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2012 DIGILAW 934 (GAU)

Bogadhar Munda v. State of Assam

2012-08-06

ADARSH KUMAR GOEL, PRASANTA KUMAR SAIKIA

body2012
JUDGMENT P.K. Saikia, J. 1. This jail appeal is directed against the judgment dated 05.10.07 passed by the learned Sessions Judge, Dibrugarh in Sessions Case No. 51/05 convicting accused/appellant under Section 302/34 IPC and sentencing him to suffer imprisonment for life and to pay a fine of Rs. 5000/- in default S.I. for further period of 15 days. Being aggrieved by and dissatisfied with, accused/appellants preferred this present appeal. 2. The facts necessary for disposal of the present appeal, in short, are that on 03.06.01 at about 5 pm, accused Bogadhar Munda along with his son Rajen Munda and one Bhadra Munda came to the house of Bhagat Orang and killed the later in his own house planting a knife blow on his chest. An FIR to this effect on being lodged by one Rupa Orang with I/C Bamunbari Police Outpost, the I/C thereof made a GD entry on the FIR received and forwarded the same to O/C, Moran Police Station for registering a case in accordance with law and for doing further needful. 3. In the meantime, the I/C Bamunbari Police Outpost took up the investigation, visited the place of occurrence, held inquest on the dead body and sent the same to hospital for post mortem examination, prepared the sketch map of the place of occurrence, arrested accused Bogadhar Munda, examined the witnesses and did other needful and on completion of the investigation, he submitted charge sheet against the accused person showing Bhadra Munda as absconder. As Rajen Munda was found to be juvenile in conflict with law, hence, the case against him was forwarded to the Juvenile Court for disposal of the same in accordance with law. 4. The Magistrate, before whom the charge sheet was so laid, committed the case to the Court of Sessions as the offence under Section 302 IPC is exclusively triable by the Court of Sessions. Learned Sessions Judge after commitment of the case and on hearing the parties, framed charge under Section 302 IPC and charge, so framed, on being read over and explained to the accused person, he pleaded not guilty and claim to be tried. 5. During trial, the prosecution side has examined as many as 10 witnesses including the Medical Officer who conducted autopsy on the dead body of the person aforesaid. The statement of the accused person under Section 313 CrPC was recorded. 5. During trial, the prosecution side has examined as many as 10 witnesses including the Medical Officer who conducted autopsy on the dead body of the person aforesaid. The statement of the accused person under Section 313 CrPC was recorded. Accused plea was of total denial. However, on being required, he declined to adduce any evidence of his own. On the conclusion of trial and after hearing the parties, learned Trial Court held the accused of offence under Section 302/34 IPC, convicted him there-under and sentenced him to punishment as aforesaid. It is that judgment which has been assailed herein this appeal. 6. Opening up the argument on behalf of the accused/appellant, Mr S.K. Ghosh, learned Amicus Curiae has submitted that there was absolutely no evidence on record to show that the death of deceased on the evening of 03.06.01 at his own house was caused by any of the persons, arraigned as accused in the case under scrutiny, much less, same being committed one of the accused persons, namely, Bogadhar Munda,Bhadra Munda and Rajen Munda, in furtherance of their common intention. 7. Inspite of the above above, learned Trial Court came to the conclusion that prosecution has successfully proved the charge that accused Bogadhar Munda in furtherance of common intention of other two accused persons, intentionally caused the death of the person aforesaid in his own house on the evening of 03.06.01 and he, therefore, urges this Court to set aside the judgment of the Trial Court on acquitting the accused/appellant of the offence under Section 302 IPC. 8. On the other hand, Mr D. Das, learned Addl. PP, Assam supporting the judgment rendered by the Trial Court, argues that the evidence of PWs clearly reveals that the accused along with his son and his brother came to the P.O., got involved in a quarrel with the deceased, planted a knife blow on his chest and intentionally killed him at his own house. The circumstantial evidence which emerges from the testimonies on record further shows that accused persons have committed the murder of the deceased on the evening aforesaid in furtherance of common intention of all. Above being the position, he urges this Court to dismiss the appeal and affirm the judgment of the Trial Court. 9. We have given our anxious consideration to the rival submissions placed before this Court. Above being the position, he urges this Court to dismiss the appeal and affirm the judgment of the Trial Court. 9. We have given our anxious consideration to the rival submissions placed before this Court. However, before we appreciate such argument on merit, we find it necessary to have a brief review of evidence on record and for this purpose, the evidence of Doctor is first taken up for consideration. Dr. R.K. Gogoi, was the man who reportedly conducted the autopsy on the dead body of the deceased at Dibrugarh Medical College and Hospital on 04.06.01. 10. According to him, on 04.06.01, he conducted the post mortem examination on the body of one Bhagat Orang on being identified by Police personnel as well as the relatives of the deceased and found the followings:- A made dead body dark-brown complexion, average built. Rigormortis was present all over the body, faint red fluidy discharge present on the nostrils. Post mortem hypostesis present on the back and fixed. INJURIES 1. One spindle shaped stab injury measuring 3 x 1 cm into chest cavity deep present in front of uppermost part of left from midline and just below the medial end of left clavicle eiercing 2nd left intereostal space, uppermost part of upper part of upper lobe of left lung and then the heart. Blood clots are found firmly adherent along with the track of wound. Pleurae - pierced along stab injury on left side. Contused around left thoracic cavity contained about one and half litres of blood. Left Lung - stab injury as described. The lung was pale and collapsed. Pericardium - pierced along stab injury of the hearth. Heart- stab injury along atrio ventricular junction on anterior aspect. In the opinion of Doctor, the cause of death was shock and hemorrhage as a result of stab injury sustained on the left side of chest as described. The injuries were ante mortem and caused by sharp cutting pointed weapon. Ext. is the post mortem report. In the cross examination, Doctor admitted that there was only one injury on the body of the deceased. All other organs were normal and healthy. 11. The evidence of Doctor, therefore, clearly shows that the wound, found on the body of the deceased was ante mortem and such wound occasioned the death of the deceased which was homicidal in nature. In the cross examination, Doctor admitted that there was only one injury on the body of the deceased. All other organs were normal and healthy. 11. The evidence of Doctor, therefore, clearly shows that the wound, found on the body of the deceased was ante mortem and such wound occasioned the death of the deceased which was homicidal in nature. This aspect of the prosecution case has not been disputed by the defence either. 12. Now, let us see, who occasioned the death of deceased on the evening of 03.06.01. In order to prove the allegation, brought against the accused person, the prosecution side, as stated above, examined other 9(nine) witnesses including the I/O. On perusal of the materials on record, we have found that the only witness who claims to have seen the incident under consideration was one Smti. Atuari Orang, wife of (L) Bhagat Orang. Being so, before putting the other evidence on record to test, evidence of PW 2 (Atuari Orang), is taken up for consideration. 13. According to PW 2 (Atuari Orang), on the fateful evening at about 5 pm, she was inside her house. Her husband (Bhagat Orang) was in the courtyard. Precisely, at that time, accused Bogadhar Munda, Rajen Munda and Bhadra Munda came to their house and started arguing with her husband. Accused Bogadhar Munda then stabbed him with a sharp weapon on his chest and left the place of occurrence. Her husband died then and there. PW 2 got shock so much so that she lost her consciousness. 14. Later on, when her son-in-law Rupa Orang came to such place, she reported the matter to him. In her cross examination, she has admitted that she could not properly hear the altercation between her husband and the accused persons since she was inside her house at that time. It is also her evidence that when she came out of her house on hearing utterance made by her husband, she found her husband lying dead in their courtyard. 15. Sri. Rupa Orang was examined as PW 1. According to him, on the fateful evening, he came to the house of his father-in-law and found him dead in his courtyard. He came to know about the incident from the neighboring people and he thereafter, went to the Police Station and lodged an FIR. On being so informed, Police came to the place of occurrence. 16. According to him, on the fateful evening, he came to the house of his father-in-law and found him dead in his courtyard. He came to know about the incident from the neighboring people and he thereafter, went to the Police Station and lodged an FIR. On being so informed, Police came to the place of occurrence. 16. In due course, having found the body of the deceased in his courtyard, Police conducted an inquest on the same. The inquest report was proved as Ext.2. In his cross examination, he has admitted that he did not know what was written in the FIR, as the same was not read over to him. He also did not know who killed his father-in-law. 17. PW 3 Mina Orang is the wife of PW 2 (Rupa Orang). According to her, on the fateful day, she along with her husband came to the house of her father. Arriving there, she found her father lying dead in his courtyard. On seeing her father dead, she started crying in pain. Her husband lodged an FIR with the Police. In her cross examination, she admitted that she did not know who killed her father. 18. PW 4 Sri Riton Kurmi, a cultivator, deposes that on the fateful day in the evening, he heard hue and cry coming from the residence of the deceased. He immediately went there. Police also came to the house of the deceased and conducted an inquest on his body and the report prepared in that connection was proved as Ext.2. In his cross examination, he admitted that he did not know how Bhagat Orang met his death. 19. PW 5 Sri Shankar Sawachi, a day labourer, deposes that on the fateful day, in the evening, he came to the house of the deceased and found Police there, who conducted an inquest on the dead body and in that connection, Police prepared an inquest report which was proved as Ext.2. In his cross examination, he admitted that he did not know how the deceased met his death. 20. In his cross examination, he admitted that he did not know how the deceased met his death. 20. PW 6 Sri Bhugaswar Sawachi, also a businessman, deposes that on the fateful day, in the evening, he came to the house of Bhagat Orang and saw Police recovering some articles which later seized on the strength of seizure list Ext.3 but he did not know wherefrom those articles were recovered or who handed over the same to the Police. 21. PW 8 Sri Bidya Orang is also a businessman. He deposes that on the fateful day, in the evening, Police came to the house of deceased and seized some articles. On being required, he put his signature on the paper but he did not know for what purpose his signature was so obtained. In his cross examination, he has stated that he did not know how the deceased met his death. 22. PW 9 Sri Giridhar Bora, S.I. of Police, deposes that on 03.06.01, he was posted at Bamunbari Police Putpost as I/C of the same. On that day, he received an FIR from Rupa Orang. He then made a GD entry thereon and forwarded the same to the O/C Moran Police Station. He himself took up the investigation. During the course of investigation, he went to the place of occurrence and found a body of the deceased lying in his court yard. 23. He conducted an inquest on the dead body next day in the morning and prepared a report in that connection which was proved as Ext.2. He thereafter sent the dead body for post mortem examination and also prepared the sketch map of the place of occurrence which was proved as Ext.5. As investigation progresses, he arrested the accused person and on being produced by him, he seized the weapon of offence on the strength of Ext.3. 24. However, other accused, viz, Bhadra Munda could not be arrested as he absconded after the incident aforesaid. But before he could complete the investigation, he was transferred and as such, he handed over the case diary to his successor for doing further needful. One Munin Saikia, S.I. of Police, completed the remaining part of the investigation and submitted charge sheet against the accused person. In his cross examination, the suggestion that Bogadhar Munda did not produce the Khukri was denied by him. 25. One Munin Saikia, S.I. of Police, completed the remaining part of the investigation and submitted charge sheet against the accused person. In his cross examination, the suggestion that Bogadhar Munda did not produce the Khukri was denied by him. 25. Above being the evidence on record, let us see how far such evidence makes out the allegation brought against the accused person. Undoubtedly, the main campaigner from the prosecution side is none other than PW 2, who claims to have seen the incident under consideration. On scrutiny of her evidence, we have found that Smti. Atuari Orang, wife of the deceased, has stated in her examination in chief that accused Bogadhar Munda injured her husband by planting a knife blow on his chest. 26. However, very interestingly, in her cross examination, she admitted that she did not witness who actually planted the blow on the chest of her husband on the evening aforesaid, as she was inside her house at that particular moment. It is also in her evidence that when she came out of her house, she found her husband lying dead in their courtyard. The evidence, so rendered by PW 2 unmistakably demonstrates that claim of PW 2 that she saw the alleged incident with her own eyes cannot be treated as truthful one in view of the evidence which she tendered in her cross examination. Being so, we are to conclude that even PW 2 did not witness the incident in question. 27. The fact that she also slipped to swoon on seeing her husband dead in her courtyard further demonstrates that she had no idea about the aftermath of the incident in question. It is worth noting that the learned Trial Court too did not believe the claim of PW 2 that she witnessed the alleged incident. The Trial Court also did not believe that fatal blow was administered by accused Bogadhar Munda as alleged by the prosecution. 28. However, learned Trial Court on the materials on record, came to the conclusion that accused Bogadhar Munda, Rajen Munda and Bhadra Munda came to the place of occurrence on the evening in question and they came there with the common intention of killing the deceased and in pursuance of such common intention, one of them planted a knife blow on the chest of the deceased killing him at his courtyard instantaneously. Now, let us see how far such conclusion of the Trial Court finds favour from the materials on record. 29. Here, it may be mentioned that Section 34 IPC has been enacted to meet a situation where a member of the party acted in furtherance of common intention of all but it is difficult to establish exactly the part played by each of them. But Section 34 IPC makes a person vicariously liable for the conduct of others if such act was done in furtherance of common intention of all and in that event, it is not necessary to prove the part played by each and every one of a party consisting of two or more persons. 30. Again intention of a person being a state of mind can hardly be proved by direct evidence. Being so, intention of persons needs to be ascertained from surrounding circumstances as well as conduct of the accused person(s) before and after the crime as well as during the time when the crime was underway. That is why what the accused had said during the periods aforesaid, what he had done around the same time and how he had behaved towards the victim and other persons are relevant as they tend to show his state of mind at all the relevant time. 31. Coming back to our case in hand, we have found that the Trial Court has rightly concluded that it cannot be ascertained as to the person who planted the blow on the chest of the deceased in his house on the evening of 03.06.01. But then, the conclusion of learned Trial Court that accused came to the place of occurrence with the common intention of killing the deceased and that one of accused persons killed the deceased in furtherance of common intention of all is found to be without any basis. 32. On our careful perusal of materials on record, we have found that there is absolutely no evidence on record to show as to how accused persons had behaved before and after crime or while the crime in question was going on. There is also no evidence on record either to show as to who actually carried the alleged weapon of offence or whether other accused persons who accompanied the actual perpetrator of crime had any knowledge about his carrying such a weapon with him. 33. There is also no evidence on record either to show as to who actually carried the alleged weapon of offence or whether other accused persons who accompanied the actual perpetrator of crime had any knowledge about his carrying such a weapon with him. 33. Here, it is worth noting that in her cross examination, PW 2 had stated that coming out of her house hearing hue and cry outside, she found her husband lying dead in their courtyard. She got shock so much so that she instantly lost her consciousness. If that be the position, the claim of PW 2 that accused persons came to her house and got involved in a quarrel with her husband are also found be equally doubtful, more so, when she could not properly hear the altercation between the parties aforesaid. 34. These speak loud and clear that allegation of accused persons committing the offence on the evening aforesaid in furtherance of their common intention is without any basis. The fact that PW 2 could not say anything as to why the parties got involved in a quarrel on the evening aforesaid doubly affirms our conclusion that prosecution could not establish its claim that offence in question was committed in furtherance of common intention of accused Bogadhar Munda, Rajen Munda and Bhadra Munda 35. In view of what we have discussed herein before and what have emerged there-from, we are of the opinion that prosecution could not establish that on 03.06.01,one of the accused persons, namely, Bogadhar Munda, Rajen Munda and one Bhadra Munda killed the deceased in furtherance of common intention of all. Therefore, we are of the considered view that prosecution could not establish the charge under Section 302/34 IPC against the accused/appellant and as such, he is acquitted of the same. 36. In the result, the appeal is allowed and the judgment of the Trial Court is set aside on acquitting accused/appellant Bogadhar Munda of the offence under Section 302/34 IPC. He be released forthwith if not required in any other case(s). 37. Return the LCR. 40. 38. We appreciate the assistance rendered by Mr S.K. Ghosh, learned Amicus Curiae and direct that an amount of Rs. 5000/- be paid to Mr S.K. Ghosh, as his remuneration by the State Legal Services Authority. He be released forthwith if not required in any other case(s). 37. Return the LCR. 40. 38. We appreciate the assistance rendered by Mr S.K. Ghosh, learned Amicus Curiae and direct that an amount of Rs. 5000/- be paid to Mr S.K. Ghosh, as his remuneration by the State Legal Services Authority. In view of the provision prescribed by Section 357(A) Cr.P.C. the victim or his/her dependents are entitled to get compensation for rehabilitation in appropriate cases. Therefore, for the sake of brevity and in the light of our discussions, made in Criminal Appeal No. 93(J)/2005 (disposed on 22.12.2011), with regard to the victim compensation as provided by Section 357(A) Cr.P.C., we make the following directions:- 1. As an interim measure an amount of Rs. 50,000/- shall be deposited by the State Government with the District Legal Services Authority of Dibrugarh District within a period of two months from this date. The District Legal Services Authority, on receipt of the said money, shall make an enquiry to ascertain as to whether, there is dependent(s), who suffered loss and injury as a result of death of the deceased and if such dependant(s) or legal representative(s) need any rehabilitation. 2. Upon such enquiry, if it is found that the dependent(s), if any, need rehabilitation, then the District Legal Service Authority shall initially release the said interim amount and thereafter direct payment of adequate compensation, as may be prescribed by the scheme to be prepared by the State Government. 3. It is made clear that if the District Legal Services Authority, after due enquiry, arrives at the findings that there is no dependent(s) or that the dependant(s) of the deceased/victim does not required any rehabilitation, then the District Legal Services Authority, shall refund the said amount of Rs. 50,000/- without delay, in favour of the State Government. 4. A copy of this judgment be made available to (1) Chief Secretary, Govt. of Assam, (2) Secretary, State Legal Services Authority Assam and (3) District Legal Services Authority Dibrugarh for doing needful as indicated above.