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2008 DIGILAW 15 (GAU)

Bikash Borah and Ors. v. State of Assam

2008-01-04

AFTAB H.SAIKIA, P.K.MUSAHARY

body2008
P.K. Musahary, J:- 1. Heard Mr. R.P. Kakoti, learned counsel for the appellants and Mr. B.B. Gogoi, learned Additional Public Prosecutor, for the respondent-State. 2. The prosecution story, as revealed from the FIR and records, is that on the night of 14.7.2001, the deceased Jugeswar Kurmi son of Sri Sukram Kurmi, informant, went to the house of Lakhiram Kurmi of Khagorijan Tea Estate. After having night meal, Jugeswar Kurmi returned from the house of Lakhiram Kurmi at about 8.30 P.M. On the way, the night Chowkidars, the accused/appellants of No. 10 Section of the said tea estate assaulted Sri Jugeswar Kurmi causing serious injuries to him. He was brought before the Sardar, PW-5, Lakhiram Kurmi, where he was given water and thereafter the accused/appellants took the injured Jugeswar on a bicycle to the garden factory. They told the Assistant Garden Manager that they apprehended the injured person as a thief from the tea garden. The said Jugeswar Kurmi succumbed to his injuries. A crime being Sapekhati P.S. Case No. 33/2001 under section 302/34, IPC was registered on the basis of Ejahar lodged by the father of the deceased, Sri Sukram Kurmi, PW-1. Another FIR was also lodged on 22.07.2001 by one Cheniram Kurmi, resident of Assam Tea Tribes Students' Association, Sonari Branch, which was also registered as Sapekhati P.S. Case No. 35/2001 under section 304(AV 34, IPC against the Assistant Branch Manager of the Tea Estate, Sri Bhagaban Singh and Pharmacist, Md. Sahadat Ali Ahmed. In both the cases charge sheets were laid and the cases were committed to the learned Session Judge, Eibsagar for trial. Both the cases were taken up for trial by the learned Additional Sessions Judge, Sibsagar. All the accused persons pleaded not guilty and claimed to stand trial but they declined to adduce evidence. 3. Mr. R.P. Kakoti, learned counsel for the appellants, recapitulating the prosecution case, submitted that the accused/appellants being night chowkidars had been on duty in the night of occurrence. They were engaged by the Management of the tea estate and there is no dispute on the fact that they were night chowkidars and their duty was to prevent theft inside the garden. R.P. Kakoti, learned counsel for the appellants, recapitulating the prosecution case, submitted that the accused/appellants being night chowkidars had been on duty in the night of occurrence. They were engaged by the Management of the tea estate and there is no dispute on the fact that they were night chowkidars and their duty was to prevent theft inside the garden. The deceased Jugeswar Kurmi was not known to the appellants and at least there is no evidence that they knew the deceased since before and they had any enmity with him for taking any revenge on him to the extent of murdering him. The evidence on record is that after taking night meal in the house of P W-5, Lakhiram Kurmi, the deceased left the house of PW-5 at about 8.30 P.M. stating that he would be going to the house of his maternal uncles and he might have entered the tea garden as it had a better road then the outside road. The deceased, as per evidence of PW-5, entered the tea garden in the night. The accused/appellants had no knowledge about the entry of the deceased in the tea estate and there being no electric light as per evidence, in the garden, the accused took him for a thief and caught him after a chase and sustained injuries due to assault by lathi. They brought the deceased in injured condition near the house of PW-5, the garden Sardar, where he was offered water and taken in a bicycle, owned by the son of PW-5, to the factory of the tea garden and informed the Assistant Manager of Khagorijan Tea Estate, Sri Bhagaban Singh. It was, as submitted by Mr. Kakoti, the duty of the said Assistant Manager to take necessary steps to give medical treatment to the injured person because the deceased survived for more than two hours from the time of the incident that took place at about 10.00 P.M. and died at about 1.00 A.M. There was, therefore, a fair chance of survival, had the deceased been removed to hospital immediately and given appropriate treatment. The accused/appellants did not run away rather they resumed their duties after producing the injured person before the employer. 4. The conduct of the accused/appellants as submitted by Mr. The accused/appellants did not run away rather they resumed their duties after producing the injured person before the employer. 4. The conduct of the accused/appellants as submitted by Mr. Kakoti, shows that, they had no intention to kill or cause such a degree of physical injury which is sufficient in ordinary course to cause death of a person and there being no claim of mens rea, the accused should not have been convicted under section 302, IPC. Further, it is submitted, by Mr. Kakoti that there was no common intention to kill the deceased and the deceased having failed to prove as to which of the strike on the accused caused serious injuries on the deceased, the learned trial court erred in law in convicting the accused/appellants under section 3027 34, IPC. 5. It is contented by Mr. Kakoti that PW-5, cannot be treated as an eye witness in a real sense as has been done so by the learned trial court inasmuch as this witness did not see the person who actually gave lathi blow on the deceased. PW-5 saw the accused/appellants only when they brought the deceased near his house and he himself presumed that the accused were the perpetrators. The conviction has been ordered mainly on the basis of the evidence of PW-5, treating him wrongly as an eye witness, which, he, intact, has not seen and the conviction as ordered in the impugned Judgment and Order on the basis of evidence of such witness is not sustainable under the law. The other basis of conviction in this case is the circumstantial evidence which, as submitted by the learned counsel Mr. Kakoti, are not so strong forming a complete chain sufficient to draw a definite conclusion of guilt against the accused as offenders and the prosecution has, therefore, failed to prove its case beyond reasonable doubt. 6. Furthermore, Mr. The other basis of conviction in this case is the circumstantial evidence which, as submitted by the learned counsel Mr. Kakoti, are not so strong forming a complete chain sufficient to draw a definite conclusion of guilt against the accused as offenders and the prosecution has, therefore, failed to prove its case beyond reasonable doubt. 6. Furthermore, Mr. Kakoti, learned counsel for the appellants, submitted that even assuming, but not admitting, that the accused/ appellants have been found to be perpetrators, offence under section 302, IPC is not attracted in this case for their conviction because of the conduct shown by them in producing the deceased in injured condition before the Sardar PW-5, and also before the Assistant Manager for treatment etc., and the accused happened to assault the deceased while on duty taking him for a thief and there was no mens rea or intention or motive to kill him. Under such facts and circumstances, the conviction under section 302 may be converted to section 304, Part II, IPC. In support of his submission the learned counsel has cited the case of Chandan Gogol v. State of Assam, 2005 (I) GLT39, in which conversion was allowed by this Court placing reliance on a decision of the Apex Court in the case of Sardul Singh v. State of Haryana, AIR 2002 SC 3462 . 7. We are not in agreement with the learned trial court to accept the PW-5 as an eye witness to the occurrence i.e. beating of the accused as he himself clearly said in his cross examination - "I did not see the accused persons beating the deceased.". However his statement to the effect that while the dogs started barking at about 10.30. P.M., he went out and after going a little distance heard the sounds of chowkidars as if they were chasing someone and within moments heard sounds of beating someone and later from a distance of about 300 cubits he enquired from the chowkidars and saw one person lying on the road and he brought water and offered to the deceased as requested by the chowkidars. His further statement to the effect that he saw the deceased in the torch light of the accused and could identify the injured person as Jugeswar Kurmi who, as told by the accused, was stealing tea bushes, and therefore, took the injured person to the factory of the garden on the bicycle of his son. The above statements have remained unshattered in the cross examination. The natural presumption is that the accused caught hold the deceased as a thief inside the garden and assaulted him causing serious injuries and he was brought before the PW-5, Sardar, in such injured condition. There is no plea that the deceased was assaulted by some others and the accused, finding him in injured condition inside the garden, brought the deceased before the PW-5. In the cross-examination no suggestion was also put by the defence in this regard. This leads to an invariable conclusion that the perpetrators are none but the accused persons themselves. 8. Going through the impugned Judgment and Order, we find that the learned trial court did not completely rely on evidence of PW-5 only for conviction of the accused. The learned trial court has put reliance basically on the circumstantial evidence. It has made elaborate discussion on the mitigating circumstances brought forth by the prosecution and they contain in Para 35 of the Judgment and Order, which are reproduced below : "(1) Jugeswar Kurmi visited the house of Lakhiram Kurmi (PW-5) on the night and after having the night meal he left his house at about 8.30. P.M. (2) Lakhiram Kurmi heard that dogs were barking just after departure of Jugeswar Kurmi from his house. (3) Lakhiram heard the sound that the chowkidars are chasing somebody. (4) Lakhiram heard the sound of beating someone by the chowkidars. (5) The chowkidars asked Lakhiram to bring some water for the injured lying on the road inside the garden. (6) In the light of torch light of the accused persons Lakhiram identified Jugeswar. (7) Injured Jugeswar was carried by the accused persons on the carrier of the bicycle belonged to Jiten to the factory of Khagorijan Tea Estate,with his two hand tied up with rope. (8) Jugeswar was lying dead in-front of the garden factory. (9) A lathi was recovered and seized from the house of accused Dipankar by the Investigating Officer." 9. (7) Injured Jugeswar was carried by the accused persons on the carrier of the bicycle belonged to Jiten to the factory of Khagorijan Tea Estate,with his two hand tied up with rope. (8) Jugeswar was lying dead in-front of the garden factory. (9) A lathi was recovered and seized from the house of accused Dipankar by the Investigating Officer." 9. The settled law is that the offences, if no ocular evidence is available, can be proved by circumstantial evidence. The law provides that the principal fact or factum probandum may be proved indirectly by means of certain inferences drawn from factum probans, i.e., evidentiary fact. In this case factum probandum (proved fact) is the apprehension of the deceased by the accused night chowkidars inside the garden in the night. The issue is who has/have assaulted or killed the deceased. The incriminating circumstance is that the accused chased, caught and brought the deceased before the PW-5, Sardar, and then taken on a bicycle to the Assistant Manager of the garden in a serious condition who was later found lying dead in-front of the garden factory. The circumstances described, in more details as quoted above, in our opinion, are consistent and complete in nature and incapable of explanation of any other hypothesis than that of the guilt of the accused. The law of principle of conviction on circumstantial evidence has been re-stated in the case of Thrimukh Maruti Krikan v. State of Maharashtra, (2006) 10 SCC 681 and we feel it necessary to quote para 12 of the said Judgment as below; "12. In the case in hand, there is no eye witness of the occurrence and the case of the prosecution rest oil circumstantial evidence. The normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused, that is circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and they should be incapable of explanation on any hypothesis other than that of a guilt of the accused and inconsistent with their innocence." 10. We have given our anxious thought on the question of conversion of conviction from one under section 302, IPC to section 304, Part II relying on the cited case ofChandan Gogoi (supra). That was a case of simple injury received from a single strike on the head of the victim causing his death. No attempt was made by the accused to make any further assault even though he was not prevented from doing so by the persons present at the place of occurrence and on appreciation of evidence it was held that the act of the accused did not constitute the offence of culpable homicide amounting to murder. But we find quite different situation in the present case. The accused, four night chowkidars caught the unarmed lone person (the deceased) as a thief and without verifying his identity beat him causing serious injuries and produced him before the Sardar and the Management of the Tea Estate and thereby they exceeded the normal limit of dealing with an apprehended thief and also took the law in their hands. The post mortem report mentions about several wounds found on the dead body of the deceased. They are : "(1) Haemoatoma over left side of head with fracture of frontal bone and separations of front parietal and temporal structure. (2) Bruise over left lower laterachest wall with fracture of 10th rib. (3) Abrasion over left chin measuring 1 cm. (4) Two abrasions over left lateral abdominal wall above illiac crest, each 1 cm." 11. In the opinion of the Doctor, PW-8, injury Nos. 1 and 2 both are individually sufficient to cause death in ordinary course of nature. The cause of death was due to shock and hemorrhage due to injuries sustained by the deceased caused by blunt weapon. In his cross examination the said Doctor deposed that the patient with above injuries can survive half an hour to one hour and beyond that the possibility of survival is minimal. From the evidence on record, there cannot be any doubt that the accused dealt with lathi strike on his vital parts namely the head and chest which was fatal enough to kill him. The natural presumption is that the deceased being without any arms in his hand, did not and obviously, could not challenge the said four night chowkidars armed with lathis. The natural presumption is that the deceased being without any arms in his hand, did not and obviously, could not challenge the said four night chowkidars armed with lathis. The accused apprehending the deceased could have restrained them selves from giving fatal lathi strike on vital parts of the body but they have not done so. The manner in which the accused had resorted to extreme action in dealing severe lathi strike on the person of the deceased causing serious injuries demonstrates nothing but commission of culpable homicide amounting to murder punishable under section 302, IPC and calls for no alterations or conversion to section 304, Part II, IPC. Less said is better about the submissions made by the learned counsel for the appellants on the point of common intention. The accused were on joint duty, i.e., what they called patrolling against theft in the tea estate in the night. It is obvious that with their common intention they apprehended the alleged thief, the deceased and killed him by lathi blows. It is, under such circumstances, not necessary to find out who actually dealt the fatal strike. It is, in our opinion, a clear case attracting section 34, IPC. 12. We fail to persuade ourselves to accept the submissions made by the learned counsel for the appellants for reduction/alteration of conviction from section 302 to 304, Part II, IPC, far less for setting aside the conviction under section 302/34, IPC as recorded by the learned trial court in the impugned Judgment and Order. 13. Considering the entire facts and circumstances, evidence on record and submission of the learned counsel representing the parties we find no infirmity in the impugned Judgment and Order warranting inferences by this court. Accordingly we uphold and affirm the Judgment and Order dated 30.10.2004, pfssed by the learned trial court in Sessions Case No. 27(SC)/2003. 14. Appeal stands dismissed. 15. The lower court record may be sent down.