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2010 DIGILAW 417 (GAU)

Dolu Munda v. State of Assam

2010-06-08

AMITAVA ROY, UTPALENDU BIKAS SAHA

body2010
JUDGMENT U.B. Saha, J. 1. This appeal is preferred by the convict Appellant Dolu Munda @ Lakhindar from the jail as he was convicted under Section 302 of the Indian Penal Code (for short 'IPC') and sentenced to suffer rigorous imprisonment for life and to pay a fine of Rs. 1,000/-, i/d to undergo rigorous imprisonment for Anr. term of six months by the learned Additional Sessions Judge, Cachar, Silchar vide his judgment and order dated 4.9.2003 passed in Sessions Case No. 113 of 2002. 2. We have heard Mr. S.K. Medhi, learned Amicus Curiae for the accused-Appellant and Mr. K.A. Majumder, learned Public Prosecutor, Assam. 3. The unfolded prosecution case, inter alia, is that on 26.6.2000 one Shri Lochan Bhor lodged an Ejahar before the Officer-in-Charge of Dholai Police Station complaining, inter alia, that on that day at about 3.30 p.m. when his father Budhua Bhor was issuing membership receipts in his capacity as the president of Bharatiya Tea Mazdoor Union, the Appellant along with Shri Ranjit Chasa, Madan Telipatar, Jahan Rajwar, Lakhia Bhumij and Ors., residents of Bhubandar Tea Estate under Dholai Police Station in the District of Cachar forming an unlawful assembly and having been armed with dao, lathi, dagger etc. attacked his father, assaulted him and the accused-Appellant cut his father's neck with a dao and as a result, his father died at the spot. At the time of the aforesaid incident, the informant was in his place of work and after getting the information he went to the place of occurrence and heard that the accused-Appellant had killed his father by cutting his neck while the other accused had hit him in various parts of his body. On receipt of the Ejahar, the Officer-in-Charge of Dholai Police Station registered a police case being Dholai PS Case No. 120 of 2000 under Sections 147/148/149/325/302 IPC and the process of investigation was accordingly set into motion. During the course of investigation, the investigating authority having found sufficient materials against the accused persons including the present Appellant submitted charge sheet against the accused-Appellant and seven Ors. under Sections147/148/149/302 IPC. The offence being exclusively triable by the Court of Sessions, the learned SDJM, Cachar committed the case to the Court of learned Sessions Judge, Cachar for trial and the learned Sessions Judge thereafter transferred the case to the learned Addl. Sessions Judge, Cachar for trial. The learned Addl. under Sections147/148/149/302 IPC. The offence being exclusively triable by the Court of Sessions, the learned SDJM, Cachar committed the case to the Court of learned Sessions Judge, Cachar for trial and the learned Sessions Judge thereafter transferred the case to the learned Addl. Sessions Judge, Cachar for trial. The learned Addl. Sessions Judge upon hearing the learned Counsel for the parties and taking note of the evidence available on record framed charge against the accused-Appellant and seven Ors. under Sections 148/149/302 IPC to which all the accused persons pleaded not guilty and claimed to be tried. During trial while the prosecution examined as many as 12 witnesses including the Doctor (P.W. 6) who conducted the autopsy on the dead body, the defence examined none. After the closure of the prosecution case, the accused-Appellant along with other co-accused were examined under Section313 Code of Criminal procedure and the learned trial Court recorded their statement. The case of the defence was denial simpliciter. At the end of trial, upon hearing the learned Counsel for the parties as appeared and considering the evidence on record, the learned trial Court acquitted the other accused persons from the charges levelled against them and convicted the present Appellant under Section 302 IPC and sentenced him to suffer R.I. for life with a fine of Rs. 1,000/-, i/d. to undergo R.I. for Anr. term of six months. Being aggrieved by the aforesaid judgment and order of the learned Addl. Sessions Judge, Cachar, Silchar, the Appellant preferred this appeal. 4. Mr. Medhi has challenged the conviction of the Appellant and has argued that the evidence adduced by the prosecution is not sufficient to warrant the conviction of the accused-Appellant and to establish his complicity. According to him, learned trial Court ought not to have convicted the Appellant when all other co-accused have been acquitted from the charges levelled against them. He further urged that no case of murder is made out against the accused-Appellant, at best a case of culpable homicide is made out against him as the death of the deceased was followed by the altercation between the deceased and the accused-Appellant. He further urged that no case of murder is made out against the accused-Appellant, at best a case of culpable homicide is made out against him as the death of the deceased was followed by the altercation between the deceased and the accused-Appellant. He finally submitted that since the accused-Appellant is in custody from the date of his conviction and meanwhile he has already served out almost seven years imprisonment, it would be proper for this Court to alter the judgment of conviction from Sections 302 - 304 Part-II IPC and he may be sentenced for the period he has already undergone. 5. Per contra, the learned Public Prosecutor while resisting the submission of Mr. Medhi would contend that the learned trial Court did not commit any error in convicting the Appellant being he is found guilty upon appreciation of the evidence of eye witnesses, particularly the evidence of P.W. 2, Shri Janmejoy Majhi, P.W. 3, Shri Bhaskar Munda, P.W. 5, Shri Ajit Tati and P.W. 9, Shri Jotilal Bhor who were the associates of the deceased while he was issuing membership receipts for Panchayat Elections. He also contended that even if the contention of Mr. Medhi, inter alia, that the death of the deceased was followed by altercation between the accused-Appellant and the deceased is admitted then also it cannot be said that it is a case of culpable homicide, not murder as the Appellant caused injuries on the vital organs of the deceased like head, neck, spinal cord etc. knowing fully well that those were sufficient in ordinary course to cause death of the deceased. The altercation between the Appellant and the deceased can hardly be said to be great provocation so as to justify any physical assault on the deceased much less inflicting the blows with the sword. He further contended that from the evidence of prosecution witnesses, particularly the eye witnesses, it appears that the accused-Appellant gave blow one after Anr. with the sword on the vital parts of the body of the deceased and the injuries inflicted were grievous in nature and dangerous to life which resulted in death of the deceased as deposed by the Doctor (P.W. 6). with the sword on the vital parts of the body of the deceased and the injuries inflicted were grievous in nature and dangerous to life which resulted in death of the deceased as deposed by the Doctor (P.W. 6). He finally contended that a conjoint reading of evidence of the eye witnesses and the Doctor (P.W. 6) would clearly establish that the presence of the Appellant along with other acquitted accused formed an unlawful assembly and the common object of the unlawful assembly was only to commit murder of the deceased, not to take the receipts by simple altercation. From the act of the accused-Appellant inflicting blow one after Anr. by the sword on the vital parts of the body of the deceased even an illiterate can presume to know that an intense assault with such weapon on such vital parts of the body would cause death. Therefore, no interference by this Court with the impugned judgment and order is called for. 6. To consider the rival submissions of the parties and also to find out the justifiability of the conviction and sentence imposed upon the accused-Appellant, it would be proper for us to examine the evidence of prosecution witnesses on record. 7. P.W. 1, Shri Lochan Bhor is the son of the deceased. He did not see the incident. After getting the information about the incident he lodged the Ejahar before the police. 8. P.W. 2, Shri Janmejoy Majhi, P.W. 3, Shri Bhaskar Munda, P.W. 5, Shri Ajit Tati and P.W. 9, Shri Jotilal Bhor were with the deceased as his associates at the time of the incident and witnessed the same. 9. P.W. 4, Shri Nakul Tati in his deposition stated that at the relevant point of time he was taking bath at a place situated at a distance of 20 nals from the place of occurrence and saw that some people were running away. Having seen the people running away he looked at the place of occurrence and found the deceased with multiple cut injuries and was uttering "save save" and before his arrival at the place of occurrence, the accused-Appellant fled the scene. 10. P.W. 6, Dr. Having seen the people running away he looked at the place of occurrence and found the deceased with multiple cut injuries and was uttering "save save" and before his arrival at the place of occurrence, the accused-Appellant fled the scene. 10. P.W. 6, Dr. Homeswar Sarma performed the autopsy on the body of the deceased on 27.6.2000 and found the following injuries: 1) Incised wound of the right wrist on dorsum surface measuring 2 x .5 x 1 c.m. 2) Incised wound of the right palm and hand as a whole obliquely cutting all the structures including medial 3 metacarpal bone causing infirmity and separating that side (as per diagram in the P.M. report). 3) Incised wound placed obliquely over back of the head and neck from behind of mastoid process up to midline and the back of the neck at 4th cervical vertibra level. 4) Same sized incised wound in the same plane as shown in the diagram in the P.M. report. Both wounds measures 11 cm. x 2 mm. x 7 cm. cutting the 4th cervical vertebrae and meninges. 5) Incised wound over right side of the vertex placed obliquely measuring 4 x .5 x scalp deep. Spinal cord incised at 4th cervical level. According to his (P.W. 6) opinion, cause of death was haemorrhage and shock resulting from the incised wounds sustained which were ante-mortem and homicidal in nature. He proved the post mortem report (Ext.3) and his signature [Ext.3(1)]. 11. P.W. 7, Shri Birbal Dusad is the seizure witness of receipt books from the place of occurrence. 12. P.W. 8, Shri Lalta Prasad Mala and P.W. 10, Shri Prabhat Chasa are the hearsay witnesses who accompanied the police and the accused-Appellant to see the place where the accused-Appellant threw the dao which he used, but after searching the place the dao was not recovered. 13. P.W. 11, Shri Nanda Lal Dusad who has a grocery shop in the garden area deposed that on the date of occurrence at about 3.30 p.m. when he opened his shop he saw the accused-Appellant and two Ors. coming back from southern side of the garden. 14. P.W. 12, Shri Dilip Chetia was the I/O of the case who after investigating the prosecution case filed the charge sheet. 15. coming back from southern side of the garden. 14. P.W. 12, Shri Dilip Chetia was the I/O of the case who after investigating the prosecution case filed the charge sheet. 15. P.W. 2, Shri Janmejoy Majhi, P.W. 3, Shri Bhaskar Munda, P.W. 5, Shri Ajit Tati and P.W. 9, Shri Jotilal Bhor being the eye witnesses of the incident, salient portions of their deposition are discussed herein under: 16. P.Ws. 2, 3 and 5 stated on oath that at the time of occurrence they were with the deceased and when they were distributing the membership receipts to the people and collecting money, the Appellant along with Ranjit Chasa came there and started altercation with them and then the accused-Appellant suddenly took out a sword from inside his umbrella and started assaulting the deceased. Having seen the occurrence they fled away. The deceased fell down on the ground as a result of the assault and later on he was called by the police and heard that the deceased expired as a result of the assault. In cross they stated that when the deceased attempted to resist, the accused-Appellant dealt blows with the sword on the deceased. They denied the suggestion that they along with the deceased assaulted the accused-Appellant. 17. P.W. 9 stated on oath that while he was sitting with the deceased on a bench by the side of a road, the accused-Appellant along with Ranjit Chasa, Sanat Raj war, Madan Munda, Lokhia Rajwar, Sanku Singh and Ors. came there. The accused-Appellant was armed with a dagger and Ors. were armed with lathi etc. They asked the deceased about the receipts issued by them and snatched away the receipt books from the deceased and immediately thereafter the accused-Appellant gave blow with dagger on the deceased and the other accused persons started dragging the deceased. As a result of assault with dagger by the accused-Appellant, the deceased fell down on the ground and died. In cross, the defence could not shaken the aforesaid evidence of P.W. 9. 18. As a result of assault with dagger by the accused-Appellant, the deceased fell down on the ground and died. In cross, the defence could not shaken the aforesaid evidence of P.W. 9. 18. Having heard the learned Counsel for the parties and upon perusal of the impugned judgment as well as the testimony of the prosecution witnesses as discussed supra, questions arise for decision are whether mere acquittal of the other accused against whom similar charges were levelled, the accused-Appellant is entitled to the same benefit and whether the alleged offence comes within the purview of culpable homicide not amounting to murder in view of the fact that the death of the deceased was followed by an altercation. 19. It is the admitted position that the learned trial Court has framed charges against all the accused persons under Section 148 IPC as well as Section 302 read with Section 149 of the IPC, and after conclusion of the trial acquitted the other accused persons except the accused-Appellant as the learned trial Court had seen that except P.W.9 other prosecution witnesses have not implicated accused Sanat Rajwar, Shrikanta Rajwar @ Siri, Ranjit Chasa, Madan Telipator, Johan Raj bhor, Lakhia Bhumij and Lakhindar Rajwar. Moreso, it is also noted by the learned trial Court that the prosecution witnesses have not given uniform and consistent evidence regarding the appearance of all the accused in the place of occurrence. Only P.W. 9 stated on oath before the Court that after the assault on the deceased by the accused-Appellant the other accused persons had dragged the deceased and the said fact of dragging of the deceased by those persons finds no corroboration from any other eye witnesses and except P.W.9 no other witnesses have stated that those accused persons had done any overt act except the accused-Appellant and accordingly, the learned trial Court discarded the aforesaid evidence of P.W.9 and ultimately acquitted those accused persons. Each and every member of the mob need not necessarily be held liable for the action of any other member of that mob unless it is established by the prosecution that those persons have assaulted the deceased by way of specific overtact. Each and every member of the mob need not necessarily be held liable for the action of any other member of that mob unless it is established by the prosecution that those persons have assaulted the deceased by way of specific overtact. In order to attract the culpability under Section 149 of the IPC, it has to be remembered that the said section does not create any new offence but deals with vicarious liability of the members of the unlawful assembly for the acts done in prosecution of common object and for such offence as its members knew to be likely to be committed in prosecution of that common object. In that case every person who at the time of committing of that offence as a member of the same assembly is undoubtedly guilty of that offence. But in the instant case as the accused persons acquitted were not aware about the intention of the accused-Appellant to kill the deceased and they were not assembled with a common object to kill the deceased it cannot be said that they formed unlawful assembly as defined in Section 141 of the IPC. Moreso, when there is no appeal before us by the State against the order of acquittal of those accused persons, it is not necessary for us to discuss whether those persons were really involved in the offence as alleged by the prosecution. We are concerned in the instant appeal so far the conviction of the Appellant is concerned and as discussed mere acquittal of the co-accused would not entitle the other accused to be acquitted from the charges when it is established by the prosecution witnesses that the said accused had attributed some overt act and covert act in relation to the alleged offence. 20. From the testimony of P.Ws. 2, 3 and 5 it is established that the accused-Appellant gave blow with the sword on the body of the deceased one after Anr. and the injuries inflicted were not only grievous in nature, but also dangerous to life which resulted in death of the deceased. The evidence of the aforesaid witnesses also got corroboration from the injuries recorded by P.W. 6 in the post mortem report. and the injuries inflicted were not only grievous in nature, but also dangerous to life which resulted in death of the deceased. The evidence of the aforesaid witnesses also got corroboration from the injuries recorded by P.W. 6 in the post mortem report. According to the opinion of P.W. 6 cause of death was haemorrhage and shock resulting from the incised wounds sustained which were ante-mortem and homicidal in nature and the time of death according to him was within 16-24 hours. Therefore, we are unable to accept the contention of Mr. Medhi, inter alia, that acquittal of the other accused persons also entitled the accused-Appellant to be acquitted. 21. There is no doubt that a quarrel took place between the deceased and the accused-Appellant regarding snatching away of receipt book, but the said quarrel immediately followed sword blow on the vital parts of the body of the deceased which caused injuries grievous in nature and dangerous to life. Had the Appellant was not with an intention to cause injuries on the body of the deceased for killing him then why he carried the sword, a sharp cutting weapon in his umbrella and used the same for inflicting injuries on the body of the deceased one after Anr.. Therefore, we are of the considered view that though the altercation between the accused-Appellant and the deceased was subsequently followed by repeated sword blows on the deceased, but that was with an intention to kill the deceased. Therefore, it cannot be said that the act of the Appellant comes within the purview of culpable homicide not amounting to murder, an offence under Section 304 Part-II IPC. Hence, the learned trial Court has rightly convicted the Appellant under Section 302 IPC for committing murder of the deceased. 22. The impugned judgment being a self-contained one and also we are agreed with the reasons stated therein for convicting the accused-Appellant under Section 302 IPC on the basis of the evidence of prosecution witnesses as set out supra, it is not necessary on our part to give detailed reasons for sharing the same view with that of the learned trial Court. Moreso, we are of the opinion that the impugned judgment and order do not call for any interference. 23. In view of the aforesaid position, we confirm the judgment and order of conviction and sentence of the learned trial Court impugned herein. 24. Moreso, we are of the opinion that the impugned judgment and order do not call for any interference. 23. In view of the aforesaid position, we confirm the judgment and order of conviction and sentence of the learned trial Court impugned herein. 24. In the result, the appeal fails. 25. Before we part, we record our appreciation for the performance of the learned Amicus Curiae and we order the payment of his professional fees of Rs. 3,500/-. The payment should be made without delay. Appeal dismissed.