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2010 DIGILAW 823 (GAU)

Gopal Chauhan v. State of Assam

2010-11-02

B.D.AGARWAL

body2010
JUDGMENT B.D. Agarwal, J. 1. This criminal appeal is directed against the Judgment and Order dated 21.07.2003 passed by Shri T Phookan, Learned Sessions Judge, Karimganj in Sessions Case No. 42 of 2001 whereby the learned Sessions Judge has convicted the appellants under section 304 Part-II/ 34 of the Indian Penal Code (IPC). On such conviction, the appellants have been sentenced to undergo rigorous imprisonment for 3(three) years and also to pay fine of Rs. 500/- each with default stipulation of further rigorous imprisonment for 3 (three) years. The appellants are brother and they have filed this appeal jointly. 2. Heard Mr. HRA Choudhury, learned Senior counsel for the appellants. Also heard Mr. K. Munir. learned Addl. P.P. for the State of Assam. I have also perused the impugned Judgment and evidence on record. 3. As could be gathered from the record, both the accused persons and the deceased had agricultural land adjacently. On 17.09.1999 at about 2 P.M., an altercation took place between the deceased and his sons on the one side and the accused persons on the other side regarding tending of cattle. After few hours of the said altercation, the incident of physical assault took place. It is the prosecution case that while the deceased and his sons and daughters were returning home, they were wet-laid by the appellants and assaulted Rameswar Chauhan at random with a lathi and dao. On the same night, at about 8 P.M., the FIR was lodged naming six persons as the assailants. The FIR was registered as Ratabari Police Station Case No. 192 of 1999 under Section 147/341/325 of the IPC. 4. Subsequently Section 302 of the IPC was added when Rameswar Chauhan died in the hospital on 05/10/1999. After investigation, charge sheet was submitted against the appellants only and they have been tried for the offences under Section 323 and 304 Part-I read with Section 34 of the IPC. 5. In order to establish the aforesaid offence, the prosecution examined altogether 13 ( thirteen ) witnesses. On the other hand, the accused persons took a defense of total denial and no evidence in defense was also proffered. Having found that the incident was witnessed by two sons and one daughter of the deceased, the Trial Court has recorded the conviction. 6. On the other hand, the accused persons took a defense of total denial and no evidence in defense was also proffered. Having found that the incident was witnessed by two sons and one daughter of the deceased, the Trial Court has recorded the conviction. 6. The impugned judgment has been basically challenged on the ground that the deceased and his children were the aggressor and they had in fact first assaulted the appellant No. 3, Babulal Chauhan. On this premise, Mr. Choudhury submitted that the Trial Court ought to have acquitted the accused persons for giving them benefit of doubt for acting in private defense. As could be gathered from the impugned judgment, P Ws-2, 4 and 6 are the children of the deceased and PW-10 is the wife of the deceased. At the same time P Ws-9 and 11 are the independent witnesses. However, according to the learned Sessions Judge, PW-9 did not witness the incident. Similarly, the testimony of PW-11 has also been discarded on the ground that eye witnesses did not say before the I.O. about his presence at the scene. The remaining witnesses have been declared as hearsay witnesses. In this way, conviction has been recorded basically on the testimony of P Ws-2, 4 and 6. 7. After going through the prosecution evidence, I find that a casual suggestion was given to PW-2 that they have filed a false case to save themselves from the counter case lodged by the accused persons. In other words, the witnesses were not cross-examined at length to elicit as to how the accused Babulal Chauhan was assaulted, what nature of injury was sustained by him and under what circumstances the deceased was assaulted at random. I have said earlier that no evidence in defense was tendered by the accused persons. 8. The fact of counter case is also evident from the testimony of the I.O. ( PW-12). The I.O. has also stated that he had also received an FIR from the side of the accused persons which was registered as Ratabari Police Station Case No. 191/1999 under Section 147/325/326 of the Indian Penal code and chargesheet was also submitted in the said case. Despite that, there is no indication that any prayer was made from the side of the appellant for simultaneous trial. The fate of counter case is also not known. 9. Despite that, there is no indication that any prayer was made from the side of the appellant for simultaneous trial. The fate of counter case is also not known. 9. Be that as it may, from the fact of filing of cross case, the involvement of the appellants in the marpit can also be safely inferred and this fact also reinforces the ocular testimony of P Ws-2, 4 and 6. At the same time, no specific testimony was given to the aforesaid eye witnesses that the deceased Rameswar Chauhan had sustained injury accidentally or that any other person was involved in his assault. On the other hand, there is specific evidence of prosecution witnesses about an altercation just few hours prior to the incident of physical assault and this is also an incrementing circumstance against the appellants. 10. With regard to the plea of the appellants that the deceased and his children were aggressors, there is no evidence on record. At the same time, from the medical evidence, it is gathered that the deceased had sustained as many as five injuries on different parts of the body. According to PW-3, who had examined the deceased in injured condition, the deceased had sustained cut injury as well as lacerated and penetrating injury. In view of inflicting multiple injury, no benefit of acting in private defense can be given to the appellants. 11. The learned Counsel for the appellants have also urged that the nature of injury did not bring the offence within the parameters of Section 304 Part-II of the IPC. The record reveals that since after the incident, the deceased was under treatment and he died within 18 (eighteen) days. In other words, the death of Rameswar Chauhan was the direct result of his physical assault and as such the offence cannot be taken ought of rigour of culpable homicide. 12. In the result, the appeal stands dismissed. I also do not see any ground to interfere with the quantum of sentences. Hence, the sentences awarded by the Trial Court are also hereby upheld. The bail granted by the High Court dated 21.08.2003 in Misc. Case No. 464 of 2003 stands vacated. The appellants are directed to surrender before the Trial Court forthwith to serve out the sentences. 13. The Registry is directed to return the LCR with a copy of this Judgment to the learned Addl. P.P. immediately. The bail granted by the High Court dated 21.08.2003 in Misc. Case No. 464 of 2003 stands vacated. The appellants are directed to surrender before the Trial Court forthwith to serve out the sentences. 13. The Registry is directed to return the LCR with a copy of this Judgment to the learned Addl. P.P. immediately. Appeal dismissed.