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2016 DIGILAW 580 (GAU)

Dania Orang v. State of Assam

2016-06-22

A.K.GOSWAMI, PARAN KUMAR PHUKAN

body2016
JUDGMENT AND ORDER : Paran Kumar Phukan, J. This appeal is directed against the judgment and order dated 23.8.2012 passed by learned Sessions Judge, Jorhat in Sessions Case No. 42(JJ)/2006 convicting the accused appellants under Sections 302/147/148/323 read with Section 149 of the Indian Penal Code and sentencing them to undergo imprisonment for life and to pay fine of Rs. 5,000/- each, in default, rigorous imprisonment for another 3 (three) months under Sections 302/149 of the IPC, rigorous imprisonment for one year under Section 147 IPC, rigorous imprisonment for one year under Section 148 IPC and simple imprisonment for 3 months under Sections 323/149 of the IPC. 2. The case as projected by the prosecution is that on the evening of 21.05.2005 at about 8.30/9.00 PM, the accused appellants armed with dao, lathi and bow and arrow attacked the house of the informant Suren Ganju situated at Meleng Balijan Basti under Teok Police Station and the accused appellant Dania Orang caused fatal injury to Ranu Ganju by shooting him with an arrow from a bow on his chest and the accused appellant Tarun Karmakar inflicted cut injury on the neck and head of his mother Ghaneswari Ganju. The other accused appellants damaged their house by cutting the walls and doors and windows. Both the injured persons were taken to hospital in a pushcart but Ranu Ganju died on the way to hospital and Ghaneswari Ganju was admitted to hospital for treatment of her injuries. 3. The written FIR having been lodged by the informant Suren Ganju on 22.05.2005 with the In-Charge, Lahdoigarh Police Outpost and on being forwarded to O.C. Teok Police Station on the same day, Teok Police Station Case No. 39/2005 was registered and on completion of investigation, charge-sheet was submitted against all the accused appellants. 4. The case come up for trial before the learned Sessions Judge, Jorhat. During the trial as many as 13 witnesses have been examined by the prosecution including the official witnesses. Defence pleaded innocence but no witness has been examined on behalf of the defence. On conclusion of the trial, the learned Sessions Judge found the accused appellants guilty and convicted and sentenced them as stated above. Hence, this appeal. 5. There is no dispute regarding the death of Ranu Ganju as a result of the injuries sustained by him on his chest caused by the arrow. On conclusion of the trial, the learned Sessions Judge found the accused appellants guilty and convicted and sentenced them as stated above. Hence, this appeal. 5. There is no dispute regarding the death of Ranu Ganju as a result of the injuries sustained by him on his chest caused by the arrow. Autopsy on the dead body was conducted by PW 10, Dr. Bivucharan Baruah in the Jorhat Civil Hospital on 22.05.2005 and on examination of the dead body, he found the following injuries : Injury :- There is a penetrating wound at the level of right 10th intestinal space of size 2.5 cm x 2 cm with the foreign body in situ. The outer portion of the FB is a bamboo stick directing obliquely and downwards. The surrounding skin is lacerated. Liver :- The right lobe of the liver is pierced by the foreign body and a triangular arrow is found to be fixed. Extensive laceration found after exploration there is massive haemorrhage from the liver. The injuries described were ante-mortem. 6. The doctor opined that the death of the deceased was due to syncope as a result of injuries sustained. His evidence also reveals that he removed the arrow from the dead body of the deceased which was stained with blood and the same was handed over to the Investigation Officer which was seized by him vide Ext. 3. The doctor also put his signature in the seizure. In cross-examination also, he reaffirmed that the arrow which was removed from the dead body of the deceased pierced into his liver. The uncontroverted testimony of the doctor coupled with the P.M. Report, Ext. 6 established that the death of the deceased was due to the injury he sustained on his chest which was caused by the arrow which was removed from his chest by the doctor himself and was handed over to the I.O. 7. There is also no dispute regarding the injuries sustained by Ghaneswari Ganju, mother of the informant. She was also treated in the Jorhat Civil Hospital as an indoor patient and the doctor, PW 11 on her examination found the following injuries : (1) Lacerated injury on the back of the neck measuring 6" x ¼" x 2" with bleeding. (2) Lacerated injury on the right parietal region measuring 1" x ¼"x ¼". (3) Slight abrasion of the back. 8. (2) Lacerated injury on the right parietal region measuring 1" x ¼"x ¼". (3) Slight abrasion of the back. 8. According to the doctor the injuries were simple, fresh and caused by blunt weapon and Janeswari Ganju was admitted for treatment in the hospital. 9. Mr. K.K. Bhatta, learned Amicus Curiae appearing for the appellants, has submitted that the trial court committed grave illegality by convicting the accused appellants on the basis of the evidence of the witnesses who were from the same family having interest in the case. He strenuously contended that no independent witness has been examined by the prosecution to prove the case and the accused appellants should not have been convicted on the basis of the evidence of the interested witnesses. 10. His next contention is that there are sufficient delay in lodging the FIR and no explanation has been provided in the FIR regarding the delay. He further submitted that there are discrepancies in the evidence of the witnesses regarding the source of light which enabled the witnesses to identify the appellants. It is also submitted that no ingredient of Section 149 IPC has been established against the accused appellants and the learned trial court committed manifest illegality by convicting them with the aid of Section 149 of the IPC. 11. In controversion, Ms. S. Jahan, learned Additional Public Prosecutor, has submitted that the evidence of the eye witnesses PW 1 to PW 4 even though they are members of the same family established beyond doubt that the accused appellants were involved in the commission of the crime and no illegality has been committed by the trial court by convicting the accused appellants with the aid of Section 149 of the IPC. The delay in fling the FIR has been explained by the informant himself and there is no reason to suspect embellishment and afterthought. The accused appellants were known to the witnesses from before, being neighbours and there is no reason to doubt their presence and involvement in committing the crime. The evidence of the witnesses cannot be rejected on the ground that they were from the same family. 12. The accused appellants were known to the witnesses from before, being neighbours and there is no reason to doubt their presence and involvement in committing the crime. The evidence of the witnesses cannot be rejected on the ground that they were from the same family. 12. In the backdrop of the aforesaid contentions, we feel it expedient to go through the evidence of the witnesses for finding out as to whether the occurrence had taken place in which Ranu Ganju was killed and his mother was injured in the manner alleged by the prosecution. 13. PW 1 is Ghaneswari Ganju, mother of the deceased and the informant and she also claims to have sustained injuries in the occurrence. According to her, at about 10 pm, the accused/appellants gheraoed her house and thereafter by breaking open the door they entered into the house armed with weapons. Accused Dania had a bow and arrow in his hand and in the light of the petromax she saw him shooting an arrow from the bow which pierced the chest of her son Ranu Ganju and he fell down after the arrow hit his chest. She raised hue and cry and at that moment, the accused appellant Tarun Karmakar inflicted a dao blow on her head as a result of which she also fell down. Her evidence also reveals that all the accused persons come together and they damaged the walls, doors etc. of the house. 14. Corroborating her evidence, PW 2, Suren Ganju who is her son and informant of the case has stated that at about 8.30/9 pm, the accused appellant Dania Orang and Tarun Karmakar first come to their house and were followed by other accused appellants. Dania who was holding a bow and arrow shot the arrow at the chest of his brother Ranu Ganju as a result of which he fell down and Tarun inflicted dao injures on his mother and she also fell down. His evidence is that the other accused were also armed with weapon like dao and lathi and they caused damage to the house by cutting the walls. Out of fear, he along with other inmates, i.e. his sister and sister-in-law fled away through the backside of the house. The injured persons were taken to hospital but his brother died on the way to hospital and mother was admitted in the hospital. Out of fear, he along with other inmates, i.e. his sister and sister-in-law fled away through the backside of the house. The injured persons were taken to hospital but his brother died on the way to hospital and mother was admitted in the hospital. He lodged the FIR, Ext. 1 on the next day of the occurrence and according to him, he could not lodge the FIR soon after the occurrence as he had to take the injured to hospital. He has given the explanation regarding the delay in filing the FIR. He was present when the arrow was taken out from the chest of his deceased brother by the doctor at the time of postmortem examination and he proved the seizure, Ext. 3 and identified the arrow, M. Ext. 1 which was produced during the trial. Apart from Dania Orang and Tarun Karmakar others had not assaulted anybody and they only caused damage to the house. 15. PW 3, Raimoni Ganju younger sister of the deceased and the informant also saw the accused appellant Dania Orang shooting her brother with an arrow and the appellant Tarun Karmakar inflicting blows with a dao on her mother. Out of fear she fled away. It appears from the evidence in cross-examination that the accused appellant Barun Karmakar had wanted to marry her but she refused and according to her, he and his friends come to her house and caused damage to the house and in the process Dania killed Ranu Ganju with a bow and arrow and also caused injuries to her mother. 16. Close on the heels of the other witnesses, PW 4 Bina Ganju, wife of the deceased Ranu Ganju, also deposed that the accused appellants armed with weapon come to their house and accused appellant attacked her husband with bow and arrow which caused his death. She also fled away out of fear. She also stated that her mother-in-law sustained injuries. 17. On careful scrutiny of the evidence of the four witnesses, we have found that they have given consistent and uniform version regarding the occurrence. She also fled away out of fear. She also stated that her mother-in-law sustained injuries. 17. On careful scrutiny of the evidence of the four witnesses, we have found that they have given consistent and uniform version regarding the occurrence. The accused appellants are their neighbours and they knew them by name and person from before and they have consistently stated that the accused appellant Dania caused injuries to Ranu Ganju with an arrow which pierced his chest, as a result of which he fell down and the other accused appellant, Tarun Karmakar inflicted dao blows to Ghaneswari Ganju on her neck and head. Even though they are members of the same family, there is no reason to doubt their testimony. 18. PW 5, Ram Kumar Chowra has been declared hostile as he resiled form his earlier stand and is unreliable. PW 6 Mohan Ganju, admittedly, had not seen the occurrence and he claims to have arrived in the house of the deceased on being informed by his niece that Dania had killed Ranu Ganju. PW 7, Ranjan Orang was present when police accompanied by the accused appellant Dania Orang come to the house of Bubai Karmakar and recovered the bow which was seized vide Ext. 4. But he was not present when the dao was seized by police from the kitchen of accused appellant Dania Orang on being brought out by the accused appellant Bircha Orang. PW 8, Basiruddin proved seizure Ext. 5 whereby police seized one knife from the house of the accused Bubai Karmakar. However, this witness has been declared hostile by the prosecution as he resiled from his earlier version given before police. PW 9, Kritivas Tanti although testified that police seized one dao and one bow but his evidence appears to be of no use as he was not present at the time of seizure of those exhibits. 19. The evidence of PW 12 the Investigation Officer discloses that on being led by the accused Dania Orang and Bircha Orang and on being shown by them, he recovered the bow from the roof of the cowshed of Bubai Karmakar and the dao which was used to cause injury to Ghaneswari Ganju which was concealed under the slab of the kitchen of Dania Orang and those items were seized vide Exts. 4 and 5 and the Investigation Officer also proved Exts. 4 and 5 and the Investigation Officer also proved Exts. 8 and 9, disclosure statements made by the accused appellant Dania Orang and Bircha Orang and also prepared the sketch map, Ext. 10. PW 13, Dilip Saikia, a constable also accompanied PW 12 and was present at the time of recovery and seizure of above items on being led by accused appellant Dania Orang and Bircha Orang and he also proved the seizure list, Ext. 4. 20. On an overall assessment of the entire evidence on record as discussed above, we have no doubt that Ranu Ganju died as a result of the injury caused on his chest by the arrow and it was the accused appellant Dania who shot the arrow on his chest. All the eye witnesses PW 1 to PW 4 categorically stated that the accused appellant Dania Orang caused injury on the chest of the deceased with the arrow released from his bow which was carried by him. There is also no room for doubt that the accused appellant Tarun Karmakar inflicted dao injuries on the head and back of the neck of Ghaneswari Ganju. The oral evidence of the eye witnesses has been corroborated by the medical evidence which confirmed death of Ranu Ganju due to the injury in his chest caused by the arrow and also the injuries sustained by Ghaneswari Ganju. Although the eye witnesses were closely related, the same cannot be a ground to reject their testimony as they are otherwise found to be reliable and trustworthy. They have no reason to falsely implicate the accused appellants by shielding the actual culprits. 21. The defence tried to create some doubt regarding identification of the other accused appellants. It is submitted that the fact regarding the source of light as disclosed by the witnesses is not believable as neither any petromax nor any lamp has been seized by the Investigation Officer. It was a lapse on the part of the I.O. but for the same the entire prosecution case cannot be thrown overboard. 22. In view of the categorical statement of PW 1, PW 2 and PW 4 and considering the statement of PW 2 that it was moon-lit night, we have no hesitation to hold that though the occurrence took place at night, there was sufficient light to identify the culprits. 22. In view of the categorical statement of PW 1, PW 2 and PW 4 and considering the statement of PW 2 that it was moon-lit night, we have no hesitation to hold that though the occurrence took place at night, there was sufficient light to identify the culprits. Moreover, all the accused/appellants were neighbours and the witnesses knew them by name and person and it was not difficult for them to identify the accused appellants. 23. Doubt is sought to be created regarding the place of occurrence. The evidence of PW 1 is that the occurrence took place inside the house whereas PW 2 deposed that it happened outside the house. The Sketch Map, Ext. 10 shows that at "Ka" place the occurrence took place which appears to be just outside the room of the house of the informant. Initially the occurrence might have taken place at the entrance of the house when the accused appellants attacked Ranu Ganju and Ghaneswari Ganju and they might have entered into their house thereafter. 24. From the evidence on record although the exact place where the attack on Ranu Ganju and Ghaneswari Ganju by the accused appellants Dania Orang and Tarun Karmakar cannot be said to have taken place, that would not negate the story that the accused appellants attacked them with bow and arrow and dao. The witnesses cannot be expected to remain at a particular place of the house when they saw the accused coming with arms and their evidence clearly shows that they retreated towards the backside of the house and fled away out of fear. Under such circumstances, it is difficult to pin-pointedly say exactly at what place the assault took place and it might just have taken place outside the house, near the entrance or inside the house. There may be some minor discrepancies but that cannot brush aside the otherwise cogent and reliable evidence of the eye witnesses. 25. In a criminal trial, minor variations and inconsistencies always occur but it is well settled that these minor variations in the versions of the witnesses is the hallmark of their testimony. 26. There may be some minor discrepancies but that cannot brush aside the otherwise cogent and reliable evidence of the eye witnesses. 25. In a criminal trial, minor variations and inconsistencies always occur but it is well settled that these minor variations in the versions of the witnesses is the hallmark of their testimony. 26. The next important question would be whether the appellants at all constituted an unlawful assembly and if they did whether the murder of the deceased Ranu Ganju by the appellant Dania Orang and inflicting of injuries to Ghaneswari Ganju by Tarun Karmakar who were members of the unlawful assembly would attract the provision of 149 IPC so as to make all the appellants responsible for the acts. 27. The learned Amicus Curiae contends that apart from the appellant Dania Orang and Tarun Karmakar others have not taken part in the commission of the crime and their mere presence would not attract Section 149 of the IPC. Ms. S. Jahan, learned Addl. Public Prosecutor, controverting the submissions of the learned Amicus Curiae, asserted that all the appellants armed with lethal weapons like bow and arrow, dao, lathi etc. come together and even though only the accused appellant Dania Orang and Tarun Karmakar took part in the assault, the other accused appellants vandalised and damaged the house and all of them were members of the unlawful assembly which has been constituted before the occurrence and all of them are to be held guilty for commission of the crime even though murder has been committed by only one of them. By referring to Section 149 IPC, Ms. Jahan further contends that the common object of the unlawful assembly was to commit murder and inflict injuries which could be gathered from the conduct of the appellants and roles played by them during the entire occurrence. 28. Before adverting to the submissions, we deem it necessary to discuss the law regarding the vicarious liability. Section 149 of the Indian Penal Code reads thus : "149. 28. Before adverting to the submissions, we deem it necessary to discuss the law regarding the vicarious liability. Section 149 of the Indian Penal Code reads thus : "149. Every member of unlawful assembly guilty of offence committed in prosecution of common object.-If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence." 29. A plain reading of the Section shows that the first part deals with cases where an offence is committed by any member of the assembly "in prosecution of the common object" of that assembly and the second part deals with cases where the commission of a given offence is not by itself the common object of the unlawful assembly but members of such assembly "knew that the same is likely to be committed in prosecution of the common object of the assembly". 30. In Chandra Bihari Gautam & Ors. v. State of Bihar, 2002 (9) SCC 202, the Apex Court held as under : "Section 149 is an exception to the criminal law where-under a person can be convicted and sentenced for his vicarious liability only on proof of his being a member of the unlawful assembly, sharing the common object, notwithstanding as to whether he had actually participated in the commission of the crime or not. Common object does not require prior concert and a common meeting of minds before the attack. An unlawful object can develop after the accused assembled. The existence of the common object of the unlawful assembly has to be ascertained in the facts and circumstances of each case. It is true that the mere presence of the accused is not sufficient to hold them guilty for the sharing of the common object as the prosecution has to further establish that they were not mere bystanders but in fact were sharing the common object. It is true that the mere presence of the accused is not sufficient to hold them guilty for the sharing of the common object as the prosecution has to further establish that they were not mere bystanders but in fact were sharing the common object. When a concerted attack is made by a large number of persons, it is often difficult to determine the actual part played by each of the accused but on that account for an offence committed by a member of the unlawful assembly in the prosecution of the common object or for an offence which was known to be likely to be committed in prosecution of the common object, persons proved to be members cannot escape the consequences arising from the doing of that act which amounts to an offence. There may not be a common object in a sudden fight but in a planned attack on the victim, the presence of the common object amounts the persons forming the unlawful assembly can be inferred. Para 6 Every member of the unlawful assembly is guilty of the offence committed in prosecution of the common object. Section 149 has two parts. First part deals with the commission of an offence by a member of an unlawful assembly in prosecution of the common object of that assembly and the second part deals with the liability of the members of the unlawful assembly who knew that an offence was likely to be committed in prosecution of the object for which they had assembled. Even if the common object of the unlawful assembly is stated to be apprehending one of the deceased only, the fact that the accused persons had attacked the house of the complainant at the dead of night and were armed with deadly weapons including guns, and used petrol bombs, proves beyond doubt that they knew that in prosecution of the alleged initial common object, murders were likely to be committed. The knowledge of the consequential action in furtherance of the initial common object is sufficient to attract the applicability of Section 149 for holding the members of the unlawful assembly guilty for the commission of the offence by any member of such assembly. The knowledge of the consequential action in furtherance of the initial common object is sufficient to attract the applicability of Section 149 for holding the members of the unlawful assembly guilty for the commission of the offence by any member of such assembly. In this case the appellants, along with others, have been proved to have formed an unlawful assembly, the common object of which was to commit murder and arson and in prosecution of the said common object they raided the house of the informant armed with guns and committed offence. Para 8 Thus the prosecution has established the existence of the common object of the unlawful assembly for attracting the applicability of Section 149 of the Indian Penal Code and the mere fact that no overt act has been attributed to each of the accused persons is not sufficient to hold that charge under Section 149 has not been proved against them." 31. In the case in hand the evidence on record clearly reveals that all the accused appellants armed with deadly weapons like bow and arrow, dao, lathi etc come together to the house of the deceased and they knew that Dania Orang was carrying bow and arrow which is a lethal weapon capable of causing instantaneous death. They assembled even before coming to the house of the deceased and before entering the house some of them uttered "we will kill them !" From the conduct of the accused appellants it is not difficult to presume that they shared the common object to commit murder. There is in the evidence to show that any of the appellants tried to prevent the accused appellants Dania Orang from releasing the arrow from the bow carried by him and none of them come to the rescue after the injured fell down on the ground. Rather they started vandalising and damaging the house by cutting the walls, doors and windows etc. It was a concerted attack on the deceased and his mother and their very presence inspired Dania Orang to commit the crime of murder. From the nature of the assembly and the behaviour of the appellants and the arms used by them, the only irresistible conclusion is that the common object of the assembly was to commit the murder and to inflict injuries. From the nature of the assembly and the behaviour of the appellants and the arms used by them, the only irresistible conclusion is that the common object of the assembly was to commit the murder and to inflict injuries. While coming to the house of the deceased some of them were even shouting that they would kill the occupants. 32. On a careful appreciation of the entire evidence on record, in our considered view, the prosecution has established the existence of the common object of the unlawful assembly. Even though all the accused appellants did not take part in committing the murder but the manner they conducted themselves shows that they had the common object to do so which clearly attracts Section 149 of the Indian Penal Code. All the members of the unlawful assembly had the knowledge that murder was going to be committed and they were aware of the consequences. 33. Having regard to the facts and circumstances of the case and our discussions above, we are of the view that there is no infirmity in the judgment passed by the learned Sessions Judge in convicting the accused appellants under Sections 147/148/323/302 read with Section 149 IPC and accordingly, the judgment is affirmed. The appeal fails. 34. Send down the LCR along with a copy of this judgment for information and necessary action.