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2015 DIGILAW 367 (GAU)

Laldas Karmakar v. State of Assam

2015-03-25

B.K.SHARMA

body2015
ORDER (ORAL) 1. This appeal is directed against the judgment of conviction dated 15/07/2006 of the learned Additional Sessions Judge No.1, Fast Track Court, Tinsukia, passed in Sessions Case No. 51(M)/2005, convicting the 2(two) accused appellants, namely, Sri Laldas Karmakar and Sri Somaru Koya under Section 147/148/336/323 IPC and sentencing them to undergo R.I. for 2 years under Section 147 IPC with fine of Rs. 500/- and in default to undergo S.I. for further 3 months ; RI for 2 years under Section 148 IPC with fine of Rs. 500/- and in default, S.I. for 3 months; to undergo R.I. for 3 months under Section 336 IPC with fine of Rs. 200/- and in default to undergo further S.I. for one month and to undergo R.I. for 1 year under Section 323 IPC with fine of Rs. 1000/- and in default to undergo S.I. for further 3 months. 2. Pengeree P.S. Case No. 53/2002 was registered on 17/09/2002 under Section 147/148/336 and 325 IPC on the basis of the FIR lodged by the informant (PW-1). As stated in the FIR, on 17/09/2002 at about 9 A.M. the accused appellant No.1 along with some workers, mostly from No. 1 side line gathered in front of the office of the informant with the allegation that they wanted Bichar relating to last night’s fight in the lines. Although the office staff tried to pacify them, the workers gathered started throwing stones and bricks, as a result of which the informant along with S. Bezbora (PW-2) suffered injuries on their head with profuse bleeding because of the cut. As per the FIR, other executives also received injuries because of the stone throwing. They took shelter inside the factory as the crowd went violent. Ext. 1 is the FIR. 3. On completion of the investigation, the I.O. submitted charge sheet against the accused appellants and Sunil Munda, Ajoy MUnda, Bijoy Karmakar and Ananda Indra for trial. Except accused appellant No.1, all other accused persons were shown absconders in the charge sheet. However, subsequently accused appellant No. 2 appeared before the Court and faced the trial. The learned Trial Court having framed charges under Section 147/148/336/323/307 IPC, the same were read over and explained to them to which they pleaded not guilty and claimed to be tried. 4. However, subsequently accused appellant No. 2 appeared before the Court and faced the trial. The learned Trial Court having framed charges under Section 147/148/336/323/307 IPC, the same were read over and explained to them to which they pleaded not guilty and claimed to be tried. 4. The defence plea was that of denial and their statements recorded under Section 313 Cr.P.C The accused appellant No.1 stated that he was wrongly dismissed from service by the management. On 16/09/2002 night at about 12.O clock, Sr. Assistant of Duwamara Tea Estate along with other executives and security forces came to his house where some puja was going on. Coming to his house, he was assaulted by them. In the next morning when he along with other workers came to the office demanding justice (Bichar), the management lodged the FIR falsely implicating him. The learned Trial Court framed the following issues for determination and having answered the same convicting the accused appellants vide the impugned judgment, they have preferred this appeal. “i. Whether the accused persons were a member of an unlawful assembly on the relevant day ? ii. Whether the accused persons on the relevant day and time in prosecution of their common object of such assembly committed rioting and caused hurt to the informant and his colleagues by pelting stones and thereby endangered their lives or personal safety and also caused hurt to them as alleged by the prosecution ? 5. Mr. P. Mahanta, learned counsel for the accused appellants submits that there is absolutely no evidence warranting conviction of the accused appellants. Referring to the provisions of Section 141/146/147 and 148 IPC, he submits that the ingredients required towards formation of an unlawful assembly and rioting are missing in this case and consequently the learned trial Court could not have convicted the accused appellants. He further submits that on the face of it, it is a false case instituted by the management through its executives against the workmen i.e. the accused appellants because of the incident that occurred in the previous night of lodging the FIR, and as such the case is required to be considered keeping in mind the said aspect of the matter, more particularly, when there is inconsistencies in the evidence adduced by the PWs. He has placed reliance on the decision of the Apex Court reported in 1991 Supp(2) SCC 509 (Kutukbaka Krishna Mohan Rao and others Vs. Public Prosecutor, High Court of A.P. and another), so as to submit that there being no medical evidence regarding the purported injuries sustained by the alleged injured persons, the impugned judgment of conviction is not sustainable, in absence of any corroboration. 6. Countering the above argument, Mr. D. Das, learned Additional Public Prosecutor, Assam, submits that the witnesses having categorically deposed that the accused persons were involved in the incident, the learned Trial Court did not commit any error of law and / or of fact towards convicting the accused appellants. 7. I have given my anxious consideration to the submissions made by the learned counsel for the parties and have also perused the entire materials on record. As to what is the story narrated in the FIR has been noted above. As per the FIR lodged by PW-1, the accused appellants along with some workers had gathered in the office demanding justice in reference to the incident that happened in the previous night. It is the case of the defence that in the previous night, PW-2 along with some other executives and army personnel had visited his house and assaulted him. As per the FIR, although the executives belonging to the Tea Estate in question, tried to pacify the gathering but they started throwing stone and bricks, as a result of which PW-1 and PW-2 suffered head injuries, which caused profuse bleeding. As per the FIR, some other executives also sustained injuries and they took shelter inside the factory when the crowd was violent. 8. PW-1 is the informant and was the Manager of the Tea Estate. He in his deposition referring to the incident stated that he knew the accused appellant No.1 and on the date of the incident, people gathered in front of the office along with him, demanding justice for the last night’s incident. When he tried to reason with them, they did not listen. According to his deposition, most of the workers were armed with Bows, arrows, stones and daos. On the other hand, in the FIR, it was stated that the workers gathered had thrown stones and bricks. As per his deposition, he suffered injury on his head because of stone pelting. PW-2 also suffered injury on his head. According to his deposition, most of the workers were armed with Bows, arrows, stones and daos. On the other hand, in the FIR, it was stated that the workers gathered had thrown stones and bricks. As per his deposition, he suffered injury on his head because of stone pelting. PW-2 also suffered injury on his head. He further deposed that they had shifted to the Bunglow but the same was also gheraod by the workers. As it was getting dark, the workers dispersed from the site and thereafter they were taken for medical treatment. 9. In the cross examination, he stated that the accused appellant No.1 was placed under suspension because of which the Tea Estate labourers were coming to him demanding withdrawal of the order of suspension. He admitted that in the FIR, no statement was made that the Police took the injured to the Bunglow and that even the Bunglow was gheraod by the workers. He denied that in the previous night he had sent the PW-2 along with other personnel to the accused appellant No.1 and he was assaulted. He also admitted that the labourers were outside the gate and fence and that the gate was closed. He further admitted that the labourers coming to the Manager seeking justice relating to the incident, is not a new phenomenon. 10. PW-2 is the associate of PW-1, who was also allegedly injured in the incident. He in his deposition stated that the crowd of workers had gathered outside the Manager’s office demanding justice and talk with them. When he tried to pacify the workers, they did not listen and then he asked 2/3 representatives to come inside the office including the accused appellant No. 1 to have discussion to settle the dispute. However, the workers did not listen to the same and gradually the mob became bigger. According to him, the workers were instigated by accused appellant No.1 and because of such instigation, the crowd started throwing stones on them. He further stated that the crowd started pelting stones and breaking the windows of the office. Thereafter, they took shelter inside the factory till arrival of the police. In the evening police came and escorted them to Manager’s Bunglow and were given medical aid. 11. In the cross examination, PW-2 admitted coming to line No.2 in the previous night along with few others. Thereafter, they took shelter inside the factory till arrival of the police. In the evening police came and escorted them to Manager’s Bunglow and were given medical aid. 11. In the cross examination, PW-2 admitted coming to line No.2 in the previous night along with few others. According to him, he had gone there hearing hue and cry. He denied stopping at the house of the accused appellant No.1. He also denied the suggestion that before the Police he had stated that he had stopped near the house of the accused appellant No.1. He further stated that he could not remember as to whether he stated before the Police that many people gathered in the house of the accused appellant No.1 raising hue and cry. He denied having stated before the Police that there was an altercation with the accused appellant No.1 in that night. According to him, on the date of occurrence, the workers did not come demanding any justice but they came only to assault them. 12. If we go by the above evidence of PW-2, it is found that contrary to the FIR and the deposition of PW-1, his stand is that the workers did not come demanding any justice led by the accused appellant but they came with a determined bid to assault/hurt/harm the executives. 13. PW-3 in his deposition stated that the accused persons were known to him and so also PW-1 and PW-2. According to him, on the date of the incident he had visited the factory of the garden and could see PW-1 and PW-2 sustained minor injuries. He heard that such injuries were because of stone pelting. He also heard that workers had gathered because of the accused appellant No.1. In the cross examination, he categorically admitted that he did not see the accused appellant No.1 at the place of occurrence. 14. PW-4 in his deposition stated that on visiting the factory, he could find some workers sitting outside the factory. He could also see the accused appellant No.1. In the cross examination, he stated that in the previous night, the PW-2 had gone to the residence of accused appellant No.1, because of which the workers demanded justice. 15. PW-5 in his deposition stated that he was the Assistant Manager of the garden and on the date of the incident, he was present along with PW-1 and PW-2. In the cross examination, he stated that in the previous night, the PW-2 had gone to the residence of accused appellant No.1, because of which the workers demanded justice. 15. PW-5 in his deposition stated that he was the Assistant Manager of the garden and on the date of the incident, he was present along with PW-1 and PW-2. According to him, the workers had carried dao and lathi, which is a further development from the stand of the PW-1 and PW-2 discussed above. In his cross examination, he admitted that in the previous night, they had gone to Line No.1 hearing hue and cry. He also admitted that regarding the said incident police was not informed. He denied the suggestion that they had gone to the house of the accused appellant No.1 with the demand to vacate the quarter. As regards the counter FIR filed by the accused appellant No.1, registered and numbered as Pengeree PS Case No. 52/2002 (GR Case No. 356/2002), he denied that as a counter blast the FIR in the instant case was lodged. Although, he in his deposition stated that he had seen the workers but he could not identify any one except the accused appellant No.1. He also did not remember as to how the accused appellant had instigated the workers. 16. PW-6 in his deposition stated that there was a huge gathering in the front of the office. The gathering was of about 2000/2500 workers in front of the office. According to him, he did not see the accused appellant No.2. In the cross examination, he stated that the workers gathered wanted to meet the Manager and on being informed he asked him to closed the gate. According to him, the people gathered did not do anything except asking for opening the gate. They narrated to the Manager about the last night’s incident that happened in Line No. 2. He also stated that if the workers had desired they could have entered the office by breaking the fencing. He could not saw as to who had pelted stones as there was huge gathering. 17. PW-7 in his deposition stated that the accused appellant No.1 had visited the office on the date of occurrence and handed over a letter to him meant for the Manager. He could not saw as to who had pelted stones as there was huge gathering. 17. PW-7 in his deposition stated that the accused appellant No.1 had visited the office on the date of occurrence and handed over a letter to him meant for the Manager. He then handed over the letter to the Manager and just at that time the workers gathered and pelted stones, as a result of which PW-1 and PW-2 sustained injuries. In his cross examination, he stated that the workers had gathered demanding justice for the last night’s incident. He could not tell as to who had pelted stones. 18. PW-8 is the I.O. who had submitted the charge sheet. PW-9 is the I.O. who had conducted the investigation. He in his deposition narrating the incident stated that the PW-1 had sustained minor injury and so also the PW-2. In the cross examination he stated that although the telephonic information was the first information and there was GD entry but there was no mention of the same in the case diary. He also admitted that there was no mention in the case diary regarding his visit to the place of occurrence. He further admitted the fact of sending the injured persons for treatment was not mentioned in the case diary. He also stated that the PW-2 in his statement made under Section 161 Cr.P.C. had stated that many people had gathered in the house of the accused appellant No.1. On being asked, the PW-2 stated before him that puja was performed in the house of the accused appellant No.1. He also stated that according to PW-2, many people had gathered in the house of the accused appellant No.1 and thereafter he left the place. 19. Above are the evidence on the basis of which the learned trial Court has convicted and sentenced the accused appellants as aforesaid. As regards the injury allegedly sustained by PW-1 and 2, admittedly there is no injury report on the basis of any medical examination. Although, it is in the prosecution evidence that they had sustained injuries and were given medical aid but there is no medical evidence conforming the said position. It is in the context, Mr. As regards the injury allegedly sustained by PW-1 and 2, admittedly there is no injury report on the basis of any medical examination. Although, it is in the prosecution evidence that they had sustained injuries and were given medical aid but there is no medical evidence conforming the said position. It is in the context, Mr. Mahanta, learned counsel for the accused appellants has placed reliance on the decision of Kutukbaka Krishna Mohan Rao(Supra) in which the Apex Court held that to fix the presence of the accused in cases of unlawful assembly, their presence should be established by corroboration of their testimony by medical evidence. Referring to the injured witnesses and their testimonies, it was held that the Court generally to fix the presence in such cases of unlawful assembly, would first scrutinize the evidence of injured witnesses and if the same is corroborated by the medical evidence that can be accepted as against those accused to cause injuries and they can be held to be members of the unlawful assembly. In the instant case, while the PW-1 categorically deposed the workers had come demanding justice but the PW-2 made an exaggeration stating the workers did not come to demand of any justice but had come with a pre-determined mind to teach a lesson to the management. It is also in the evidence that this witness had visited the line No.2 on the previous night and had also gone to the residence of the accused appellant No.1. 20. Admittedly, the accused appellant No.1 was either suspended or dismissed from service. He was the Union Leader and the PW-2 and 5 are executives of the management. It is in this context, it has been argued by the learned counsel for the appellant that they being interested witnesses, their evidence is not reliable. It is also in the evidence that the accused appellant No.1 had lodged an FIR with the same Police Station which was registered and numbered as Pengeree PS Case No. 52/2002. As discussed in the impugned judgment of conviction, the said case resulted in FR. The said case was registered under Section1 47/148/506 IPC. It is also in the evidence that the accused appellant No.1 had lodged an FIR with the same Police Station which was registered and numbered as Pengeree PS Case No. 52/2002. As discussed in the impugned judgment of conviction, the said case resulted in FR. The said case was registered under Section1 47/148/506 IPC. In the FIR, it was stated by the accused appellant NO.1 that on the night on 16/09/2002 at about 12’O clock, the PW-2 along with PW-5 and few garden workers armed with dao, knife and AK 47 rifles came to the house of the accused and assaulted him. In the FR, police recorded that due to misunderstanding, the FIR was lodged by the accused. In the FR, it was also stated that some puja was going on in the house of the accused and many people had gathered. The FR also stated about the visit of the PW-2 along with PW-5 to the house of the accused appellant. 21. Although the PW-1 in his evidence stated about knowing the accused appellant No.1 but he in his deposition stated that people had gathered demanding justice. It is not in his evidence that it is the accused appellant who had thrown stones causing injuries. In the cross examination he also admitted that the labourers were outside the gate and fencing and that the gate was closed. He further admitted that labourers coming to the Manager seeking settlement relating to incident is not a new phenomenon. It is because of this, the learned counsel for the appellants has submitted that a different story was made out because of the demand of the labourers to withdraw the order of suspension/dismissal against the accused appellant No.1. 22. As discussed above, the PW-3 in his cross examination categorically stated that he did not see the accused appellant No.1 at the place of occurrence. He also stated in his chief that workers had gathered demanding justice for the appellant No.1. PWs- 4 and 5 categorically stated that some of the workers were outside the factory and some were inside. He in his cross examination stated that the workers demanded justice in reference to the previous night’s incident. PW-6 in his deposition stated about gathering of 2000-2500 people. According to him, he did not see the accused appellant No.2. PWs- 4 and 5 categorically stated that some of the workers were outside the factory and some were inside. He in his cross examination stated that the workers demanded justice in reference to the previous night’s incident. PW-6 in his deposition stated about gathering of 2000-2500 people. According to him, he did not see the accused appellant No.2. In his cross examination he admitted that they wanted to meet the Manager and if they had wanted they could have entered the premises by breaking the fencing. PW-7 also stated that he did not see as to who was responsible for pelting stones. PW-9 contradicted PW-1, 2 and 5 while he referred to the recording of the steps taken in the Case diary. 23. Section 141 IPC defines Unlawful Assembly thus :- “An assembly of five or more persons is designated an “unlawful assembly”, if the common object of the persons composing that assembly is— First — To overawe by criminal force, or show of criminal force, 1[the Central or any State Government or Parliament or the Legislature of any State], or any public servant in the exercise of the lawful power of such public servant; or Second — To resist the execution of any law, or of any legal process; or Third — To commit any mischief or criminal trespass, or other offence; or Fourth — By means of criminal force, or show of criminal force, to any person, to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way, or of the use of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right; or Fifth — By means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do. Explanation.—An assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly.” 24. Section 146 IPC defines rioting, whenever force or violence is used by an unlawful assembly, or by any member thereof, in prosecution of the common object of such assembly, every member of such assembly is guilty of the offence of rioting. 25. Section 147 and 148 prescribe punishment for riots and rioting armed with deadly weapons. Section 146 IPC defines rioting, whenever force or violence is used by an unlawful assembly, or by any member thereof, in prosecution of the common object of such assembly, every member of such assembly is guilty of the offence of rioting. 25. Section 147 and 148 prescribe punishment for riots and rioting armed with deadly weapons. There is contradictory evidence as to what arms the people carried. There is also no evidence suggesting that the accused appellants had carried any arms. While in the FIR, the PW-1 stated that the people had carried stones and bricks but in his deposition made during trial he exaggerated the same by stating that the workers were armed with Bows, arrows, stones and daos. This exaggeration coupled with the exaggeration of the PW-2, will have to be tested in the touch stone of the fact that he accused appellant No.1 was a Union leader and he was suspended/dismissed from service. 26. From the above evidence, none of the ingredients towards constituting the offence punishable under Section1 47, 148, 336 and 323 can be said to have been established against the accused appellants beyond all reasonable doubts and thus they are entitled to the benefit of doubt. Accordingly, the appeal is allowed by setting aside the impugned judgment of conviction. The accused appellants are already on bail by virtue of order passed n Misc. Case No. 2936/2006 on 18/08/2006. The bail bonds stand discharged. 27. Registry shall transmit the case records to the learned court below along with a copy of the judgment and order.