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2009 DIGILAW 832 (GAU)

Ashok Deb v. State of Assam

2009-11-26

HRISHIKESH ROY, RANJAN GOGOI

body2009
JUDGMENT Hrishikesh Roy, J. 1. Heard the Learned Counsel appearing for the appellants. Also heard the learned Public Prosecutor. 2. This appeal is filed to challenge the judgment and order dated 10.3.2005 in Sessions Case No. 4 of 2002 rendered by the Sessions Judge, Hailakandi, whereby the accused appellants have been convicted for an offence under Section 302/34 of the IPC and have been sentenced to imprisonment for life and a fine of Rs. 5000 each and in default, further imprisonment for 3 months. 3. The prosecution case, as unfolded by the FIR lodged by Anil Chandra Deb (PW1), is that on 5.5.2000 at about 11 A.M., the PW1 was informed by his cousin Saten Deb that the accused appellants in a body attacked the informant's elder brother Sunil Deb (the deceased) with dao, lenja, lathi and bow, while the deceased was coming down from the hill. Their persistent assault caused the death of the deceased. When the maternal uncle of the informant who was with the deceased (PW2) and sister (cousin) (CW1) started shouting, the informant's aunt rushed to the scene and all the aforesaid three persons were also assaulted by the accused persons. Then neighbours came and sent the injured to hospital. 4. On the basis of the information given by the PW1 Anil Deb, a G.D. Entry No. 67 dated 5.5.2000 was recorded in the Jamira police out post and the FIR was forwarded to the Katlicherra P.S. for registering a case and accordingly Katlicherra P.S. Case No. 67 of 2000 was registered on 6.5.2000. 5. The Investigating Officer (PW4) rushed to the P.O. and found the deceased lying dead on the ground. He conducted inquest and sent the body for post mortem examination. After investigation the police found sufficient evidence against the accused persons and filed charge sheet against them. 6. The first charge against the accused was under Section 148, IPC for being members of an unlawful assembly, who assembled with deadly weapons to commit the murder of the deceased. They were also charged under Section 302, IPC for committing the murder of Sunil Deb. 7. During the trial, 4 witnesses were presented from the side of the prosecution while defence produced 2 witnesses. The trial court examined two persons as court witness. 8. Before proceeding further it would now be appropriate to take note of the evidence on record. Prosecution witnesses 9. 7. During the trial, 4 witnesses were presented from the side of the prosecution while defence produced 2 witnesses. The trial court examined two persons as court witness. 8. Before proceeding further it would now be appropriate to take note of the evidence on record. Prosecution witnesses 9. PW1 is the informant Anil Deb who is the cousin brother of the deceased. He reached the place of occurrence after receiving information about the assault and he was told by his cousin Saten that the accused had murdered the deceased. He himself did not witness the occurrence. He testified to have lodged the FIR at about 1/1-30 P.M. in the police out post on the day of the incident on the basis of information given to him by his cousin Saten. The cross-examination of the PW1 elicited that in connection with the same incident, a counter case has been lodged against himself and few others with the allegation that this group has attacked accused appellant Pakhi Deb to dispossess him from his land and also assaulted another accused appellant Moina Deb, who came to assist Pakhi Deb. 10. PW2 is Jayanti Rani Deb, an aunt of the deceased. She stated that on the day of occurrence, her husband (CW2) and the deceased went together to the jungle to collect fire wood. She testified that she saw three accused appellants Anath, Alok and Pakhi assaulting the deceased with a lathi; then accused appellant Moina with a spear and his son with a lathi prevented the deceased from fleeing towards the PW2's house and the deceased was diverted and forced to flee towards North. Then the deceased fell down and gestured with his hands to stop the assault. But accused Alok assaulted Sunil with the reverse end of the lathi and cracked his skull and the brain substances of the deceased oozed out. Her husband tried to save the deceased but the accused Moina assaulted PW2's husband in the chest with a spear and Anath gave lathi blows. Then Mridul too assaulted her husband. When her daughter Suprava (CW2) tried to save her father, she was hit on the left fingers causing her bleeding injuries. PW2 was also given a dao blow on the right wrist. Then Mridul too assaulted her husband. When her daughter Suprava (CW2) tried to save her father, she was hit on the left fingers causing her bleeding injuries. PW2 was also given a dao blow on the right wrist. PW2 and her daughter brought PW2's injured husband (CW2) to their courtyard arid as the husband became senseless he was taken first to Katlicherra Hospital on a cot and then he was taken to Hailakandi Hospital. In her cross-examination PW2 testified that her husband (CW2) and deceased Sunil had gone for cutting fire wood in the nearby jungle; CW2 was going ahead and Sunil following behind a little later. Then she heard shouts from the hillock side. She witnessed the beating of Sunil by the accused and finally accused appellant Alok Deb had cracked open Sunil's skull by hitting him with the reverse end of the lathi. She also stated that she and her daughter Suprava (CW1) too were assaulted by the accused when they tried to stop them from beating the deceased and the husband of PW2. 11. PW3 is the Doctor who conducted post mortem examination on the body of the deceased on 6.5.2000, the next day after the incident. He noticed the following injuries on the body of the deceased. External injuries: - (1) One lacerated wound over right side of the partial region of the scalp. 6 cm x VA cm x bone depth with fracture of the partial bone-right side. (2) Three Nos. of lacerated wound over left parietal region of the scalp. (a) 5 cm x 11/2 cm x bone depth. (b) 61/2 cm x 2 cm x bone depth. (c) 4 cm x 1 cm x bone depth with fracture of partial bone (left side). All the injuries are fresh, grievous and caused by blunt object - (3) Carinum - Repture of the brain. According to the Doctor the death was the result of ante mortem injuries caused by blunt weapon. The Doctor also that the fracture injury on the scalp can be result of a single blow. 12. PW4 the, I.O., after receiving the information visited the place of occurrence and held inquest. He submitted charge sheet against all the accused persons showing accused appellant Mridul Deb to be an absconder as he could not be arrested till the time of filing of charge sheet. 12. PW4 the, I.O., after receiving the information visited the place of occurrence and held inquest. He submitted charge sheet against all the accused persons showing accused appellant Mridul Deb to be an absconder as he could not be arrested till the time of filing of charge sheet. The I.O., deposed that the PW2 Jayanti Rani Deb in her statement stated to the police that the deceased and her husband had gone to the jungle in the easterly direction of their house to cut fire wood with dao and when she saw her husband being beaten up, PW2 along with her daughter Suprava went to save him. Court witnesses 13. The first witness examined by the court was Suprava Dev, who is the daughter of CW2 Shasanka Deb and PW2 Jayanti Rani Deb. CW2 staled that her father and the deceased Sunil had gone for collecting fire wood from the jungle. Her father was going a little ahead of Sunil who was following. She testified that Sunil was attacked by the accused Anath, Ashok and Pakhi and when Sunil tried to flee towards the north, accused Moina and his son Mridul resisted and diverted him and Ashok cracked Sunil's head with the stroke of a lathi. She corroborates PW2 Jayanti Rani Deb in all matter particulars about the assault on the deceased and also the assault on Shasanka (CW1) and Jayanti Rani (PW2) and herself. In her cross-examination the witness stated that the deceased Sunil was seized by the accused as soon as he reached the hillock and that the accused had chased the deceased towards the northern side of the hillock. 14. CW2 testified that he went to the hillock to cut bamboo and fire wood and he was followed for the same purpose by the deceased Sunil. He stated that Ashok dealt a blow on the deceased with a lathi and called out his brothers. Sunil started running down hill but was obstructed by two of the accused and the deceased was made to flee towards the northern side. Then Sunil fell down in the land belonging to accused appellant Moina where he was grievously assaulted. The witness stated that he, his wife and daughter received injuries from the hands of the accused appellants. Sunil started running down hill but was obstructed by two of the accused and the deceased was made to flee towards the northern side. Then Sunil fell down in the land belonging to accused appellant Moina where he was grievously assaulted. The witness stated that he, his wife and daughter received injuries from the hands of the accused appellants. The witness supported the evidence of PW2 as well as CW1 in all material particulars about the assault made on the deceased and the injured witnesses. CW2 was all along with the deceased Sunil and he saw Sunil climbing the hillock (tilla) while the witness remained on the ground. He had seen the deceased being chased from the tilla to the place, about three plots away, where he was eventually killed. He saw that Sunil had been killed on the land of Bijurani. The witness stated that the hillock lands belong to one Lokendra Ch. Chakraborty and there was no dispute or litigation over the hillock land. He denied the suggestion that he was attacked while he tried to dispossess accused appellant No. 5 from his land. Defence witness 15. Of the two defence witnesses, DW1 was the Doctor who examined accused appellant Amal Deb. He opined that the injuries for which Amal Deb was treated were superficial in nature. 16. DW2 proved inter alia, the certified copy of the judgment rendered in G.R. Case No. 423/086 which was a cross case lodged with allegation of trespass on the lands of Bijurani and causing hurt to the informant Bijurani and her daughter Jyoti Rani Deb. In this case, on charges under Section 148/323, IPC, the learned trial court recorded an acquittal of the accused therein by holding that the informant Bijurani could not indicate the specific land under her possession and whether she was in actual possession of the claimed land. Discussion 17. We find from the evidence on record that there are three eye witnesses of the assault made by the accused appellants. They are Jayanti Rani Deb (PW2), her husband Shasanka Deb (CW2) and their daughter Suprava Deb (CW1). 17.1 CW2 Shasanka Deb went to the hillock to cut bamboo and firewood accompanied by the deceased who followed him. Discussion 17. We find from the evidence on record that there are three eye witnesses of the assault made by the accused appellants. They are Jayanti Rani Deb (PW2), her husband Shasanka Deb (CW2) and their daughter Suprava Deb (CW1). 17.1 CW2 Shasanka Deb went to the hillock to cut bamboo and firewood accompanied by the deceased who followed him. While Sunil climbed the hillock, CW2 saw him being assaulted by the accused and eventually after a chase when the deceased fell down, accused appellant No. 1 Ashok cracked open Sunil's head with a stroke of a lathi. 17.2 PW2 Jayanti Rani Deb also witnessed the assault and saw that when deceased was running towards the witness's house to save himself, two of the accused diverted him towards the northern direction by blocking his way with lathi and spear and eventually when the deceased fell down, he was hit on the head with the reverse end of the lathi, which broke open the skull of the deceased. This witness corroborated in all material particulars about the evidence given by PW2. The witness herself was subjected to assault by the accused persons. 17.3 CW2 similarly was also an eye witness to the occurrence and corroborated the evidence of the other two eye witnesses. She also testified that the accused in a group had assaulted the deceased, PW2, CW1 and CW2 and gave a vivid description of the incident, which tallied on all material particulars with the evidence given by the other two eye witnesses. 17.4 The evidence of the PW3 the Doctor who conducted the post mortem examination on the body of the deceased shows that the injuries recorded by him are consistent with the prosecution version of the incident. 17.5 The description of the place of occurrence is found in the evidence of the I.O., (PW4) who conducted the inquest. He testified about the hillock near the place where the body of the deceased was lying and he also indicated that PW2 had clearly described the occurrence, when he questioned her after the incident and there was no deviation in PW2's later testimony in the court. He testified about the hillock near the place where the body of the deceased was lying and he also indicated that PW2 had clearly described the occurrence, when he questioned her after the incident and there was no deviation in PW2's later testimony in the court. 17.6 The evidence of the witnesses also shows that the deceased went to collect firewood from the hillock where he was assaulted by the accused appellants and while trying to flee from the accused, he was felled and given the mortal blows on the land of one of the accused. Thus, no credible evidence. 18. The learned trial court also referred to the Cross Complaint (C.R. Case No. 382 of 2000) belatedly filed on 8.5.2000 by Abani Deb before the CJM, Hailakandi (Ext.-A), on the incident which took place on 5.5.2000, where the deceased Sunil is named as one of the accused and found that this complaint is nothing but a belated attempt to concoct a false story. 19. We find that the correct version of the sequence of events on the day of the occurrence as well as the place of occurrence, is given by PW2, CW1 and CW2 and their testimonies have remained consistent and could not be shaken by cross-examination. The testimonies of the said witnesses succinctly bring out the common intention of the accused appellants to cause death so as to bring in their joint liability under Section 34 of the Indian Penal Code. Although the deceased was found dead in the paddy field of an accused, there is nothing to suggest from the inquest report that assault started and ended in the spot where the body was found. Considering the circumstances, the assault, in our view, began near the hillock and after a chase, ended in the paddy field. Therefore, the version projected by the defence that the deceased died following a fight after a land possession attempt is not believable. 20. In view of the above discussion, we find sufficient evidence to sustain the conviction of the accused appellants. Appeal being devoid of merit, is accordingly dismissed. The judgment and order dated 10.3.2005 passed by the learned Sessions Judge, Hailakandi in Sessions Case No. 4 of 2002 is affirmed. 21. Send down the LCR. Appeal dismissed.