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2009 DIGILAW 227 (GAU)

Satyendra Das v. State of Assam

2009-03-31

BIPLAB KUMAR SHARMA, RANJAN GOGOI

body2009
JUDGMENT Ranjan Gogoi, J. 1. This appeal by the seven Appellants is against the judgment and order dated 24.6.2003 passed by the learned Sessions Judge, Barpeta in Sessions Case No. 53/2000. By the aforesaid order, the accused-Appellants while being acquitted of the charge under Sections 323/365/34 IPC, have been convicted under Sections 302/34 IPC. On such conviction, each of the accused-Appellants have been sentenced to undergo imprisonment for life and to pay a fine of Rs. 3000/- each, in default, to undergo rigorous imprisonment for three months more. 2. The short case of the prosecution is that one Smt. Mira Bala Devi (PW1) had lodged a FIR before the Officer-in-Charge, Barpeta Police Station on 29.4.95 at about 10.05 a.m. alleging that the accused-Appellants had caused the death of her son, Banjit Das, and further that the accused-Appellants had abducted one Pranjit Das and had caused injuries to the said person. 3. On receipt of the aforesaid FIR, Barpeta P.S. Case No. 271/95 under Sections 147/364/325/302 IPC was registered. In the course of the investigation, the police visited the place of occurrence; drew up a sketch map of the same and recorded the statements of a large number of persons under Section 161 Code of Criminal Procedure. The police had also seized a blood stained shirt and a knife after preparing the seizure list which was signed by independent witnesses. Inquest was held on the dead body of deceased Banjit Das and the same was also sent for post mortem examination to the Barpeta Civil Hospital. On receipt of the report of the post mortem examination and upon completion of the investigation, the police submitted chargesheet against all the accused-Appellants under Sections 147/365/325/302 IPC. 4. The case being exclusively triable by the Court of Sessions, the same was committed to the Court of Sessions at Barpeta. The learned Sessions Judge framed charge against all the accused-Appellants under Sections 323/365/302/34 IPC to which the accused-Appellants pleaded not guilty and claimed to be tried. In the course of trial, six witnesses were examined by the prosecution including the Medical Officer as well as the Investigating Officer of the case. Though the accused-Appellants initially were inclined to adduce evidence, no such evidence was adduced. The accused-Appellants were, however, examined under Section 313 Code of Criminal Procedure. In the course of trial, six witnesses were examined by the prosecution including the Medical Officer as well as the Investigating Officer of the case. Though the accused-Appellants initially were inclined to adduce evidence, no such evidence was adduced. The accused-Appellants were, however, examined under Section 313 Code of Criminal Procedure. At the conclusion of the trial, the learned Sessions Judge while acquitting the accused-Appellants from the charge under Sections323/365/34 IPC, convicted them of the charge under Section 302/34 IPC and sentenced each of the accused-Appellants as aforesaid. Aggrieved by the aforesaid conviction and sentence, this appeal has been filed. 5. PW 1 Dr. Mrs. Bharati Bhattacharjee is the doctor who performed the post mortem examination. PW 1 proved the post mortem report which was exhibited as Exhibit-1 in the case. Deposing from the said report, PW 1 had stated that in the course of the post mortem examination, the following injuries were found on the body of the deceased: Average built, male body, 19 yrs of age: Blood & froth were present. Rigor mortis present. One stab injury present over the right of the chest. 4" straight above the nipple at the level of interpostal space. Size - 1" x 1/2" upto the chest. Blood is present over the wound. Right lung lacerated, bleeding present. Flora right lacerated. Stomach contain undigested food particles and water. Injury are ante mortem in nature. Opinion: Death due to haemorrhage and shock. 6. PW 2 Smt. Mira Bala Das is the first informant and the mother of the deceased. In her deposition, PW 2 had stated that on the date of the occurrence the accused-Appellant Jone Das had called her nephew Pranjit Das from his home. This was in the evening at about 6.30 p.m. Thereafter, one of her tenants i.e. Binode Rajak came and informed her that Pranjit had been taken by the accused-Appellants and that he was being assaulted by them. On coming to know of the aforesaid incident, the family members of Pranjit along with PW 3 and her deceased son Banjit went out looking for Pranjit. PW 2 has deposed that Pranjit was recovered by the search party from a place near the Patbausi High School. While returning with Pranjit her son Banjit was ahead of them. As they were walking, accused Satyen suddenly appeared on the scene and stabbed deceased Banjit on the chest. PW 2 has deposed that Pranjit was recovered by the search party from a place near the Patbausi High School. While returning with Pranjit her son Banjit was ahead of them. As they were walking, accused Satyen suddenly appeared on the scene and stabbed deceased Banjit on the chest. As a result, Banjit fell down. According to this witness, on a commotion being raised, the local people arrived and carried Banjit away, whereafter, he was taken to the Civil Hospital. PW 2 has further deposed that she could come to know later that Banjit had died. PW 2 has also deposed that the other accused-Appellants were close by when accused Satyen had stabbed Banjit. 7. PW 3 Smt. Sabita Das is the mother of Pranjit who has deposed in a more or less similar manner. PW 4 is Pranjit Das whose evidence will not be very material in view of the fact that the accused-Appellants have been acquitted of the charge under Sections 323/365/34 IPC and in the present case, the Court would only be concerned with the charge against the accused-Appellants under Sections 302/34 IPC. 8. While the evidence of PW 5 Sri Tapan Ch. Das would also not be material for the present case, the details of the evidence of Sri Dhani Ram Borah, the Investigating Officer of the case also need not be recited as the core facts deposed to by the said witness are not in dispute. At this stage, however, what would be relevant to be noticed is that from the evidence of PW 4 Pranjit Das it transpires that the houses of Pranjit and Banjit (since deceased) were in the same courtyard and that the deceased Banjit was a cousin of PW 4 Pranjit Das. 9. The evidence of the prosecution witnesses as narrated above clearly show that after Pranjit was recovered from the custody of the accused-Appellants, the search party consisting of PW 2, PW 3, deceased Banjit and Ors. were returning along with Pranjit. On the way, at a certain point of time accused-Appellant Satyen suddenly appeared on the scene and stabbed Banjit on the chest causing injuries to him. The evidence of PW 1 i.e. Dr. Mrs. Bharati Bhattacharjee has confirmed stall injuries in the region of the chest of the deceased. were returning along with Pranjit. On the way, at a certain point of time accused-Appellant Satyen suddenly appeared on the scene and stabbed Banjit on the chest causing injuries to him. The evidence of PW 1 i.e. Dr. Mrs. Bharati Bhattacharjee has confirmed stall injuries in the region of the chest of the deceased. The blood stained shirt worn by the deceased along with a dagger were also seized by the police in the course of the investigation. There is hardly any challenge to the aforesaid facts. However, what cannot escape the Court's notice is the fact that in so far as the stab injury caused on the deceased leading to his death is concerned, there is hardly any evidence tendered by the prosecution witnesses showing involvement of the accused-Appellants other than accused Satyen which could reasonably give rise to an interference that all the accused-Appellants can be attributed with the common intention to cause the death of deceased Banjit. 10. Common intention, as visualized by Section 34 of the Indian Penal Code, can be, at times, a matter of direct evidence but on most occasions it would be a matter of inference to be drawn by the Court from the surrounding facts and circumstances. Common intention need not be pre-meditated. It could very well develop at the spur of the moment or in the place of occurrence itself. However, to attract Section 34 of the IPC and to attribute culpability of the accuseds on that basis, the prosecution has to lay necessary materials from which an inference can be drawn by the Court that the accused had the common intention to commit the offence in question. In the present case, the prosecution witnesses had deposed that accused Jone Das had called Pranjit out of his house and all the accuseds had taken him away together and, thereafter, had assaulted Pranjit. The learned Trial Court upon consideration of the said evidence, however, acquitted the accused-Appellants from the charge under Sections 323/365/34 IPC. The order of acquittal passed by the learned Trial Court and the findings in support thereof have not been challenged by the State or by any aggrieved party. In such circumstances, the said acquittal and the findings on which the same has been based have attained finality in law. 11. The order of acquittal passed by the learned Trial Court and the findings in support thereof have not been challenged by the State or by any aggrieved party. In such circumstances, the said acquittal and the findings on which the same has been based have attained finality in law. 11. In so far the present case is concerned, the determination that the Court is required to make is whether in view of the evidence tendered by the prosecution witnesses, the accused-Appellants can be attributed with any common intention to cause the death of Banjit as a result of the stab injury inflicted on the deceased by accused Satyen. In this regard the prosecution evidence is to the effect that while the search party was returning with Pranjit, accused-Appellant Satyen suddenly appeared on the scene and dealt a stab injury on the chest of the deceased. Though PW 2 had stated that the other accused-Appellants were close by, the mere presence of the other accused-Appellants in the vicinity of the place of occurrence, by itself, cannot give rise to any common intention and some more positive evidence in this regard would be required. The appearance of accused Satyen on the scene and the blow given by him to the deceased with a dagger, in the absence of any further evidence showing the involvement of the other accused-Appellants, cannot be stretched to make the other accused-Appellants culpable for the offence of murder by virtue of Section 34 of the IPC. 12. In the aforesaid facts and circumstances and having regard to the evidence on record, we are of the view that the conviction of the accused-Appellants other than Satyen for the offence of murder is not sustainable in law. We, therefore, set aside the aforesaid conviction of the accused-Appellants Arup Das, Kandarpa Das, Kishen Das, Dhananjoy Das, Jun Das and Meghnath Das and also interfere with the punishment imposed. 13. Coming to the culpability of the accused-Appellant Satyen @ Satyendra Das, we have taken note of the fact that the said accused, according to the prosecution witnesses, suddenly appeared on the scene and gave one single blow to the deceased with a dagger in the region of the chest which eventually caused his death. 13. Coming to the culpability of the accused-Appellant Satyen @ Satyendra Das, we have taken note of the fact that the said accused, according to the prosecution witnesses, suddenly appeared on the scene and gave one single blow to the deceased with a dagger in the region of the chest which eventually caused his death. The sudden appearance of the accused Satyen at the place and the single blow dealt with by him, which is affirmed by the medical evidence of PW 1, in our considered view, is not enough to bring the culpability of accused Satyen within the four corners of Section 300IPC warranting punishment under Section 302 IPC. Rather, we are of the view that on the basis of the evidence on record, at best, the accused Satyen should be held liable for an act done with the knowledge that it is likely to cause death, which would attract the provisions of the Second Part of Section 304 IPC. We, accordingly, deem it appropriate to alter the conviction of the accused-Appellant Satyendra Das from Section 302 to Section 304, Part-II of the Indian Penal Code. 14. The maximum punishment imposable under Section 304, Part-II IPC is rigorous imprisonment for a term which may extend to ten years along with fine. There is no dispute that the accused-Appellant Satyendra Das has been in custody from 24.6.2003. We are told at the Bar that during the investigation of the case, the accused Satyendra Das may also have been in custody for a period of about three months. Having regard to the facts and circumstances of the case, we are of the view that the appropriate sentence in so far as accused Satyendra Das is concerned, would be rigorous imprisonment for period of detention already undergone by the said accused. We, therefore, order accordingly. The accused-Appellant Satyendra Das be released from the custody forthwith. The sentence of fine imposed on the accused-Appellant is maintained. 15. In the result, the appeal is allowed to the extent indicated above. Appeal allowed