became unconscious. Nripesh and Binoy assaulted Purnima on the chest and belly, while accused Ashu Das injured Nilima in the belly with a spear. The accused persons threatened this witness when he tried to intervene. After the occurrence, the accused persons fled away. 17. P.W. 1 was cross-examined at length. But, infact there is no challenge to her evidence to the effect that the accused persons had assaulted her husband and killed him on the spot. Cross-examination was confined to the possession of Charabari in question and all the suggestions given by the defence have been denied. The contradictions sought to he proved with regard to the evidence of assault are also not supported by P.W. 12, Basir Uddin Laskar 12. P.W. 12 clarified that though P.W. 1 did not mention specifically that Binoy and Ashu were armed with spear, but she stated before him that Ashu, Sujit and Mintu entered their homestead being armed with spear and Jatta. That apart, the I.O. further stated that this witness told him that accused persons have injured her husband with spear, jatta, dao etc. The contradictions sought to he proved is very insignificant. Therefore, her evidence virtually goes unassailed. The only thing that transpires in her statement in cross-examination is that the parties were at daggers drawn in view of the dispute relating to the possession of Charabari. 18. P.W. 2, Ms. Nilima Rani Das was also subjected to lengthy cross-examination. But nothing could be elicited out of this witness to show that her evidence against the accused persons in assaulting her father is not worthy of credence. Though she did not state before the I.O. that Binoy entered her homestead with spear, but she stated that accused persons had inflicted injuries with weapons. The contradictions with regard to the evidence of P.W. 3 that she did not specifically named Binoy having a spear does not mean that Binoy was not there and did not take part in assaulting Debendra and others, as alleged by all the witnesses. The contradictions with regard to the evidence of P.W. 3 that she did not specifically named Binoy having a spear does not mean that Binoy was not there and did not take part in assaulting Debendra and others, as alleged by all the witnesses. The contradictions with regard to P.W. 4, Sibani relates to her omission to tell the I.O. that she had gone to fetch water from the pond inside the homestead of Debendra Das. The further contradictions that she did not tell specifically that Binoy Nag had injured Purnima Das with spear stands dispelled as because the I.O. has evinced that this witness stated that Binoy Nag, Nripesh Das, Ashu, Sujit, Anil Nag and Smriti Bala Das being armed with Jatta, lathi and dao etc. assaulted Debendra Das and also injured Purnima with spear. The evidence of a witness cannot be a catalogue of every minute details. When six/seven persons armed with weapons let loose as reign of terror and assault a number of persons indiscriminately with spear, lathi, dao etc. it may not be possible for any one under such attack to take note of each and every minute details. Therefore, the evidence of the witnesses named above has to be treated as genuine and reliable. P.W. 5, Shri Nibaran Das also evinced that accused persons had assaulted Debendra and particularly, Nripesh and Binoy assaulted Purnima on her chest and belly, and Ashu Das assaulted Nilima on her belly with spear. In our considered opinion, the evidence on record when read with the evidence of the three doctors who have proved multiple injuries on the persons of the deceased as well as the witnesses establish beyond all shadow of doubt that the prosecution has been able to bring home the charges levelled against the Appellants. 19. The evidence of D.W.s. 1 and 2, Sri Niran Dey and Dr. Swapon Kr. Sen are of no significance and cannot have any adverse affect on the overwhelming evidence led by the prosecution. D.W. 1 stated that he had seen accused Binoy harvesting paddy from 10 A.M. to 3.30 P.M. His lone statement is no match to the evidence of 5 P.W.s. who had emphatically made incriminating statement against accused Binoy and gave in details the role-played by him. He was undoubtedly a member of the unlawful assembly which caused the death of Debendra and injuries to a number of persons. He was undoubtedly a member of the unlawful assembly which caused the death of Debendra and injuries to a number of persons. D.W. 2 Dr. Swapon Kr. Sen examined Smriti Bala Das and found some injuries on her person. Similarly, he also found one incised injury and tenderness on the person of accused Ashulal Das. But the learned Sessions Judge acquitted the members of the prosecution party in the counter case i.e. Sessions Case No. 84/1999. The learned Sessions Judge found that the case was not proved beyond reasonable doubt. 20. Mr. Choudhury, learned senior counsel for the Appellants submitted that there was no blood mark in the courtyard where the alleged offence took place. He also relied upon a decision of the Hon'ble Supreme Court in the case of Bir Singh and Anr. v. State of U.P. and Ors., reported in AIR 1978 SC 59 . P.W. 12, Basir Uddin Laskar, I.O. in his evidence, stated that no blood stain was found in the courtyard where the dead body was lying. From the sketch map (Ext. 10) it is evident that the bamboo grove (Charibari) is situated in the southern side of the place of occurrence, at a distance of 150/200 metres and this piece of land is adjacent to the eastern boundary of the house of the deceased. The sketch map further shows that the dead body was found inside the courtyard of the deceased which is adjacent to the bamboo grove. Absence of trace of blood on the spot where the dead body was actually lying cannot be a ground for disbelieving the evidence of the prosecution witnesses. In a mele, where the assault was preceded by chase by a group of armed persons, it would be difficult for a witness to exactly locate the spot where the assault was made. That Debendra Das died is not in dispute and the evidence of the witnesses against the Appellants are so strong, particularly in view of the medical evidence, that no man of reasonable prudence will have a view other than that of the learned Sessions Judge. Absence of blood marks on the place where the dead body was lying cannot wither away the strong and overwhelming prosecution evidence available in this case. 21. The gamut of the entire occurrence from bamboo grove to the homestead was ghastly. Absence of blood marks on the place where the dead body was lying cannot wither away the strong and overwhelming prosecution evidence available in this case. 21. The gamut of the entire occurrence from bamboo grove to the homestead was ghastly. The Appellants indulged in indiscriminate act of assault on each and every one. The deceased Debendra had only raised protest against felling of bamboos by Nripesh and his party. This enraged Nripesh so much that he along with his accomplices took the life of Debendra and caused severe injuries to the witnesses. The assault by deadly weapons on unarmed persons is indicative of the intention they had in their mind to eliminate Debendra, or atleast to cause such injuries as are likely to cause death in ordinary course. 22. For discussion and the reasons above, we are of the opinion that there is no merit in both the appeals, which deserve to be dismissed. Appeal dismissed.