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2010 DIGILAW 366 (GAU)

Subodh Paul & Ors. v. State of Assam

2010-05-25

AMITAVA ROY, B.K.SHARMA

body2010
(ORAL) Amitava Roy, J. - Being aggrieved by their conviction under Sections 302/149 of Indian Penal Code (hereinafter for short IPC) and sentence to suffer imprisonment for life and also to pay a fine of Rs. 5,000/- each, in default, to undergo RI for further 6 (six) months, as recorded in the judgment and order dated 8.10.2009 by the learned Additional Sessions Judge (Fast Track Court), Cachar, Silchar, in Sessions Case No.22/2008, the appellants are in appeal. Incidentally though, alongwith them one Shri Pradip Ghosh was also made to stand trial by the decision impugned herein, he was acquitted of the aforementioned charges. 2. We have heard Mr. A.M. Mazumdar, learned senior counsel assisted by Mr. I.H.Laskar & Mrs. S. Seal, Advocates for the appellants, Mr. Z. Kamar, the learned PP, Assam and Mr.N. J. Das, Advocate, for the informant. 3. The trial from which the impugned decision emerges, is traceable to the FIR dated 17.7.2005, lodged by one Shri Sunil Baishnab with the Officer-in-Charge of Gumrah PIC alleging that at about 10 p.m. on 16.7.2005, the accused appellants out of previous grudge, came in a truck bearing No.AS-Ol-C/7419 from the side of Baleswar Stone Quarry and after slopping the same in front of his office at Digarkhan, assualted his brother Agni Baishnab. According to the informant, he was at that point of time sitting in his office along with Shri Lembadhar Baishnab and Debendra Baishnab and that seeing the assault, they came out raising alarm. On reaching the place of occurrence, they saw that the injured was lying on the ground. According to the informant, the accused appellants then boarded in the truck in which they had come and the accused appellant No. 1 drove it over the injured killing him on the spot. It was further alleged that at the time of fleeing, the truck hit a Maruti Car bearing registration No. AS-11 -A/4244, belonging to one Amar Chand Jain damaging it in the process. 4. On the basis of the said FIR, Katigorah PS Case No.239/05 was registered under Sections 302/427/34 of the IPC. Investigation followed and eventually a charge sheet was laid against the accused appellants and one Shri Pradip Ghosh. The learned trial Court framed charge against the accused persons under Sections 302/149 of the IPC,to which accused appellants pleaded "Not guilty" and claimed to be tried. 5. Investigation followed and eventually a charge sheet was laid against the accused appellants and one Shri Pradip Ghosh. The learned trial Court framed charge against the accused persons under Sections 302/149 of the IPC,to which accused appellants pleaded "Not guilty" and claimed to be tried. 5. During the trial, the prosecution examined 9(nine) witnesses including the Doctor who had performed the post mortem examination as well as 3 (three) Investigating Officers conducting the process at successive stages. The defence did not examine any witness. The statements of the accused appellants under Section 313 of the Cr.P.C were recorded and eventually by the judgment and order impugned herein, the appellants were convicted and sentence as herein above. 6. Before adverting to the rival submissions, it would be essential to make a brief survey of the evidence on record. 7. PW-1 Shri Sunil Baishnab, the informant stated on oath that on the date of occurrence at about 10/10-15 p.m., he was sitting in his office at Digarkhal at Silchar-Shillong Road and was talking to Debendra Baishnab and Lembadhar Baishnab. The Truck No. AS-01 -C/7419 came and stopped in front of his office and the accused appellants came down there from. He further stated that the accused appellant No. 1 then dealt a blow on the head of his brother Agni Baishnab with a iron lever of the truck while he (Agni) was standing nearby. The witness further stated that thereafter the accused appellant No.2 Alok Paul assaulted the injuried with a stone on his right ear. This was followed by assaults by accused appellant No.4 also by a stone. The witness stated that the accused appellants also assaulted the injured with stone boulders, for which he (Agni) fell on ground sustaining several injuries. The witness further deposed that as he raised alarm and rushed to the injured to save him, the accused appellant No. 1 boarded the truck and started it. As the other accused appellants also boarded the same, the accused appellant No. 1 drove the truck over the injured lying on the ground and thereafter dashed against a Maruti Car. parked by the side of the road and then escaped. According to the witness, he then went to the Gumrah Police Out Post and informed the police verbally about the incident. Thereafter, he came back to the place of occurrence with the police. parked by the side of the road and then escaped. According to the witness, he then went to the Gumrah Police Out Post and informed the police verbally about the incident. Thereafter, he came back to the place of occurrence with the police. The witness stated about the conduct of the inquest of the dead body and proved the inquest report Ext. 1. According to him, the dead body was taken to the Police Out Post and thereafter was forwarded to the Silchar Medical College and Hospital for post mortem examination. The witness affirmed the presence of electric light in his office at the relevant time. He also stated about electric light outside a sweetmeat shop near the place of occurrence. He proved the FlRExt.2 with his signature Ext. 2(1). He stated about the seizure of the truck and Maruti Car by the police. In cross examination, this witness stated about the presence of 10-15 shops at Digarkhal. near his office. He also confirmed about plying of many vehicles over the National Highway round the Clock. While stating that the occurrence lasted for about 21 3 minutes, he also disclosed about the presence of 10/15 persons at the place of occurrence. According to him he made verbal information to the police on the date of the occurrence. He lodged the FIR after the body was cremated on the next day. 8. He denied the suggestion of not having given verbal information to the Police Out Post in the night of the occurrence. He also denied the suggestion of not having stated to the police about the assult by the accused appellants Alok, Jhalak and others with stones. He denied the suggestion as well that the accused appellants did not drive the truck over his brother. The witness also denied the suggestion of the defence that at or about the time of the occurrence Shri Pradip Ghosh was coming that way driving the truck from Baleswar Quarry alongwith one Shri Sajal Namasudra (accused appellant No.3), Handiman of the vehicle and that when the vehicle reached near the office of the informant he alongwith his brother Agni and other relations tried to stop the same and in the process hackled the Driver. The witness denied that thereafter Agni (deceased) got up on the footstep of the truck and holding the collar of the driver, tried him to bring down and in the course of the scuffle, he (Agni) fell down under the truck sustaining injuries. He denied the suggestion that all the accused appellants had assaulted the deceased and that they were not in any way responsible for the death of his brother. 9. PW-2 Shri Debendra Baishnab also testified that the occurrence took place on 16.7.2005 at about 9.30/10 p.m., while he was talking to Sunil Baishnab (PW-1) alongwith one Shri Lembadhar Baishnab in his (informant's) office. He stated that suddenly a truck appeared and stopped in front of the office. The witness stated that at that time, the deceased was outside the office. According to him, the accused appellant No. 1 came down from the truck with a lever and along with accused appellants No. 2,3,4 & 5 started assaulting the deceased. He stated that the first assualt was made by the accused appellant No. 1 on the head of the deceased with the lever that he was carrying. This witness stated that the other accused appellants assaulted Agni with stones as a result, the injured fell on the road. As the witness alongwith PW-1 raised alarm, the accused appellant No. 1 took the wheels of the truck and after calling his brothers to get up on it and drove over the injured lying on the road, thus killing him instantly. He further stated that the truck at that point of time was loaded with stones and boulders. The witness proved the inquest report Ext. 1 with the signature Ext. 1 (2). He stated that the police had taken the dead body in the night of the occurrence to the Out-post. 10. In cross examination, this witness denied the suggestion about his omission to state before the Police that the accused appellant No. 1 had driven the truck over the injured. This witness too denied the suggestion of the defence with which the P W-1 was confronted. 11. The evidence of PW-3 Shri Lembadhar Baishnab is substantially in the same lines. He asserted his presence at the place of occurrence at 10/10-15 p.m. on 16.7.2005, talking to PW-1 in the office of the former. This witness too denied the suggestion of the defence with which the P W-1 was confronted. 11. The evidence of PW-3 Shri Lembadhar Baishnab is substantially in the same lines. He asserted his presence at the place of occurrence at 10/10-15 p.m. on 16.7.2005, talking to PW-1 in the office of the former. He similarly stated that the truck in which the accused appellants had been travelling, stopped near the office and that thereafter the accused appellant No.1 assaulted the deceased with a iron lever on the head. He also reiterated that the other brothers of the accused appellant No. 1 thereafter assualted the injured with boulders. According to this witness as well on hearing the alarm raised by P W-1 and PW-2 and himself, the accused appellants boarded the truck and drove away in a hurry crushing the injured under its wheels. This witness stated too that at that point of time, the accused appellant No. 1 had driven the truck. Presence of electric light at the place of occurrence was also affirmed by this witness who also stated that police had visited the place of occurrence in the night and had taken the dead body to the Police Out-post. In cross examination, this witness confirmed about the verbal information of the incident to the police before the FIR was lodged. The suggestion of the defence similar to the one as given to PW-1 and PW-2 was denied by the witness. 12. PW-4 Dr. Y.N. Singha, in course of his deposition stated to have detected the following injuries of the dead body at the time of its post mortem examination. "Injuries Injury No. l - Lacerated injury present in the scalp over occipital parietal (left) and frontal area of the scalp 15 x 7 x bone deep. 2. Fracture present in the occipital bone frontal bone and left parietal bone. The brain matter came out through the injury. 3. Multiple abrasion present over the face size varying from 4x3 cms to 2 x 1 cm. 4. Multiple abrasion present in the neck size varying from 5x4 cms to 2 x 1 cm (in front). 5. Multiple contusion present in both sides of the forearm size from 6x3 cms to 2 x 1 cms. 6. Lacerated injury present in between the little finger and ring finger extended upto wrist joint on the right side 7x2 cms. 7. Multiple abrasion present in the neck size varying from 5x4 cms to 2 x 1 cm (in front). 5. Multiple contusion present in both sides of the forearm size from 6x3 cms to 2 x 1 cms. 6. Lacerated injury present in between the little finger and ring finger extended upto wrist joint on the right side 7x2 cms. 7. Multiple abrasion present in the right hand size from 3x2 cms to 1 x .5 cm. 8. Lacerated injury present left in front size 15x3 cms x Bone Deep. 9. Fracture present in left femur, right femur, hip bone and both tibia fibula below the knee joint (both sides). 10. Lacerated injury present right leg below the knee joint upto foot (right) 18x6 cms x Bone deep. 11. Contusion present over the chest over the sternum 12x5 cms. 12. Multiple abrasion present left side of knee joint size from 3 x2cmsto 1 x.5cm." This witness opined that the death was due to shock and haemorrhage and coma (combined effect) resulting from the injuries, which were ante-mortem and caused by blunt force impact. This witness also stated that such injuries might be caused by vehicular accident. He proved the post mortem report Ext. 3 with his signature Ext. 3(1). 13. The evidence of PW 5 Shri Abdul Matin Borbhuiya and PW-6 Shri Dulal Baishnab is not of much significance as the former is the scribe of the FIR lodged and the PW-6 is the witness to the seizure of the Maruti Vehicle. 14. PW-7 Shri Kajal Kanti Das, PW-8 Shri Saradindhu Bhusan Dey and PW-9 Shri Amitava Bhattacherjee, are the Investigating Officers of the case. On a reading of their depositions, it appears that PW-9 had conducted the investigation at the final stages and had lodged the charge sheet. This witness in details deposed about the steps taken in course of the investigation. He proved the GD entry (Ext6) with his signature (Ext.6(1)) as well as sketch map prepared by him (Ext.7) and his signature Ext. 7( 1). The inquest report Ext. 1 was also proved by him. The seizure of the truck and Maruti vehicle too was proved. In cross examination, this witness discloses that the inquest was not possible in the night of the occurrence due to heavy down pour and darkness. 7( 1). The inquest report Ext. 1 was also proved by him. The seizure of the truck and Maruti vehicle too was proved. In cross examination, this witness discloses that the inquest was not possible in the night of the occurrence due to heavy down pour and darkness. He confirmed the registration number of the Truck as AS-01 -C/7419 and with reference to the GD entry, stated that the said vehicle had arrived at the place of occurrence with boulders. He proved the statement of the accused appellant No.3 recorded under Section 164 Cr.P.C. (Ext.C). He admitted with reference to Ext.7 sketch map that there was no mention of electric light therein. 15. On being confronted, this witness with reference to the Case Diary, stated that the PW-1 had not stated before him that the accused appellants Alok, Jhalak and others had assaulted the injured with stones but stated that he had been assaulted. This witness also referred to the omissions of PW-1 about his statement regarding presence of electric light in his (informant's) office as well as outside the sweetmeat shop of one Parimal Paul. Similarly, this witness with reference to PW-2 Shri Debendra Baishnab deposed that he (PW-2) had not stated before him that the accused appellant No. 1 had driven the truck over the injured and four other accused apellants had boarded it by then. 16. Mr. Mazumdar, learned senior counsel has r ersuasively argued that the prosecution uise having regard to contradictions in the GD entry vis-a-vis the FIR and the versions of PW-1, PW-2 and PW-3 is wholly untrustworthy, and therefore, the conviction of the accused appellants has been per se illegal rendering the impugned judgment and order un-sustainable in law. According to the learned senior counsel, the contents of the GD entry and the FIR militate against each other and thus destroy the substratum of the prosecution case. According to him, the prosecution sought to improve its case by proving the FIR, which was otherwise uncalled for. In particular, Mr. Mazumdar, pointed out that in the GD entry, the names of accused appellant No.3 Sajal and accused appellant No.5 Bipendra as well as Pradip Ghosh were omitted, evidently as they were not involved in the incident as sought to be projected and that their subsequent incrimination was an after thought. In particular, Mr. Mazumdar, pointed out that in the GD entry, the names of accused appellant No.3 Sajal and accused appellant No.5 Bipendra as well as Pradip Ghosh were omitted, evidently as they were not involved in the incident as sought to be projected and that their subsequent incrimination was an after thought. While contending that none of the other 10/15 persons said to have assembled at the place of occurrence had been examined by the prosecution without any explanation whatsoever, Shri Mazumdar, has insisted that the evidence of PW-1, PW-2 and PW-3 does not inspire confidence and ought to be rejected intoto. The failure of the investigating agency to seize the iron lever as well as the stones by which alleged assaults have been made on the injured also renders the prosecution case un-creditworthy he urged. As the medical witness had failed to identify the injuries with the assaults said to have been made by the iron lever or the stones, the complicity of the accused appellants have not been proved, he argued. There being irreconcilable statements with regard to the time and venue of the inquest over the dead body, the learned Court below ought to have rejected the prosecution case inlimine, he contended. Referring to the evidence of P W-9, Mr. Mazumdar has pleaded that it is apparent that there was no light at the place of occurrence and thus the testimony of P W-1, PW-2 and PW-3 about the identification of the accused appellant being seriously in doubt, their involvement in the occurrence is not established. Standing by the suggestion made by the defence to PW-1, PW-2 and PW-3, Mr. Mazumdar has urged that the deceased having been killed in a vehicular accident in which the accused appellants had no role to play, the impugned decision ought to be interfered with in the interest of justice. 17. Refuting the above, Mr. Kamar, has argued that PW-1, PW-2 and PW-3 being natural witnesses, having regard to the existing set of facts and their evidence, corroborative of each other, case of the prosecution has been proved beyond all reasonable doubt and no interference in the impugned judgment is thus called for. 17. Refuting the above, Mr. Kamar, has argued that PW-1, PW-2 and PW-3 being natural witnesses, having regard to the existing set of facts and their evidence, corroborative of each other, case of the prosecution has been proved beyond all reasonable doubt and no interference in the impugned judgment is thus called for. Referring to the post mortem report, the learned PP has contended that the injuries as recorded therein fully accord with the series of assaults narrated by PW-1, P W- 2 and PW-3 as well as those likely to be suffered by a person run over by a heavy vehicle. According to Mr. Kamar, the variations in the GD entry and the FIR are not material at all to reject the prosecution case on that count. He contended that the statement of the 1C) (PW-9) about the absence of any mention of light in the sketch map per se does not efface the evidence of PW-1. PW-2 and PW-3 to the contrary. In all, the learned PP urged that having regard to the over whelming evidence of PW-1, PW-2 and PW-3, conviction and sentence recorded by the learned trial Court is unassailable and ought not to be interfered with. 18. We have closely considered the evidence on record as well as the arguments advanced. Admittedly, the GD entry (Ext.6) carried the information first in point of time about the incident. A perusal thereof reveals that the same was recorded on 11.05 p.m. of 16.7.05 at the Gumrah PIC under the K.atigorah Police Station. The same discloses that the informant Sunil Baishnab (P W-1) had lodged the information at about 10-15 p.m. to the effect that the accused appellant Nos. 1, 2 and 4 had assaulted the injured and had dragged him from his office whereupon he was felled on the road and that thereafter the accused appellant No. 1 had driven the truck over him. as a result of which, he died instantaneously. The GD entry reveals mat on receipt of the said information, the officer concerned took steps to investigate the matter. 19. The FIR (Ext.2) lodged on 17.7.2005 refers to all the accused appellants, who according to contents thereof, had come in a truck AS-01-C-7419 to feed fat their previous grudge and after stopping it in front of the office of the informant had started assaulting the injured. 19. The FIR (Ext.2) lodged on 17.7.2005 refers to all the accused appellants, who according to contents thereof, had come in a truck AS-01-C-7419 to feed fat their previous grudge and after stopping it in front of the office of the informant had started assaulting the injured. The FIR discloses that on being assaulted and having sustained injuries there from, the injured fell on ground and that thereafter the accused appellant No. 1 drove the above truck over him killing him on the spot. 20. The GD entry and the FIR when placed together demonstrates the omission on the part of the informant to involve accused appellant Nos. 3 and 5 in the occurence at the time when the first verbal information was made relating to the occurrence. Apart from the above, the substance of the informations carried by both the documents is the same. Having regard to the fact that the GD entry was recorded on a verbal information made by the informant immediately after the occurrence in a very troubled and bewildered state of mind, in our considered opinion, such an omission per sc cannot be construed to be that fatal to reject the prosecution case on that count alone.The FIR was lodged as the evidence discloses after the deceased was cremated the next day and it is natural that in a comparatively calm mental frame, the informant recollected the incident as a whole and included the names of the accused appellants No. 3 & 5. This disparity between the GD entry and the FIR. to reiterate, in our opinion does not annihilate the edifice of the prosecution case. 21. The noticeable variance in the place of occurrence is also not of much significance having regard to the series of events in quick succession resulting in the death of the deceased. This is more so, in view of the otherwise consistent testimony of the PW-1. PW-2 and PW-3. On this count as well, in our opinion the prosecution case is not liable to be rejected. The statement of PW-1 Shri Sunil Baishnab about the assembly of 10/15 persons at the place of occurrence by itself does not follow that they had witnessed the incident. In that view of the matter, the non-examination of those persons as well ipso-facto does not render the prosecution case unbelievable. The statement of PW-1 Shri Sunil Baishnab about the assembly of 10/15 persons at the place of occurrence by itself does not follow that they had witnessed the incident. In that view of the matter, the non-examination of those persons as well ipso-facto does not render the prosecution case unbelievable. The testimony of PW-1, PW-2 and PW-3 complementing each other provides a sequence of events which projects a clear, vivid picture of the incident. 22. A combined reading of the evidence of these three witnesses does not on the face of it disclose any incompatible feature or features effacing each other, leaving the prosecution case in shreds. On the other hand, in our estimate not only their testimony deals with the minor details of the incident in cohesion with each other, the same demonstrates the involvement of the accused appellants in clear terms. The omission of the investigating agency to seize the iron lever or the boulders by which the injured had been assaulted is not in the face of the above, terminal for the prosecution. True, it is that the medical witness has not in clear terms identified the injuries sustained by the deceased with the assaults and the weapons used but had opined generally that the same had been caused by blunt force impact. The fracture in the occipital bone, frontal bone and left parietal bone spilling the brain matter through the injury as well as the multiple abrasions present over the face and in face lend support to the version of assaults on the injured by iron lever and stones as referred to by P W-1, PW-2 and PW-3, in their evidence and, the eventual run over by the truck. On a totality of the evidence as above, we are convinced about the culpability of the accused appellants vis-a-vis the charges levelled against them. The evidence of PW-1, PW-2, PW-3 and PW-4, taken together, establish beyond doubt their involvement in the offence with which they have been charged in the instant case resulting in the death of the brother of the informant. 23. This notwithstanding, one aspect of the incident cannot be overlooked. The evidence of PW-1, PW-2, PW-3 and PW-4, taken together, establish beyond doubt their involvement in the offence with which they have been charged in the instant case resulting in the death of the brother of the informant. 23. This notwithstanding, one aspect of the incident cannot be overlooked. The eye witnesses i.e. PW-1, PW-2 and PW-3 though have stated in categorical terms that the injured while lying on the ground was run over by the truck being driven by the accused appellant No. 1, there is no evidence that the vehicle so driven deliberately with the intention of killing him. The evidence on record is also not clear as to the orientations of the injured as well as the truck when it was driven by the accused appellant No. 1. There is no evidence as well that either the accused appellant No. 1 had indicated either by gesture or by speech to the co-accused of his intention to run over the injured then lying on the ground to crush him to death. The possibility of the injured, having regard to his position on the road visa-vis the situation of the truck being run over accidentally thus cannot be totally ruled out. We are, therefore, not in a position to conclusively hold that except inflicting the assaults on the injured the accused appellants either individually or collectively had otherwise an intention to do away with him by driving the vehicle over him at a state when he was lying helpless and injured on the road. However, being the perpetrators of the assaults and being fully aware that the injured was lying on the ground, not in a position to defend himself or move, we are not in a position to infer either that the accused appellants had no knowledge whatsoever of the possible disastrous consequence of driving the truck without taking adequate care. On the other hand, the accused appellants being fully conscious of the fact that the injured had been assaulted and was lying in the vicinity of the truck therein their bid to drive the truck in a hurry to flee from the scence cannot be said to be dehors their knowledge of the likelihood of such end result. 24. On the other hand, the accused appellants being fully conscious of the fact that the injured had been assaulted and was lying in the vicinity of the truck therein their bid to drive the truck in a hurry to flee from the scence cannot be said to be dehors their knowledge of the likelihood of such end result. 24. On a cumulative consideration of the above, we are of the opinion that though the accused appellants had no intention to cause the death of the injured by driving the vehicle over him. they indeed did so with the knowledge of such a consequence. 25. That the truck in question was involved in the incident is also apparent from the suggestions made on behalf of the defence, As a matter of fact, it had been suggested that in course of the scuffle between the deceased and Shri Pradip Ghosh, who according to the defence, was then driving the vehicle the former fell under the wheels of the moving truck. 26. We have considered the statements recorded under Section 313 of the Cr.P.C. as well as the pleas raised on behalf of the accused appellants in course of the hearing for recording the sentence. In the face of the determination made herein above, we are of the view that the conviction of the accused appellants need to be converted to one under Section 304 Part-II of the IPC. Ordered accordingly. 27. On a scrutiny of the attendant facts and circumstances including the age of the accused appellants at the time of commission of the offence, we are of the opinion that a sentence of 10(ten) years imprisonment each and fine of Rs. 5.000/- (Rupees five thousand) each, in default to suffer another 3 months imprisonment would meet the ends of justice. 28. The appeal is thus partly allowed in the above terms.