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2015 DIGILAW 671 (GAU)

Congress Gogoi v. State of Assam

2015-06-02

P.K.SAIKIA, RUMI KUMARI PHUKAN

body2015
JUDGMENT : Rumi Kumari Phukan, J. We have heard Mr. B. Chakraborty as well as Mr. D. Doley, learned counsel for the appellants and Mr. K. A. Mazumdar, learned Addl. PP, Assam. 2. This is an appeal under Section 374 of the Code of Criminal Procedure, 1973, preferred against the judgment & order of conviction and sentence passed by the Additional Sessions Judge (FTC) No. 2, Tinsukia on 27.01.2012 in Sessions Case No. 213 (CH) 2006 convicting the appellants under Sections 302/34 of IPC and to undergo rigorous imprisonment for life and to pay fine of Rs.5,000/-only each or to serve rigorous imprisonment for one month. 3. The facts behind the prosecution case is that there was a boundary dispute between the father of the deceased Prasanta Gogoi and the accused Congress Gogoi since several years and on 31.07.2006 in the afternoon family members of said Prasanta Gogoi and the accused Congress Gogoi assembled in the disputed area to settle the long pending land dispute at the behest of accused appellant Gonesh Gogoi in presence of the Gaon Burah concerned but while discussion was going on the matter, then there was a hot altercation and scuffle between them. In the process the accused Congress Gogoi dealt a stab injury on the chest of Prasanta and as a result he died on the spot. The brother of the said deceased namely Ramesh Chandra Gogoi lodged an FIR before the O.C. Chapakahowa, on the very next day. Police registered Sadiya P.S. Case No. 51/2006. Accordingly and investigation was started. The dead body of the deceased Prasant Gogoi was sent for Post Mortem Examination. All the persons present in the place of occurrence were examined by the I.O., the weapon of offence was seized by the I.O on being produced by son of the accused and after due completion of the investigation Charge-Sheet was submitted against those accused persons under Section 302/34 IPC. 4. Both the accused persons entered their appearance before the Court below and after furnishing them the necessary copies the case was committed to the Court of Sessions and they stood the trial before the Court of Sessions accordingly. After hearing learned counsel for both sides and necessary documents, the learned Sessions Judge framed the Charge under Section 302/34 IPC against the both the accused persons and on being explained, the accused denied the same. After hearing learned counsel for both sides and necessary documents, the learned Sessions Judge framed the Charge under Section 302/34 IPC against the both the accused persons and on being explained, the accused denied the same. To substantiate the charge prosecution examined as many as 9 (Nine) witnesses and defence examined 3 (three) witnesses. The plea of defence was of denial and in support of their contention that the deceased died in the scuffle, they have adduced defence evidence. After completion of the trial, the learned Court held both the accused guilty under Section 302/34 IPC and convicted and sentenced them as aforesaid. Hence, the appeal before us. 5. The aforesaid Judgment and Order has been assailed on various grounds that the trial court has failed to appreciate the evidence on record and while placing reliance upon the evidence of the prosecution has discarded the defence evidence so adduced by the accused appellants. It has been contended by the learned counsel for the appellants that trial Court totally over looked the defence witnesses who were also the eye witnesses to the occurrence and they give account of the incident as to how the appellant no. 1 has got the injury and appellant No. 2 ran away from the place of occurrence. Further, the learned Court has discarded the vital aspect that the accused appellant no. 1 also sustained injuries on his person and was hospitalized for his treatment for several days. Further point of contention of the learned counsel for the appellant is that the Court below has not appreciated the matter of cross case filed by the appellant being registered as Sessions Case No. 10 (CH)/2009 and the fact that there was no definite evidence to conclude that the accused No. 1 dealt the stab injury upon the deceased. That apart, it has been pointed out that the witnesses were closely related to the deceased and their evidence is not wholly reliable, couple with the fact that there was a delay in filing the FIR. 6. On the other hand the learned counsel for the learned Addl. PP., Mr. That apart, it has been pointed out that the witnesses were closely related to the deceased and their evidence is not wholly reliable, couple with the fact that there was a delay in filing the FIR. 6. On the other hand the learned counsel for the learned Addl. PP., Mr. K. A. Mazumdar has vehemently opposed against the argument so advanced by the learned counsel for the appellant and has submitted that only because the witnesses related to the deceased cannot be a ground to reject the prosecution case because their presence in the place of occurrence was natural as because it was the accused/appellant No. 1 who called the witnesses along with Gaon Burah to settle the boundary dispute. Further, one day delay in filing the FIR is also self explanatory in view of the fact that the occurrence took place in the late afternoon. While in the said incident there was sudden death of Sri Prasant Gogoi and it was not expected that the bereaved family will go to Police Station after such sad incident and all the family members was busy for funeral of the deceased. It has also been strenuously urged by the learned Addl. PP., that in view of several eye witness to the occurrence examined by the prosecution who has specifically made out the case that it was the accused who dealt the stab injury upon the deceased person after scuffle between them, there is nothing to accepts the defence story that the deceased died in the scuffle and accused was not responsible for the incident and the learned Court has also rightly discarded the defence evidence. Similarly, the learned court below has also appreciated the matter pertaining to Sessions Case so registered against the cross case filed by the accused appellant. Thus, refuting the contention so raised by the learned counsel for the appellant, the learned Addl. PP., has submitted that it is a fit case to award punishment as has been held by the Court below. 7. We have given due consideration to the rival contention of the both the parties and also gone through the matters on record. To arrive at a conclusion as to whether prosecution has been able to prove the charge under Section 302/34 IPC, let us have a proper appraisal of the evidence of both parties and the facts behind. 7. We have given due consideration to the rival contention of the both the parties and also gone through the matters on record. To arrive at a conclusion as to whether prosecution has been able to prove the charge under Section 302/34 IPC, let us have a proper appraisal of the evidence of both parties and the facts behind. To start with, we have to bear in mind the the scenario behind the prosecution case. As admittedly on the fateful day as called upon by the accused Congress Gogoi, the deceased and his family members along with Gaon Burah assembled to the decide the long pending boundary dispute between the parties and at the time of the assemble of the parties nobody was assembled with arms but the matter turns to a hot altercation and scuffle between the parties resulting instantous death of sri Prasant Gogoi. There is no denial on the defence side also that there was scuffle between the parties i.e. deceased Prasanta and Congress Gogoi and according to prosecution deceased was stabbed to death by the accused and according to defence story there was a scuffle between the accused and said deceased but the deceased died out of self inflicted injury and accused not responsible for the death of Prasanta. 8. Let us begin with the defence evidence and its credibility. According to DW.1 D.K. Buragohain, he along with Gaon Burah/PW. 7 and D.W. 2 Puneswar Gogoi led to the place of occurrence for settlement of boundary dispute at the behest of accused Congress Gogoi while other parties (i.e. P.W.2, 4, 5 were also assembled for amicable settlement of the boundary dispute and at that time accused Hemanta arrived with a bundle of paddy and there was a push and pull between the said Hemanta and P.W.5 and then the accused intervene in the matter and thereafter Cogress Gogoi was chased by all said witnesses to a distance and inspite of his protest Ramesh Gogoi (the informant) and the prasant Gogoi (deceased) inflicted dao blows on the person of Congress Gogoi and then Congress Gogoi ran away from the place of occurrence and according to him deceased prasant might have sustained injury on his person while Congress Gogoi was being assaulted. Further, it is stated deceased Prasanta proceeded towards his father A. Gogoi/P.W. 2 and fell down and died on the spot. Further, it is stated deceased Prasanta proceeded towards his father A. Gogoi/P.W. 2 and fell down and died on the spot. On scrutiny of the evidence of D.W. 2 P. Gogoi, it is found that he has given a different story though he has claimed to be eye witness to the occurrence. According, to him all the prosecution witness along with the deceased Prasanta chased both the accused chased persons saying that they will see them and then congress gogoi fell down at a distance of 15 Mtrs., and Chittranjan Gogoi P.W. 4 assaulted accused Congress by a mit dao while Ramesh (informant) Prasant (deceased) pressed upon congress on ground for which he sustained injury on his back. Thereafter, Congress Gogoi fled away and deceased prasanta fell on the ground and according to him deceased prasanta might have caused injury in the scuffle while congress was being assaulted. 9. Thus, D.W. 2 contradicted the evidence of D.W. 1 on material aspects because according to D.W. 1 Ramesh and Prasanta inflicted dao blows on Congress but according to D.W. 2 it was the Chittranjan Gogoi P.W. 4 who dealt the cut blow upon the accused appellant Ramesh Gogoi. In view of such serious discrepancy between the so called eye witness to the occurrence adduced by the defence it is highly unsafe to place reliance upon such evidence. 10. That apart, the D.W. 3/Dr. R. Borkotoki upon examination of the said accused has found one simple cut injury on the back of the trunk on the shoulder joint and on the right hand but his evidence is not conclusive it has not mentioned the size of injury, weapon used impact of the injury etc., which however only suggestive of the fact that the deceased also sustained injury on the day of occurrence on his back but he got no such serious cut injury by dao etc. 11. Now, let us turn to the evidence of prosecution side and it is found that all the witnesses from P.W. 1 Sri Ramesh Chandra Gogoi, P.W. 2 Aganaya Gogoi, PW. 3 Surendra Gogoi, PW. 11. Now, let us turn to the evidence of prosecution side and it is found that all the witnesses from P.W. 1 Sri Ramesh Chandra Gogoi, P.W. 2 Aganaya Gogoi, PW. 3 Surendra Gogoi, PW. 4 Chittranjan Gogoi and P.W. 5 Lohit Gogoi, who happened to be present at the time of occurrence to decide the boundary dispute has given a consistent evidence corroborating each other on the same facts that at the time of such discussion about determination of boundary, the accused started quarrel with them and there was a scuffle between the accused congress and Prasanta at that time accused congress stabbed Prasanta on his chest and resulting instantous death of Prasanta on the spot, though they have admitted about the quarrel between both the parties but their specific evidence is that it was the accused person who dealt the knife blow on the chest of the deceased and fled away. If we compare the evidence of D.W.1 with the evidence of P.W. 2, we will get a definite answer that the version of P.W. 2 is authentic. According to D.W. 1 after the incident the deceased proceeded towards his father/P.W. 2 and thereafter fell down and died on the spot. Now, the said P.W. 2 has stated the same that after the injury sustained by his son deceased Prasanta he came towards him and fell down and then the P.W. 3 went ahead and prior to his death Prasanta told him that he has been inflicted knife blow by Congress Gogoi. Similarly, the said P.W. 3 Mr. S. Gogoi has stated that seeing the incident PW. 3 Chittranjan Gogoi assaulted accused Congress with a piece of split bamboo for which he sustained injury on his back. Now, at this juncture we can connect the evidence of D.W. 3 and other findings about simple cut injury on the back of the accused Congress that for such assault made by split bamboo he sustained injury. Even if this witness made an assault to the accused it can be treated as normal human behaviour/reaction while such incident happens before elderly person. 12. All the eye witnesses mentioned above have given consistent evidence, and even in the cross-examination nothing can be exploited. Even if this witness made an assault to the accused it can be treated as normal human behaviour/reaction while such incident happens before elderly person. 12. All the eye witnesses mentioned above have given consistent evidence, and even in the cross-examination nothing can be exploited. Regarding the weapon of offence which has been challenged by the defence that it was not proved to be belong to accused but the evidence of all the witnesses goes to show that accused Hemanta arrived with a knife at the place of occurrence and though said Hemanta took no any further part in the incident but one knife was seen in the hands of the accused by the PW. 2, 3 which is stated about 8” length with handle. So, in view of the ocular evidence couple with the evidence of M.O./PW. 9, who has found stab injury over the front chest wall of size ½ cm X whole chest wall and superficial bruise over the forearms with ruptured pleurae and Punctured lung and pericardium, punctured heart leads to a conclusion that deceased died of such stab injury meaning thereby injury was caused by sharp cutting/Pointed weapon as has been opined by the M.O. 13. In view of above, evidence on record, it can be held that the deceased died of cut injury on the chest and it was caused by the use of knife by the accused Ganesh Gogoi. However, from the whole evidence on record, we do not find any complicity of the accused Hemanta with the offence charged, except one circumstance that the accused Hemanta arrived at the place of occurrence with a dao in his hand. Nothing further can be attributed towards commission of offence charged. So, he can be scot free from the charge levelled against him. 14. Now, we have to discuss about the role played by the accused Gonesh while committing the offence. It is the evidence of both side that there was scuffle between the accused and the deceased at the time of occurrence and also the fact that the deceased had no any weapon in hand at the time of occurrence and the incident of assault occurred after the sudden altercation between the parties which indicate that the Gonesh had no pre-determine mind to cause death of said Prasanta and also have no motive to commit the murder. All the incident happen after a sudden fight between the parties and the accused might have used the knife being provoked by the hot altercation between the parties over the boundary dispute and such single blow might have happen without being intended, however, resulting death of Prasanta. In the circumstances, it can be held that it is a case of culpable homicide not amounting to murder under Section 304(ii) IPC. Accordingly, the Charge altered to Section 304(ii) IPC and accused is sentenced to R.I. for 7 years and also to pay a fine of Rs.2,000/- i/d R.I.for 2 months. Period of detention already undergone shall be set off. 15. Return the LCR with copy of order. Accused is directed to surrender before the trial Court within one month to serve out the sentence.