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2012 DIGILAW 1710 (JHR)

Biswajit Das @ Raja v. State of Jharkhand

2012-12-11

D.N.PATEL, PRASHANT KUMAR

body2012
JUDGMENT Per D.N. Patel, J.-These appeals have been preferred by the accused-appellants against the judgment of conviction and order of sentence passed by the 1st Additional Sessions Judge, Jamshedpur, East Singhbhum in Sessions Trial No. 41 or 1998. The order of conviction is dated 2nd December. 2004 whereby these appellants have been punished for the offence punishable under Section 302 of the Indian Penal Code for life imprisonment and under Sections 147 and 148 of the Indian Penal Code for rigorous imprisonment for one year. They were acquitted from the charges under Sections 149 and 341 of the Indian Penal Code. The State has not preferred any acquittal appeal against the order of acquittal passed by the trial Court under Sections 149 and 341 of the Indian Penal Code. 2. It is the case of the prosecution that on 27th January, 1993 at about. 6.30 p.m. when the informant (PW 9) Satish Chandra Prasad and the deceased, namely, Rajesh Prasad and other prosecution witnesses were returning from Sarswati Puja, the accused persons came and assaulted with hockey sticks iron rods and bhujali (a sharp-cutting weapon) as well as by saw and they assaulted the deceased, they dragged him nearby Railway track and the deceased was so seriously beaten that he was taken to hospital by PW 9 and PW 8 where he expired. The First Information Report was registered on the same day. Investigation was carried out statements of several witnesses were recorded, charge - sheet was submitted and the case was committed to the Court of Sessions. Thereafter, on the basis of the evidence on record total eleven accused persons were tried in Sessions Trial No. 41 of 1998, out of which original accused Nos. 1, 4 and 11 were acquitted, whereas the present appellants were convicted mainly for the offence under Section 302 of the Indian Penal Code for life imprisonment and they were also convicted under Sections 147 and 148 of the Indian Penal Code for rigorous imprisonment for one year on each count and all these appellants were acquitted for the offence under Sections 149 and 341 of the Indian Penal Code. All these appeals have been preferred against the said judgment of conviction and order of sentence by the accused- appellants. 3. All these appeals have been preferred against the said judgment of conviction and order of sentence by the accused- appellants. 3. Accused Manoj Naha was minor who was tried by the Juvenile Justice Board vide G.R. No. 188 of 1993 and he was acquitted vide order dated 4th April. 2000. 4. We have heard the learned counsels appearing for the appellants who have mainly submitted that the learned trial Court has not appreciated the major omissions. contradictions and improvement by the prosecution witnesses in their depositions before the 'learned trial Court. They have also submitted that the. Investigating Officer has not been examined in this case which is fatal in nature because there is more than one place of scene of offence even as per the prosecution witnesses Moreover, not a single prosecution witness has pointed out the individual role played by the appellants-accused causing injury on the body of the deceased. Moreover, it is also vehemently contended by the learned counsels for the appellants that on the same set of evidence on record three accused have been acquitted, namely original accused Nos. 1, 4 and 11. Thus, there is no evidence of any of the prosecution witnesses to show what individual role played by any of the accused causing injury upon the body of the deceased and. Therefore, they have been acquitted from the charges of unlawful assembly under Section 149 of the Indian Penal Code as well as they are acquitted from the charges of wrongful restraints under Section 341 of the Indian Penal Code. Thus, all the appellants-accused could not have been convicted and punished for their individual action of causing murder of the deceased. It is also vehemently contended on behalf of the appellants-accused that the prosecution witnesses, who are narrated as eye-witnesses, are in fact not eye-witnesses at all and they are chance witnesses. There was darkness at the place of scene of the offence and there was no source of light and hence they could not have identified as many as the accused persons. There was darkness at the place of scene of the offence and there was no source of light and hence they could not have identified as many as the accused persons. Counsel for the appellants have also contended that once the appellants-accused are acquitted from the charges under Sections 149 and 341 of the Indian Penal Code and in absence of any acquittal appeal preferred by the State, the appellants cannot be punished for an offence punishable under Section 302 to be read with 147 and 148 of the Indian Penal Code by the appellate Court. This aspect of the matter has not been properly appreciated by the trial Court. They have also contended that two views are possible looking to the evidence on record and especially looking to the medical evidence given by PW 7 who is Dr. Akhilesh Kumar Choudhary that cause of death is mainly because of one injury and who caused that injury that is not proved beyond all reasonable doubts from the prosecution witnesses and therefore, the appellants-accused could not have been convicted for an offence under Section 302 of the Indian Penal Code. This aspect of the matter has not been properly appreciated by the trial Court and hence the judgment of conviction passed by the learned trial Court deserves to be quashed and set aside. Counsel for the appellants - accused has taken this part to the - deposition given by PW.7 and has pointed out certain injuries some of which are ante mortem in nature and some are post-mortem. So far ante mortem injury is concerned, it has been stated by PW 7 that some are simple in nature which are categorized as Category-B injuries. So far as Group-A injuries are concerned it is stated by PW 7 that one injury i.e. injury No.3 is a reason for the death of the deceased. In the light of these evidences it is submitted by the learned counsels for the appellants-accused that there are original accused who have been tried in Sessions Trial No. 41 of 1998 with same set of evidences on which three accused have been acquitted. In the light of these evidences it is submitted by the learned counsels for the appellants-accused that there are original accused who have been tried in Sessions Trial No. 41 of 1998 with same set of evidences on which three accused have been acquitted. One accused, who was juvenile, was also acquitted by the Juvenile Justice Board and those who are convicted, they are not convicted under Sections 149 and 341 of the Indian Penal Code and there is no cogent and convincing evidence before the learned trial Court nor even in the depositions given by the eye - witnesses stating there as to who caused the fatal injury which is injury No. 3 in Group-A as narrated by Dr. Akhilesh Kumar Choudhary who is PW 7. In this set of circumstances. The-appellants cannot be punished for an offence under Section 302 of the Indian Penal Code. This aspect of the matter has also not been properly appreciated by the learned trial Court and hence the judgment of conviction and order of sentence passed by the trial Court deserve to be quashed and set aside. Counsels for the appellants have also relied upon the decision rendered in 1997(2) All Patna Law Reporter, 406 and 2011(1) Eastern Criminal Cases 86 (SC). 5. We have heard the learned counsel for the State-APP who have vehemently submitted that the case of the prosecution is based on several eye-witnesses who are PW5, PW6, PW 8 and PW 9. Looking to their depositions, they have clearly - narrated the role played by the accused - appellants. They have caused several injuries upon the body of the deceased and the deceased was taken to hospital by PW 8 and PW 9 where he expired. Looking to their depositions no error has been committed by the trial Court in convicting the accused-appellants for an offence under Section 302 of the Indian Penal Code. It is also submitted by the State-APP that there is no reason why the evidence of PW 8 and PW 9 should not be believed by the Court. They have given their depositions in a natural way without any major omission or contradictions or improvements. It is also submitted by the State-APP that there is no reason why the evidence of PW 8 and PW 9 should not be believed by the Court. They have given their depositions in a natural way without any major omission or contradictions or improvements. It is further submitted by the counsels for the State that there is a charge against the accused-appellants under Section 149 of the Indian Penal Code and therefore, even if they are acquitted but looking to the evidences on record, they can be punished by this Court for an offence under Section. 302 read with 149 of the Indian Penal Code. Counsel for the State is relying upon the decisions reported in (2009) 12 S.C.C. 546 and (1991)1 S.C.C. 519 and it is submitted that in the light of these evidences on record of eye-witnesses, no error has been committed by the trial Court in convicting the accused-appellants and therefore, these appeals may not be entertained by this Court. 6. Having heard learned counsel for both the sides and looking to the evidences on record it appears that the whole incident has taken place on 27th January, 1993 at about 6.30 P.M. When PW 8 and PW 9 were going along with his brother namely Rajesh Prasad the accused persons assaulted brother of the informant, namely, Rajesh Prasad and he was dragged nearby the Railway line. He was severally beaten by the accused persons as well as both accused who were tried in the Sessions Trial and also by one juvenile. He sustained several injuries and PW 8 and PW 9 took Rajendra Prasad at the hospital where he expired. PW 8 is the informant and there are eye-witnesses of the incident. 7. Looking to the depositions given by PW 5, PW 6, PW 8 and PW 9 and their cross-examination it appears that they have not assigned any individual role in the crime nor have assigned any individual role to the acquitted accused. With same set of evidences original accused Nos. 1, 4 and 11 were acquitted. The case of the present appellants is similar to those who are acquitted. 8. Also looking to the evidence of PW 5, PW 6, PW 8 and PW 9, the learned trial Court has acquitted these accused-appellants from the charges under Sections 149 and 341 of the Indian Penal Code. 1, 4 and 11 were acquitted. The case of the present appellants is similar to those who are acquitted. 8. Also looking to the evidence of PW 5, PW 6, PW 8 and PW 9, the learned trial Court has acquitted these accused-appellants from the charges under Sections 149 and 341 of the Indian Penal Code. Thus, the unlawful assembly with common object is not established by the prosecution beyond all reasonable doubts. Against this acquittal there is no acquittal appeal preferred by the State. In this set of evidences on record they have been punished by the trial Court for an offence under Section 302 of the Indian Penal Code and, therefore we have to examine the individual role of the accused appellants. Looking to the evidence given by PW 7 who is Dr. Akhilesh Kumar Choudhary. The following are the injuries sustained by the decease. This witness has carried out post-mortem examination of the dead body of the deceased. The post-mortem note is Ext.2 in the. Sessions Trial, The injuries found by this witness are as follows : "Group A-Sharp cut- (i) Over Medical aspect of right legal middle vertically placed 2 cm x 1 cm x bone deep. (ii) Over inner aspect of upper lip right side 4c x 3c x muscle deep upper jaw having cut fracture which central incisor of left side and half incisor of right cut through lits roots and missing. (iii) Over lateral aspect of the neck right side 2 1/2 cm x 2 cm x muscle deep with severance of internal jugular vein on right side underneath the wound. Group B : Abrasion- (i) Two abrasion-over back of trunk lumber area right side x 1 cm x 1 cm and 1 cm x 1 cm." Group C-Post mortem abrasion over anterior surface of lower third of right arm. 3. Opinion:- (1) The above noted injuries except in Group C are ante-mortem in nature. Injuries in Group A caused by sharp cutting weapon may be by bhujali whereas injuries in Group B caused by hard and blunt substance and injuries in Group B in the ordinary course of nature and not sufficient to cause death. (2) Death was due to haemorrhage and shock from severance of Mogul internal jugular vein. Time since death within 40 to 48 hours from the time of post-Mortem in a natural case." 9. (2) Death was due to haemorrhage and shock from severance of Mogul internal jugular vein. Time since death within 40 to 48 hours from the time of post-Mortem in a natural case." 9. In view of the aforesaid injuries it is stated by PW 7 Dr. Akhilesh Kumar Choudhary at Para.3 (l) of the deposition that Group-A injuries can be caused by sharp cutting weapon. Group-B injuries can be caused by hard and blunt substance and the injuries are not sufficient to cause death of the deceased in ordinary course of nature. Group-C injury is post-mortem injury. He has also given his opinion in paragraph 3(2) of his deposition that the death of the deceased was caused due to haemorrhage and shock as a consequence of severance of right internal jugular vein. Thus, only one injury is a cause of death of the deceased. 10. Thus, the question before us is who caused the fatal injury upon the body of the deceased. Once the charge of unlawful assembly is not proved beyond reasonable doubt and in absence of any acquittal appeal by the State this Court has to examine the individual role played by the accused-appellants. Looking to the deposition of PW 5, PW 6, PW 8, PW 9 and looking to their cross-examination also, they have failed to prove who is the appellant who has caused fatal injury as narrated by PW 7. 11. It also appears from the evidence on record of the aforesaid prosecution witnesses that the sharp cutting instruments were in the hands of other accused appellants, namely, Bishwajit Raha @ Bishu and Manoj Bhattacharjee @ Laloo and also in the hand of Manoj Naha who is a juvenile. Looking to the deposition of the eye-witnesses, not a single eye-witness has stated that these three accused have caused that fatal injury as narrated by PW 7 Dr. Akhilesh Kumar Choudhary, Minor Manoj Naha is already acquitted by the Juvenile Justice Board-Before us left are appellants Bishwajit Raha @ Bishu and Manoj Bhattachatjee @ Laloo in the aforesaid criminal appeals. So far rest of the appellants in the criminal appeals are concerned they were also having hard and blunt substance in their hands namely. Akhilesh Kumar Choudhary, Minor Manoj Naha is already acquitted by the Juvenile Justice Board-Before us left are appellants Bishwajit Raha @ Bishu and Manoj Bhattachatjee @ Laloo in the aforesaid criminal appeals. So far rest of the appellants in the criminal appeals are concerned they were also having hard and blunt substance in their hands namely. Hockey Sticks and Tarak Ghosh was having a iron rod, but looking to the depositions given by PW 8 and PW 9, who are star prosecution witnesses, in paragraph 10 of the deposition of PW 8 and in paragraph 9 of the deposition of PW 9, they have not seen who is the one accused who has caused such injury upon the body of the deceased and by which weapon. Thus, no individual role has been assigned for causing injury upon the body of the deceased and especially fatal injury as narrated by PW 7. Some of the accused have used only hard blunt substance and as per the medical evidence the injuries which are narrated in Group-B are simple in nature and they are not sufficient to cause death of the deceased in ordinary course of nature. In this set of evidences the prosecution has failed to prove the offence beyond all reasonable doubts that the appellants have caused fatal injury upon the body of the deceased so that the deceased has expired. This aspect of the matter has not been properly appreciated by the trial Court and hence the judgment of conviction and order of sentence passed by the trial Court deserve to be quashed and set aside. The judgment cited by the counsel for the State-APP are not applicable to this case as the facts and circumstances of those cited cases and the facts of the present case are absolutely different. Here is the specific charge under Section 149 of the Indian Penal Code upon the accused - appellants and there is honourable acquittal from the charges under Sections 149, 341 of the, Indian Penal Code and the present appellants are only guilty of committing murder and therefore in absence of any appeal against the acquittal or any other appeal against the acquittal part of the judgment makes the present case different from the aforesaid cited case. 12. 12. In the facts and circumstances discussed above these criminal appeals are allowed and the impugned judgment of conviction dated 02.12.2004 and order of sentence dated 03.12.2004 passed by the 1st Additional Sessions Judge. Jamshedpur, East Singhbhum in Sessions Case No. 41 of 1998 are quashed and set aside. All the appellants are acquitted from the charges levelled against them. Since the accused – appellants, namely Tarak Ghosh, Apurba Majumdar Biswajit Das @ Raja Biplab Das @ Babloo Das @ Bhabhi. Rakesh Ghosh @ Soibal Ghosh and Abhijeet Dey @ Bappa Dey, are on bail they are discharged from the liability of their respective bail bonds and their sureties are also discharged from liability. Since the appellants, namely, Manoj Bhattacharjee @ Laloo and Bishwajit Raha @ Bishu are in judicial custody, they are directed to be released forthwith if not wanted in any other case. Appeals allowed.