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2016 DIGILAW 777 (GAU)

Arun Mandal v. State of Assam

2016-08-16

AJIT SINGH, N.CHAUDHURY

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JUDGMENT AND ORDER : Ajit Singh, J. Appellants Arun Mandal and his wife Radharani Mandal have been convicted under Section 302/34 of the Indian Penal Code and sentenced to imprisonment for life and fine of Rs.5,000/- with default stipulation. Appellant Arun Mandal has also been convicted under Section 342 of the Indian Penal Code and sentenced to fine of Rs.500/- with default stipulation. Co-accused Ranjit Mandal has been acquitted of the charges by the trial court. 2. The victim of the incident was Indrajit Roy, aged about 20 years. 3. According to the prosecution, Indrajit Roy and the appellants lived in the same villalge Kanwarpur Futukai. On the night of 20.10.2009, Indrajit Roy was called by Arun Mandal to his house and there, he and his family members beat Indrajit Roy to death after tying his legs with a rope. Ejahar exhibit 2 of the incident was lodged by Ranjit Roy (PW-2), elder brother of Indrajit Roy, on 21.10.2009, at Dolohat Police Out Post, falling within the jurisdiction of Police Station Laluk. In the ejahar, Ranjit Roy named Arun Mandal, Ranjit Mandal, Sadhan Mandal, Radhamoni Mandal, Paresh Sarkar and Naresh Sarkar as assailants of Indrajit Roy. The police, on reaching the place of occurrence, made the inquest, on the body of Indrajit Roy, which was found lying on the varandah of Arun Mandal’s house. The inquest report states that the legs of Indrajit Roy were tied with a plastic rope against one the posts in the verandah. The police also seized the plastic rope with three bamboo pegs by which legs of Indrajit were tied. 4. Dr. Abdus Sattar Talukdar (PW-9) conducted the most mortem examination on the body of Indrajit Roy. The doctor found the following injuries:- (i) Abrasion on the face and both eye lids. (ii) Bleeding from right ear (iii) Swelling at right temporal mastoid regions (iv) Sharp cutting wound on right wrist in redial side 1½ “x 1” x bone deep with presence of bleeding. (v) One superficial wound on left hand near middle finger. (vi) Two parallel superficial wound parallel, lateral to left nipple of 1 ½” in size. (vii) Presence of bleeding from right hand radial artery at wrist joint. (viii) Fracture of sternum, rupture of the pleurae, rupture of left lung and right lung. (ix) Some ruptured vessels in the thoracic cavity. (v) One superficial wound on left hand near middle finger. (vi) Two parallel superficial wound parallel, lateral to left nipple of 1 ½” in size. (vii) Presence of bleeding from right hand radial artery at wrist joint. (viii) Fracture of sternum, rupture of the pleurae, rupture of left lung and right lung. (ix) Some ruptured vessels in the thoracic cavity. The doctor in his post mortem examination report exhibit 9 opined that the cause of death of Indrajit Roy was due to shock and hemorrhage as a result of closed chest injury and cutting of right radial artery. 5. During investigation, the police did not find any evidence against Paresh Sarkar and Naresh Sarkar. They were, therefore, not charge sheeted. The other accused Sadhan Mandal was found to be juvenile in conflict of law. He was, therefore, put to trial as juvenile before the appropriate forum. 6. The trial court relying upon the evidence of eye witnesses – (i) Abhilash Roy (PW-1), Girindra Mandal (PW-3), Niranjan Karmakar (PW-4) and Tarani Roy (PW-5) convicted and sentenced appellants – Arun Mandal and his wife Radharani Mandal as mentioned above. The trial Court, however, in the absence of any evidence against Ranjit Mandal, acquitted him of the charges. Ranjit Mandal is brother of Arun Mandal. 7. Abhilash Roy (PW-1) is neighbour of Arun Mandal. He has testified that on hearing cries of a girl from the house of Arun Mandal, he woke up and heard Radharani Mandal shouting that they have caught a thief. According to the evidence of Abhilash Roy, he then went to the house of Arun Mandal and saw Radharani Mandal beating Indrajit Roy on his back with a split of bamboo and Arun Mandal giving fist and kick blows to him. Abhilash Roy has also testified that Arun Mandal after informing him that he would take Indrajit Roy to the Police Station went out on his bicycle. Girindra Mandal (PW-3) is also neighbour of Arun Mandal. According to the evidence of Girindra Mandal, on hearing cries from the house of Arun Mandal, he went there and saw Arun Mandal and Radharani Mandal inflicting fist and kick blows to Indrajit. This witness says that after seeing this, he returned home and on the next morning came to know that Indrajit Roy had succumbed to his injuries. The evidence of Niranjan Karmakar (PW-4) is similar as that of Abhilash Roy. This witness says that after seeing this, he returned home and on the next morning came to know that Indrajit Roy had succumbed to his injuries. The evidence of Niranjan Karmakar (PW-4) is similar as that of Abhilash Roy. But, he says that Ranjit Mandal (acquitted co-accused) came to his house and took him to the house of Goanburah (Village Headman) Mahendra Gogoi (PW-10) to report that a thief had been caught in the house of Arun Mandal and thereafter, Village Headman even visited the house of Arun Mandal. Tarani Roy (PW-5) has also testified that he saw Arun Mandal giving kick blows to Indrajit Roy and Radharani Mandal beating him with a split of bamboo in their house. Mahendra Gogoi (PW-10) has corroborated the evidence of Niranjan Karmakar that he and Ranjit Mandal had come to his house and informed that a thief had been caught whereafter all of them went to the house of Arun Mandal. From the evidence of these witnesses, it is established that Indrajit Roy was beaten to death by Arun Mandal and his wife Radharani Mandal in their house. Also the dead body of Indrajit Roy with the legs tied was found in the house of Arun Mandal and no explanation has been given by him about the injuries on the dead body of Indrajit Roy. The evidence of eye witnesses also stands substantially corroborated by the post mortem examination report exhibit 9. 8. In view of the evidence of eye witnesses and the post mortem examination report, the learned counsel for the appellants has not assailed the prosecution story, which is well founded and fully proved. Accordingly, we confirm the findings of the trial court that appellants – Arun Mandal and his wife Radharani Mandal were the perpetrators of the crime. 9. Learned counsel for the appellants has, however, argued that even accepting the prosecution version in totality, the offence against the appellants would not be under Section 302 of the Indian Penal Code, but under Part I or Part II of Section 304 of the Indian Penal Code. We find sufficient force in this submission. Even according to the evidence of the eye witnesses, the incident took place around 12 O’clock in the night on the date of incident. We find sufficient force in this submission. Even according to the evidence of the eye witnesses, the incident took place around 12 O’clock in the night on the date of incident. The eye witnesses have also stated that they heard the cries of a girl from the house of Arun Mandal whereafter they saw Arun Mandal and Radharani Mandal beating Indrajit Roy by giving fist and kick blows and also with a split of bamboo. These witnesses have further said that they heard the shouting of Radhamoni Mandal that a thief had been caught. Not only this, according to the evidence of Niranjan Karmakar (PW-4), Ranjit Mandal even came to him and then both went to the house of Goanburah (Village Headman) Mahendra Gogoi to inform that a thief had been caught. This fact has also been admitted by Mahendra Gogoi. Although Ranjit Roy (PW-2) in his evidence has said that Indrajit Roy had gone to the house of Arun Mandal on the latter’s invitation, he has admitted in the cross examination that no such invitation was given before him and he came to know about it through his mother. The mother of Ranjit Roy has not been examined. Therefore, it seems that Indrajit Roy went to the house of Arun Mandal at odd hours in the night with some ulterior motive, but was caught and beaten up. The legs of Indrajit Roy were also tied with a plastic rope against the post, so that he may not run away and in the morning, he be handed over to the police. But Indrajit Roy succumbed to the injuries caused to him due to beating by Arun Mandal and his wife Radharani Mandal. Having regard to the circumstances, in which the incident took place, particularly the act of appellants – Arun Mandal and his wife Radharani Mandal, we are unable to believe that they had any intention to cause the death of Indrajit Roy. It can, however, be safely held that they had the knowledge that by causing injuries to Indrajit Roy with split of bamboo and by giving fist and kick blows, the latter would die. 10. It can, however, be safely held that they had the knowledge that by causing injuries to Indrajit Roy with split of bamboo and by giving fist and kick blows, the latter would die. 10. Consequently, we set aside the conviction of the appellants – Arun Mandal and his wife Radharani Mandal under Section 302/34 of the Indian Penal Code and sentence of life imprisonment awarded to them and instead, convict them under Section 304 part II/34 of the Indian Penal Code and award a sentence of 5 years rigorous imprisonment. The sentence of fine is however affirmed. The conviction and sentence of Arun Mandal under Section 342 of the Indian Penal Code are also affirmed. The appellants Arun Mandal and his wife Radharani Mandal are in jail and they be released on their undergoing the jail sentence awarded by us. 11. With the above modification, the appeal is partly allowed.