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2008 DIGILAW 565 (GAU)

Promod Ch. Roy v. State of Assam

2008-08-05

AFTAB H.SAIKIA, HRISHIKESH ROY

body2008
JUDGMENT Aftab H. Saikia, J. 1. Heard Mr. A. Choudhury, learned Counsel for the Appellants as well as Mr. Z. Kamar, learned PP, Assam. 2. The appeal has been directed against the judgment and order dated 30.5.2002 passed by the learned Sessions Judge, Goal-para, in Sessions Case No. 55/99 whereby all the seven Appellants were found guilty under Sections 147/148/149/302, IPC and all of them were accordingly conviction under those sections and sentenced to undergo imprisonment for life and fine of Rs.1000/- each, in default, further RI for six months under Section 302, IPC read with Section 149, IPC. They were further sentenced to undergo RI for six months under Section 147, IPC and one year under Sections148, IPC. 3. The prosecution case, in brief, is that PW 1 (Bhabendra Chandra Rai) lodged an FIR with the Matia Police Station on 5.5.1998 alleging that at around 6 p.m. on 5.5.1998 when his younger brother Khagen Roy (hereinafter referred to as the "deceased") had been weeding in his 'Ahu' paddy cultivation field, all the accused Appellants being armed with deadly weapon like dao, lathi, spear and "khapor" etc. trespassed into his land and upon chasing him from the field caused grievous injuries on his person by stabbing and prodding at the bamboo groove in front of the deceased's house and as a result of such injuries he died on the spot. 4. After charge-sheet having been filed against all those Appellants, the trial was proceeded against all the Appellants. During trial, prosecution examined as many as seven witnesses out of which PW 1 (Bhabendra Chandra Rai), PW 2 (Smt. Bina Roy), PW 3 (Smt. Girija Kalita) and PW 5 (Bhubaneswar Roy) were projected as eye-witnesses. PW 6 (Dr. Abdul Kader) who conducted the postmortem examination on the dead body of the deceased and PW 7 (Sailen Roy), the Investigating Officer (for short the TO') were examined as official witnesses. On defence side three witnesses were examined namely, DW 1 (Hemkanta Patgiri), DW 2 (Dr. Nekibur Borbhuyan and DW 3 Dr. Brajen Das. 5. The learned Sessions Judge carefully scrutinized the testimony of all those witnesses including the five eye-witnesses and also upon hearing the learned Counsel for the parties by him impugned judgment and order convicted all the Appellants and sentenced them accordingly as already indicated above. 6. Mr. Nekibur Borbhuyan and DW 3 Dr. Brajen Das. 5. The learned Sessions Judge carefully scrutinized the testimony of all those witnesses including the five eye-witnesses and also upon hearing the learned Counsel for the parties by him impugned judgment and order convicted all the Appellants and sentenced them accordingly as already indicated above. 6. Mr. A. Choudhury, learned Counsel for the Appellants has forcefully contended that though prosecution examined as many as five persons as eye-witnesses, PW 1 was not actually an eye-witness. According to him PW 1 did not see the occurrence and at the time of his cross-examination he admitted that when the Appellants were chasing his brother (the deceased), he immediately went to the police station and under such circumstances his ocular evidence cannot be accepted. At the same time the learned Counsel has also submitted that all other four remaining so called eye-witnesses were in total agreement that all the seven Appellants were not armed with any other deadly weapon like dao, spear and "khapor" and they were having only lathi and by the said lathi the deceased was assaulted. Surprisingly, according to the learned Counsel, when as per evidence of those witnesses, all the seven Appellants dealt their lathi blows on a single person, medical evidence reflected only one fatal cut blow on the head of the deceased. 7. For the sake of convenience and also in order to refer to the injuries appeared to have been inflicted on the dead body of the deceased, the medical evidence may be noticed which is extracted as under: A 30 years old male dead body, rigor mortis present in all the extremities. A cut injury noted on the left frontal region above the eye. The left ear in severed in with crush border. Multiple slick marks noted on the back of his chest.... More details of injury or disease: 1. A cut injury with fracture of the left frontal bone which is about 4 cms x 2 cms x 2 cms in size.... The Doctor in his opinion stated that the death was due to the haemorrhage and shock due to head injury sustained which was ante mortem in nature and that the cut injury on the left frontal region could not be caused by falling on the stump of severed bamboo. The Doctor in his opinion stated that the death was due to the haemorrhage and shock due to head injury sustained which was ante mortem in nature and that the cut injury on the left frontal region could not be caused by falling on the stump of severed bamboo. The medical evidence above quoted would clearly go to show that the fatal blow might not have been the blow, administered by lathi. 8. It is also submitted on behalf of the Appellants that there was mutual 'marpit' (fight) amongst the accused persons and the deceased family as regards previous land dispute, which is evident from the evidence of PW 1 who in his cross emphatically stated that Tarini, one of the Appellants lodged two civil cases and some criminal cases against them regarding cutting of trees and assault. PW 1 also stated that he lodged a dacoity case against the accused persons i.e. the Appellants in which the accused had been acquitted by the Sessions Court. 9. In support of the submissions as regards 'mutual marpit', Mr. Choudhury, learned Counsel, has drawn our attention to the medical evidence of DW 2 and DW 3 as well as the testimony of PW 7 (IO). Both DW 2 and DW 3 being Doctors had examined the Appellants No. 1, 6 and 7 after the incident. In their deposition the Doctors stated that these three Appellants suffered the following injuries: DW 2 (Dr. Nekibur Rahman Barbhuyan) Injury as regards Krishna Mohan Roy 1. A 5" long curved lacerated wound over the scalp overlying the right perietal bone and exposing the bone itself underneath. Soft cloth in the wound and fresh blood oozes from the margin. 2. Another 1" long lacerated wound 1" away and within the concavity of the wound No. 1 and depth up to aponcuosis. Soft red cloth in the wound and fresh blood oozes from raw margin. The case was admitted to Surgical Ward and referred Surgeon. DW 3 (Dr. Brajen Das) Promod Ch. Roy (1) Lacerated injuries to the right thumb with avulsion of the nails. (2) Inquiry to the left ear with perforation of the ear drum and discharged. Injuries undergo healing with the treatment. Joydev Ch. Roy Multiple abrasion on the back thigh and both arms. These undergo complete healing with the treatment. From Court: I have not mentioned the "age of the injuries in my report. (2) Inquiry to the left ear with perforation of the ear drum and discharged. Injuries undergo healing with the treatment. Joydev Ch. Roy Multiple abrasion on the back thigh and both arms. These undergo complete healing with the treatment. From Court: I have not mentioned the "age of the injuries in my report. 10. According to Mr. Choudhury, learned Counsel representing the Appellants, in his deposition DW 1 Hemkanta Patgiri stated that on the day of occurrence along with the deceased's dead body Appellant Krishna Mohan was also brought in unconscious state to the police station in the police vehicle. In view of the evidence of PW 1, DW 2, DW 3 and PW 7 (IO) as mentioned above, it is submitted that the accused Appellants suffered serious injuries on their persons in the 'marpit' incident on 5.5.1998 with the deceased's group. 11. Our attention has also been drawn to the evidence of PW 1. In his cross-examination he stated that on the date of occurrence the Appellant No. 1 threatened him as he had cut twenty bamboos from Appellant's bamboo grove. All these incidents would apparently go to indicate that the mutual marpit occurred between the parties on the date of occurrence relating to the land dispute between them. 12. Per contra, Mr. Z. Kamar, learned PP has submitted that all the eye-witnesses i.e. PW 1, PW 2, PW 3, PW 4 and PW 5 in their corroborative evidence mentioned the names of the seven accused Appellants and their definite involvement and participation in the occurrence accordingly is beyond doubt and as such the prosecution successfully has proved its case beyond reasonable doubt and that being so, the learned Sessions Judge was absolutely correct and justified in convicting the Appellants and sentenced them accordingly. 13. We have given our anxious consideration to the extensive arguments so canvassed on behalf of the Appellants as well as the State. We have also meticulously scanned and analysed the testimony of the witnesses including those eye-witnesses as well as the witnesses examined by the defence. We have also made a close survey of the statements of the Appellants recorded under Section 313, Code of Criminal Procedure. 14. It is seen from the 313, Cr PC statements that all the Appellants had narrated that on the date of occurrence the deceased and his brother PW 1 attempted to assault them with lathi. We have also made a close survey of the statements of the Appellants recorded under Section 313, Code of Criminal Procedure. 14. It is seen from the 313, Cr PC statements that all the Appellants had narrated that on the date of occurrence the deceased and his brother PW 1 attempted to assault them with lathi. When they raised alarm the other Appellants asked them not to quarrel with. Then Appellant Nos. 4 and 7 came there. At that time the deceased dealt a stroke on the head of Appellant Krishna Mohan with a bamboo lathi and fell him down. Thereafter the deceased attempted to strike the Appellant No. 1 Promod Ch. Roy but he caught hold of the lathi and as a result a scuffle took place between them. 15. We have also gone through the injury reports on the Appellants namely, Appellant No. 1, Appellant No. 6 and Appellant No. 7 as well as the medical evidence of PW 6 (Doctor) who held autopsy on the dead body of the deceased. It is found from the evidence of PW 1, who lodged the FIR, all these seven Appellants were equipped with dao, spear, lathi and "khapor". But so far the testimony of PW 2, PW 3, PW 4 and PW 5 is concerned, it is seen that all these four witnesses, who were projected as eye-witnesses, categorically stated that assault was made by lathi by all the Appellants on the person of the deceased and they also categorically stated that no other weapon except lathi was used in the assault. 16. Considering the facts and circumstances of the case in its entirety and on a proper scanning of the above noted evidence as well as upon hearing the learned Counsels, we are constrained to hold that all the seven Appellants were involved in assaulting the deceased by using lathi which resulted into his death. It is also found that assault was the outcome of the mutual marpit which occurred between the Appellants and the family of the deceased, it is, therefore, held that the Appellants had no intention to kill the deceased though they had knowledge that the act was likely to cause death. 17. That being the position, according to us, it is not a case under Section 302, IPC. 17. That being the position, according to us, it is not a case under Section 302, IPC. But it would be more appropriate to hold the case to be covered within the purview of Section 304(II), IPC and we order accordingly. 18. Consequently the sentence of life imprisonment so imposed on the Appellants may not be justified and accordingly we modify the sentence of the Appellants to the period already undergo by them, as it is submitted on behalf of the Appellants that more than six years has already been spent in Jail by six Appellants and only the Appellant No. 7 (Krishna Mohan Roy), who was aged 70 years, has been granted bail. The bail bond of PW 7 stands discharged accordingly. 19. The Appellants be set at liberty forthwith if they are not required in any other case. 20. In the result, the appeal stands partly allowed to the extent of modification of conviction and sentence indicated above. 21. Send down, the LCRs immediately. Appeal allowed.