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2013 DIGILAW 89 (GAU)

Puni Das v. State of Assam

2013-02-06

I.A.ANSARI, P.K.MUSAHARY

body2013
I.A. Ansari, J.- This is an appeal against the judgment and order, dated 26.03.2012, passed, in Sessions Case No. 92 of 2007, by the learned Additional Sessions Judge (FTC), Dibrugarh, convicting the present three accused-appellants, namely, Puni Das, Ajanta Das and Rajanta Das @ Pape, under Section 304 read with Section 34IPC and also under Section 326 read with Section 34 IPC and sentencing each of the three accused-appellants to undergo, for their conviction under Section 304 read with Section 34 IPC, imprisonment for life and pay fine of Rs. 1,000/- and, in default of payment of fine, suffer rigorous imprisonment for a period of three months. No separate sentence was ordered against the accused-appellants as regards their conviction under Section 326 read with Section 34 IPC. 2. The prosecution's case, as unfolded at the trial, may, in brief, be described thus: The informant (PW.6), Haren Danguria, was informed, on 12.01.2006, at about 4.00 p.m., by one Tikira Das that the informant's nephew, namely, Rajib Danguria, had gone to paddy field in search of his cow and the present three appellants, Smt. Puni Das, Ajanta Das, Rajenta Das @ Pape and two others, namely, Duma Das and Ananta Das had attacked Rajib Danguria with sharp cutting weapons seriously injuring him. On being so informed, PW.6 went to the place of occurrence and, having found Rajib Danguria lying seriously injured, carried him to Assam Medical College Hospital, Dibrugarh; but on arrival there, the said injured was declared to be dead. Following the death of Rajib Danguria, an Ejahar, in writing, was lodged by PW.6 (Haren Danguria). Treating the said Ejahar, as First Information Report (in short 'FTR'), Rohmoria Police Station Case No. 2 of 2006, under Sections 147/148/149/326/302 IPC, was registered against the present three accused-appellants and the said Ananta Das and Durna Das. During the course of investigation, police visited the place of occurrence, held inquest over the said dead body and also seized axe from the house of accused Puni Das. On completion of investigation, police laid charge-sheet, under Sections 147/148/326/302 IPC, against the three accused-appellants, namely, Puni Das, Ajanta Das, Rajenta Das @ Pape and the said Ananta Das and the said Durna Das. As accused Durna Das absconded, the trial proceeded against the remaining accused persons, namely, Puni Das, Ajanta Das, Rajanta Das @ Pape and the said Ananta Das. 3. As accused Durna Das absconded, the trial proceeded against the remaining accused persons, namely, Puni Das, Ajanta Das, Rajanta Das @ Pape and the said Ananta Das. 3. At the trial, when charges, under Sections 147,148,326 and 302 read with Section 149 IPC, were framed against the accused-appellants and the said Ananta Das, all of them pleaded not guilty thereto. 4. In support of their case, prosecution examined altogether 10 (ten) witnesses. The three accused-appellants and their co-accused, Ananta Das were, then, examined under Section 313 Cr.PC and, in their examinations aforementioned, they denied that they had committed the offences, which were alleged to have been committed by them, the case of the defence being that all the accused, who had been facing trial, were innocent. 5. Having found Ananta Das not guilty of any offence, the learned trial Court acquitted him accordingly. The learned trial Court also found the present three appellants not guilty of the offences under Sections 147, 148 and 326 read with Section 149 IPC and acquitted them accordingly. The learned trial Court, however, having found the present three appeals, namely, Puni Das, Ajanta Das and Rajanta Das @ Pape guilty of the offences, under Sections 302 and 326 read with Section 34 IPC, convicted them accordingly and passed sentence against him as mentioned above. Aggrieved by their conviction and the sentence passed against them, the convicted persons have preferred these appeals. 6. We have heard Ms. R.D. Mazumdar, learned Amicus Curiae, in Crl. A. 32 (J) 2012, Mr. R. Adhikari in Crl. A 34 (J) 2012 and Ms. S. Khataniar in Crl. A. 35(1)2012. We have also heard Mr. D. Das, learned Additional Public Prosecutor, Assam. 7. While considering the present appeal, it needs to be pointed out that we are aghast by the manner in which the learned Court has held the trial and passed the impugned judgment. To begin with, we may point out that while at para 26 of the Judgment, which stands impugned in these appeals, the learned trial Court acquitted the accused-appellants of the charges, which had been framed against them under Sections 147,148 and 326 read with Section 149 IPC, they were, again, while being convicted under Section 302 read with Section 34 IPC, convicted under Section 326 IPC too. When the accused-appellant and her co-accused already stood convicted under Section 302 read with Section 34 IPC for having intentionally caused death of Rajib Dangaria, they could not have been convicted for the grievous injuries, which had been allegedly caused by them on the person of Rajib Dangaria when the injuries had led to the death of Rajib Dangaria. The conviction of the three accused-appellants under Section 326 IPC is, in the facts and attending circumstances of the present case, wholly misconceived. 8. We are also disturbed by the fact that the learned trial Court did not assign any reason whatsoever as to why it found the present three accused-appellants not guilty of offences under Sections 147 and 148 IPC except that Ananta Das was not proved present at the place of occurrence. Merely because the number of accused persons facing trial is found less than 5 (five), it cannot become a reason for taking aid of Section 34 IPC for the purpose of convicting an accused, who faces trial. For the purpose of applying Section 149, there must be an unlawful assembly and such an assembly must be formed with one of the objects as has been enumerated in Section 141 IPC. Section 149 IPC comes into play, when an offence is committed in prosecution of the common object of an unlawful assembly; whereas Section 34 IPC can be applied if an offence is committed by more than one accused in furtherance of their common intention. There is irreconcilable difference between the meaning of the two expressions, "in prosecution of common object" and "in furtherance of common intention". 9. The learned trial Court, in the case at hand, ought to have pointed out as to how it was concluded that Section 34IPC was applicable to the facts of the present case. For the purpose of arriving at the conclusion, which the learned trial Court has reached, that the three accused-appellants were guilty of the offence under Section 302 read with Section 34 IPC, not a word has been used by the learned trial Court to explain as to why it found the accused-appellants guilty of the offence under Section 302 IPC by taking aid of Section 34 IPC. 10. Coupled with the above, we also notice, to our dismay that the examinations of the accused-appellants, under Section 313 Cr.P.C., have been wholly perfunctory. 10. Coupled with the above, we also notice, to our dismay that the examinations of the accused-appellants, under Section 313 Cr.P.C., have been wholly perfunctory. Every piece of evidence, which appears to a Court incriminating, must be put to the accused and his response be sought thereto. An accused remains free not to give any reply to the incriminating pieces of evidence, which have been put to him, but the Court is vested with the power, under Section 313 Cr.P.C-, to draw its own inference even from the silence of the accused. When a piece of incriminating piece of evidence is not put to an accused, such a piece of evidence cannot be taken into consideration for the purpose of basing conviction of the accused. Observed the Supreme Court in State of Maharashtra vs. Sukhdeo Singh ( AIR 1992 SC 2100 ), that at the stage of examination under Section 313 Cr.P.C., the Court does not sit on the Judgment of the prosecution's case and, however, weak or scanty may be the evidence against the accused, every piece of evidence, which appears to be incriminating shall be put to the accused (See also Sharad Birdichand Sarda vs. State of Maharashtra reported in (1984) 4 SCC116). 11. In the case at hand, we find that the learned trial Court has not put to the accused-appellants, various incriminating pieces of evidence, which came on record against the accused-appellants and which has been relied upon by the learned trial Court for arriving at the conclusion of guilt against the accused-appellants. This is wholly impermissible in law. 12. At the same time, we are conscious of the fact that if we set aside the conviction of the accused-appellants, and set her at liberty, prosecution may be seriously prejudiced inasmuch as the prosecution has no role to play in the examination of an accused under Section 313 (1)(b) Cr.P.C. For the omission, on the part of the learned trial Court, the State and the victim cannot be made to suffer. 13. Coupled with the above, we have already noted above that the prosecution's case, as unfolded by the FIR, is that it was one Tikira Das, who had informed PW.6, Haren Dangaria, that Rajib Dangaria had been assaulted by the accused named in the FIR and injured him. The said Tikira Das was not examined at the trial by the prosecution. 14. The said Tikira Das was not examined at the trial by the prosecution. 14. Undoubtedly, in the face of the facts of the present case, Tikira Das was a material witness. Prosecution offered no explanation for his non-examination and no explanation is discernible, in this regard, from the evidence on record either. The learned trial Curt ought to have, in the facts and attending circumstances of the present case, taken recourse to its power embodied under Section 311 Cr.P.C. and examined the said Tikira Das. Here again, the learned trial Court has failed. It needs to be remembered that a trial Judge is not merely a recording machine of evidence. The trial judge has to participate in the trial and ensure that every relevant fact is brought on record so that a legally sustainable decision is reached and justice is done. 15. Because of various infirmities with which we find that the trial of the accused-appellants had suffered from, we are clearly of the view that the conviction of the three accused-appellants by the judgment and order under appeal cannot be sustained and must be interfered with. At the same time, we are also alive to the situation that while the conviction of the accused-appellant be set aside, the case be remanded to the learned trial Court for examination of the said Tikira Das and, then, to dispose of the case in accordance with law. 16. Because of what have been discussed and pointed out above, this appeal partly succeeds. While the conviction of the accused-appellants and the sentence passed against them are hereby set aside, the case is remanded for trial, in accordance with law, to the learned Court below by calling the said Tikira Das as a Court witness and by doing the needful. Notwithstanding the fact that the conviction of the accused-appellants and the sentence passed against them have been set aside, they shall not be released on bail during pendency of the trial. We, therefore, direct that notwithstanding the fact that these appeals have been partly allowed as indicated hereinbefore, the accused-appellants shall not be allowed to go on bail during the pendency of the trial, which shall be concluded expeditiously and preferably within 3 (three) months from the date of receipt of a copy of this judgment and order. 17. We, therefore, direct that notwithstanding the fact that these appeals have been partly allowed as indicated hereinbefore, the accused-appellants shall not be allowed to go on bail during the pendency of the trial, which shall be concluded expeditiously and preferably within 3 (three) months from the date of receipt of a copy of this judgment and order. 17. Let the three Amicus Curiae be paid a sum of Rs.5,000/- each for their valuable assistance rendered to this Court. 18. Send back forthwith the LCR with a copy of this judgment and order