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2011 DIGILAW 349 (GAU)

Krishna Das @ Krishna Barman v. State of Assam

2011-04-19

P.K.MUSAHARY

body2011
JUDGMENT P.K. Musahary, J. 1. Heard Mr. P. Kataki, learned Counsel for the Appellants. Also heard Mr. B.B. Gogoi, learned Addl. Public Prosecutor for the Respondent State of Assam. 2. This appeal has been preferred against the judgment dated 27.07.2009 passed by the learned Addl. Sessions Judge, FTC No. 3, Kamrup, Guwahati, in Sessions Case No. 333(K) of 2003 convicting the Appellants under Sections 304/323/34 IPC and sentencing each of them to undergo R.I. for 10(ten) years with fine of Rs. 5,000/- each, in default, to undergo R.I. for 1 year under the first count and 3 months R.I. under the second count. 3. The prosecution case in short is that on 18.09.2002 at about 9 PM, while the brother of the informant Sri Thaneswar Malakar asked the accused Pranab Barman to repay the loan amount, he was assaulted with sharp weapon and when he raised alarm, his father Suresh Malakar and brother Sri Ratneswar Malakar rushed to the spot and found him lying on the ground in an injured state. All of a sudden, accused Krishna Barman, Ranjit Barman, Haresh Barman and Tapan Barman, began to assault them with sharp weapons as a result of which their father Suresh Malakar was critically injured. He was shifted to Hajo PHC but succumbed to his injuries. Three other members of Malakar family were also injured. On the following day, Sri Ratneswar Malakar lodged an FIR with Hajo Police Station which was registered as Hajo P.S. Case No. 186 of 2002 under Sections 325/326/302/34 IPC. After investigation, charge sheet was submitted and the case was committed to the court of Sessions. The case being made over to the learned Additional Sessions Judge, FTC No. 3, Kamrup, Guwahati, charges were framed under Sections 323/302/34IPC. The accused Appellants denied the charges and pleaded for trial. The prosecution examined in all 12 witnesses including the I.O. and the Medical Officer. The defence also examined 2 witnesses. On consideration of the evidence and materials on record and upon hearing the learned Counsel for the parties, the learned trial court awarded conviction and sentence, as stated above. 4. Mr. The prosecution examined in all 12 witnesses including the I.O. and the Medical Officer. The defence also examined 2 witnesses. On consideration of the evidence and materials on record and upon hearing the learned Counsel for the parties, the learned trial court awarded conviction and sentence, as stated above. 4. Mr. Kataki, learned Counsel for the Appellants, submits that the prosecution could not bring home the charge under Section 302/323/34 IPC inasmuch as the alleged occurrence took place suddenly and the deceased was hit at the heat of the moment and there was no intention to kill him to attract Section 302 of IPC. Similarly, there was no pre-plan or meeting of mind of the accused persons for collectively attacking the deceased and his sons and daughter. The accused persons gathered on the spot only when there was a hue and cry just after the scuffle between Thaneswar Malakar and accused Pranab Barman ensued on demand of return of loan amount. All the accused persons cannot be held liable for causing death of the victim Suresh Malakar and as such, the accused persons should have been acquitted or should have been awarded with lesser punishment. 5. The prosecution claims that PWs-1, 4 and 6, are eye witnesses and therefore, it is necessary to appreciate the evidence tendered by them. PW-1 Sri Ratneswar Malakar is the informant and one of the sons of the deceased Suresh Malakar. According to him, his brother Sri Thaneswar Malakar went to the house of accused Pranab Barman/Das demanding return of money which was due to him. The accused Pranab Barman/Das assaulted his brother causing serious injuries on various parts of the body and being attracted by hue and cry, he, along with his sister Kunjalata and father Suresh Malakar, went there and saw the brother Thaneswar Malakar lying on the road in an injured condition with pool of blood. He saw the accused Pranab Barman at the place of occurrence. Meanwhile, the other accused persons namely Tapan Barman, Krishna Barman, Ranjit Barman and Pranab Barman, made a combined attack on the informant and his brother and sister and assaulted them by dao, lathi, etc.. PW-1 categorically stated that accused Tapan Barman/Das assaulted his father Suresh Malakar by the blunt side of the dao causing serious injuries. Meanwhile, the other accused persons namely Tapan Barman, Krishna Barman, Ranjit Barman and Pranab Barman, made a combined attack on the informant and his brother and sister and assaulted them by dao, lathi, etc.. PW-1 categorically stated that accused Tapan Barman/Das assaulted his father Suresh Malakar by the blunt side of the dao causing serious injuries. PW-4 Robin Malakar, son-in-law of the deceased Suresh Malakar, deposed that on 18.09.2002, at around 9 PM, when he went out from his house for a stroll, all of a sudden, he saw a gathering in front of the village Namghar. He saw a scuffle took-place between accused Pranab Barman and Thaneswar Malakar. The accused Pranab Barman gave a dao blow causing serious injuries over the thigh of Thaneswar Malakar. In the meantime, deceased Suresh Malakar along with his wife, came to the spot. Other co-accused persons also came. As he was all along present there, PW-4 could see that accused Tapan Barman assaulted the deceased by a lathi causing serious injuries and thereupon Suresh Malakar fell on the ground, who was immediately removed to Hajo PHC where he died. The other eye-witness PW-6, Thaneswar Malakar, brother of the informant and son of the deceased, deposed that he was the person who allegedly came to the house of the accused Pranab Barman asking repayment of the loan amount. He deposed that when he came to the house of the accused Appellants asking for repayment of loan amount, accused Pranab Barman rebuked him and dealt blows by a dao on his left leg and also bite his head. When he made hue and cry, his deceased father Suresh Malakar, sister Kunjalata Malakar, and brother Sri Ratneswar Malakar, came to the scene. From the house of accused Pranab Barman, other co-accused namely Sri Tapan, Ranjit and Krishna, came, armed with lathi, rod, dao, etc., and they assaulted his father Suresh Malakar, sister and brother. His injured father Suresh Malakar was shifted to Hajo PHC. He was pushed one injection. But his father expired in the morning of the following day in the Hajo PHC. The dead body was sent to Gauhati Medical College at Guwahati, for post-mortem examination. His injured father Suresh Malakar was shifted to Hajo PHC. He was pushed one injection. But his father expired in the morning of the following day in the Hajo PHC. The dead body was sent to Gauhati Medical College at Guwahati, for post-mortem examination. The defence while cross-examining PW-1 put suggestion that his brother Thaneswar Malakar(PW-6), went to the house of the accused Tapan Barman/Das and wanted to commit rape on his wife in his absence and when Tapan's wife protested, some trouble erupted between the parties. The defence also put similar suggestion to PW-6 Thaneswar Malakar that he entered the house of Tapan Barman and attempted to commit rape on his wife. Both the said prosecution witnesses denied the said suggestion. From the aforesaid suggestions, it can be understood that defence projected a story that the informant's brother Thaneswar Malakar (PW-6) came to the house of Pranab Barman in his absence, to commit rape on his wife and he was caught by Pranab Barman and others, which resulted into a scuffle and assault between two groups. To establish the story/allegation, the defence examined DW-1 Sri Pabitra Kumar Das and DW-2 Smti. Anjani Das. From the evidence of the defence witnesses, it is found that an FIR was lodged in respect of the aforesaid incident. 5. The evidence led by the prosecution has fully established the fact that the scuffle took place between the informant's group and the accused persons, resulting into physical assault and injuries. The facts of assault on Suresh Malakar, his shifting to hospital at Hajo and succumbing to injuries, have also been established. 6. PW-12 is Dr. Kanak Ch. Das, who conducted the postmortem examination in Gauhati Medical College, Guwahati, on the body of the deceased. As per his deposition, the deceased was aged about 60 years and he found the following injuries: (i) One patterned contusion over left shoulder 3.5 cm X 2.5 cm in red colour. (ii) One patterned contusion on left side of the neck upper part 4 cm X 2 cm in size, red in colour. (iii) One contusion over front and right side of the chest 15 cm X 5 cm red in colour underneath 4th, 5th and 6th ribs, were fractured. Besides, he found pleura and right lung lacerated. He also found chest cavity contained about 900 Ms. Miti Libang, learned Government Advocate liquid and clotted blood. (iii) One contusion over front and right side of the chest 15 cm X 5 cm red in colour underneath 4th, 5th and 6th ribs, were fractured. Besides, he found pleura and right lung lacerated. He also found chest cavity contained about 900 Ms. Miti Libang, learned Government Advocate liquid and clotted blood. In his opinion, death was caused due to shock and haemorrhage as a result of injuries sustained which were ante-mortem and caused by blunt weapon and homicidal in nature. On being asked, PW-12 stated that patterned injuries means impression of the weapon present over the surface of the injury. Such type of injury cannot be caused by falling on hard substance. He proved the postmortem examination, Ext.-P/7, prepared by him and also his signature thereon, Ext.-P/7(1). 7. The prosecution has been able to prove that the accused received multiple serious injuries by blunt weapon and such injuries are of homicidal in nature inasmuch as the Medical Officer (PW-12), categorically denied the possibility of causing such injuries due to falling on hard substance. The eye-witnesses PWs-4 and 6, have also stated in their deposition that the deceased was hit by the accused persons by the blunt side of the dao. The injuries received by the deceased fit in the nature of weapon used by the accused persons. 8. It is to be examined as to whether the accused persons dealt blows with dao, lathi, rod, etc., upon the informant and his brothers and sister particularly the deceased father Suresh Malakar at the heat of the moment. The admitted position from the evidence is that it was Thaneswar Malakar (PW-6) brother of the informant, who went alone to demand return of the loan amount from accused Pranab Barman between whom the scuffle took place first and other accused persons came to the scene and assaulted him all of a sudden. The deceased Suresh Malakar came to rescue his son Thaneswar Malakar (PW-6). It is clear from the evidence of PWs-1, 4 and 6, that the accused persons concentrated their attack on the deceased who was an old man of 60 years although it was the specific allegation that accused Thaneswar Malakar came and entered the house of Pranab Barman and attempted to commit rape on his wife in his absence. It is clear from the evidence of PWs-1, 4 and 6, that the accused persons concentrated their attack on the deceased who was an old man of 60 years although it was the specific allegation that accused Thaneswar Malakar came and entered the house of Pranab Barman and attempted to commit rape on his wife in his absence. There is no evidence to the effect, at least, not even in the evidence of DWs-1 and 2, that deceased Thaneswar Malakar came violent and assaulted some of the accused persons or their men. It is evident from the evidence that instead of attacking particularly Thaneswar Malakar (PW-6) for his alleged misdeed, the accused persons assaulted and caused multiple injuries on the person on the old man who was comparatively weak physically. 9. The other noticeable aspect is that the defence witnesses never stated before the court that the informant's party including the deceased Suresh Malakar came to the place of occurrence armed with any weapon. The fight was, therefore, between unarmed informant's party and armed accused persons. There is also no suggestion from the defence that the informant's party came with arms to attack the accused persons. 10. On appreciation of evidence of both the prosecution and defence witnesses, irrespective of the stories projected by them, it is found that trouble started when Thaneswar Malakar visited the place of the accused Appellants for whatever reasons may be, either to get refund of the loan amount or to commit rape in the house of accused Pranab Barman, and all the accused persons came out and attacked Thaneswar Malakar by lathi, dao, iron rod, etc., and later on, when deceased Suresh Malakar and his sons and daughter came to the spot, the accused Appellants attacked the deceased person by hitting him with blunt side of the dao. The blow dealt by dao fell on the upper part of the neck, left shoulder and front and right side of the chest, which are vital parts of a human body. Who has dealt such blows by the blunt side of the dao is not in the evidence but it is found that such act was done by one of the accused Appellants knowing fully that it was likely to cause death which attracts the definition of culpable homicide under Section299 IPC. Such culpable homicide would attract the definition of murder under Section 300 IPC. Such culpable homicide would attract the definition of murder under Section 300 IPC. The act done by the accused Appellants falls under third exception provided under Section 300 IPC inasmuch as from the evidence, it has been proved that the accused Appellants gave the dao blows causing bodily injuries on the vital parts of the person of the deceased Suresh Malakar which is sufficient in ordinary course of nature to cause death. The injuries inflicted on the deceased were so serious that he succumbed to the injuries in the next morning of the incident, surviving only for a few hours. 11. There is no doubt that the injuries received by the deceased Suresh Malakar caused his death. It is to be considered under what circumstances such injuries were caused to the deceased. If the story of the defence is to be believed, the accused Appellants got angry as Thaneswar Malakar visited the house of Pranab Barman in his absence and outraged the modesty of his wife, the accused Appellants could have caught him and called the villagers or handed him over to the police for necessary action but they have chosen to assault him by taking the law at their hands and thereafter, the accused Appellants, armed with dao, lathi, iron rod, etc., indulged in a scuffle with the informant's party who were unarmed. There was no grave and sudden provocation from the informant's side depriving the power of self-control of the accused persons for which they had to give dao blows, particularly on the deceased Suresh Malakar, who was an old man of about 60 years. Even if the story of the prosecution is to be believed that Thaneswar Malakar came to the house of the accused persons for the purpose of realizing his loan amount. Nothing has been brought on record that he created nuisance or provoked the accused persons causing deprivation of power of self-control, resulting into attack by them on the informant's party with arms, aforesaid. As per the evidence of the prosecution, accused persons selectively gave dao blows on the deceased who received serious injuries and succumbed to the said injuries in the local Hospital within few hours. As per the evidence of the prosecution, accused persons selectively gave dao blows on the deceased who received serious injuries and succumbed to the said injuries in the local Hospital within few hours. Had there been no intention to kill the deceased, the accused persons would not have gone to the extent of assaulting the deceased by dao and they would have stopped after giving him some lathi blows inasmuch as there is no evidence to the effect that the informant's party came with equally lethal weapons like dao, etc., with intention to have a physical clash with the accused persons. 12. As stated earlier, there is no evidence as to who carried the dao and who actually gave the dao blow(s) causing serious injuries to the deceased Suresh Malakar resulting into his death. Under such circumstances, amongst the accused persons, who should be held responsible for assaulting the deceased by dao? Is it not an individual act of assault for which a particular person who really inflicted the injury, should be charged and convicted for committing murder? Or is it the result of collective criminal act committed by a group of persons with common intention attracting the provisions under Section 34 IPC. There is enough evidence to the effect that all the accused persons were present at the place and time of occurrence although there is no specific evidence as to who carried what type of arms, particularly, as to who carried the dao used for the purpose of assaulting the deceased. If it is an individual act without common intention, it must be proved by sufficient evidence that crime weapon dao was carried and used by a particular accused person and in that case, Section 34 IPC will not be applicable but if the common intention in committing the offence against the deceased is proved, all the accused persons would be liable and they shall be convicted for the offence they committed. 13. The essential pre-requisite of Section 34 are common intention and participation in the crime. The participation may be direct or indirect and physical presence of all the accused persons in all the cases, is not necessary to come under the mischief of Section 34 IPC. For a clear view and better appreciation, Section 34 IPC is quoted hereunder: 34. 13. The essential pre-requisite of Section 34 are common intention and participation in the crime. The participation may be direct or indirect and physical presence of all the accused persons in all the cases, is not necessary to come under the mischief of Section 34 IPC. For a clear view and better appreciation, Section 34 IPC is quoted hereunder: 34. Acts done by several persons in furtherance of common intention: When a criminal act is done by several persons in furtherance of common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone. In the present case, I may repeat that the accused persons have not denied their presence at the place and time of occurrence and even the use of dao, lathi, iron rod, etc., while they were engaged in physical clash with the informant's party. Their common plea is that they were attacked and provoked by the informant's party and under such provocation and attack, they have to resist and during the process of resistance, the deceased Suresh Malakar received serious injuries on his person and there was no intention on the part of accused persons to kill him or cause serious injuries resulting in the death of the deceased. They also projected that there was no pre-plan or meeting of mind to kill or to cause serious injuries upon any member of the informant's party not to speak of the deceased Suresh Malakar. It was only at the heat of the moment when accused Pranab Barman was under attack by Thaneswar Malakar and when there was a hue and cry, other accused persons came to the scene to protect Pranab Barman and as such, there was no chance for building up common intention or making pre-plan to attack and kill any member of the informant's party. 14. How far the aforesaid claim of the accused persons is believable, is to be judged from the facts and circumstances of the case and the materials and evidence on record. DW-1 is Pabitra Kr. Das. He was cross-examined by the prosecution. He admitted that he did not witness 'mar-pit'. He also stated that even if the 'mar-pit' took place, he could not see the same due to darkness. DW-1 is Pabitra Kr. Das. He was cross-examined by the prosecution. He admitted that he did not witness 'mar-pit'. He also stated that even if the 'mar-pit' took place, he could not see the same due to darkness. In fact, as per his deposition, he saw accused Pranab Barman but does not know why there was exchange of words between accused Pranab Barman and Ratneswar Malakar. He stated noting about the alleged entry of Thaneswar Malakar in the house of Pranab Barman and his attempt to outrage the modesty of Pranab's wife in his absence. The other witness, DW-2, Smti. Anjali Das, deposed that she is the wife of accused Tapan Das and in absence of other family members, Thaneswar Malakar came to her residence and misbehaved with her. When she raised an alarm, her father-in-law Sri Krishna Das came and then Thaneswar Malakar fled away. Here is a marked contradiction in the evidence of DWs-1 and 2 inasmuch as according to DW-1, Thaneswar Malakar entered the house of Pranab Barman in his absence while according to DW-2, Thaneswar Malakar came to her house and misbehaved with her. This DW-2 never said in her deposition that Thaneswar Malakar outraged her modesty or attempted to commit rape on her. On the face of this contradictory and uncorroborated evidence of DWs-1 and 2, the defence story of alleged visit of Thaneswar Malakar and his attempt to outrage her modesty or attempted to commit rape on Pranab Barman's wife or Anjali Das, wife of Tapan Das, has become unbelievable. Again it should be noted that PW 2, Anjali Das is not the wife of Pranab Barman. The defence story is found to be as much false as afterthought. 15. The defence has not led any evidence to prove that Thaneswar Malakar by creating any nuisance near the house of the accused Appellants, provoked them, rather it is quite evident from the evidence that all the accused Appellants came to the scene armed with lathi, dao, iron rod, etc.. The way they gathered at the place of occurrence, amply proves that they came with a common intention to attack the informant's party and they have acted in furtherance of common intention i.e. to give a lesson to the informant's party. The way they gathered at the place of occurrence, amply proves that they came with a common intention to attack the informant's party and they have acted in furtherance of common intention i.e. to give a lesson to the informant's party. There is no doubt from the conduct of the accused Appellants that each of them had shared the said common intention and finally committed the criminal act by assaulting and causing death to the deceased. 16. The Apex Court in several cases had occasion to discuss and render judgment in regard to applicability of Section 34 IPC under various circumstances. Amongst other, I choose to refer to Parasa Raja Manikyala Rao and another vs. State of A.P. reported in (2003)12 SCC 306 . For better appreciation, I think it apt to quote paragraph No. 11 of the said judgment, as under: 11. The Section really means that if two or more persons intentionally do a common thing jointly, it is just the same as if each of them had done it individually. It is a well-recognized canon of criminal jurisprudence that the courts cannot distinguish between co-conspirators, nor can they inquire, even if it were possible as to the part taken by each in the crime. Where parties go with a common purpose to execute a common object, each and every person becomes responsible for the act of each and every other in execution and furtherance of their common purpose; as the purpose is common, so must be the responsibility. All are guilty of the principal offence, not of abetment only. In a combination of this kind a mortal stroke, though given by one of the party, is deemed in the eye of law to have been given by every individual present and abetting. But a party not cognizant of the intention of his companion to commit murder, is not liable, though he has joined his companion to do an unlawful act. The lending feature of this section is the element of participation in action. The essence of liability under this section is the existence of a common intention animating the offenders and the participation in a criminal act in furtherance of the common intention. The essence is simultaneous consensus of the minds of persons participating in the criminal action to bring about a particular result. 17. The essence of liability under this section is the existence of a common intention animating the offenders and the participation in a criminal act in furtherance of the common intention. The essence is simultaneous consensus of the minds of persons participating in the criminal action to bring about a particular result. 17. The above discussion based on appreciation of evidence and materials on record and consideration made in the light of decisions of the Apex Court, I find no ground for interference with the impugned judgment dated 27.07.2009 passed by the learned Addl. Sessions Judge, FTC No. 3, Kamrup, Guwahati, in Sessions Case No. 333(K) of 2003 convicting and sentencing the accused Appellants except to uphold the same. 18. Resultantly, this appeal stands dismissed. Registry shall return the records forthwith. Appeal dismissed.