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2018 DIGILAW 555 (GAU)

Krishna Das v. State of Assam

2018-03-28

AJIT SINGH, MANOJIT BHUYAN

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JUDGMENT & ORDER : Ajit Singh, J. The appellants Krishna Das and Hari Das have been convicted under Section 302/34 of the Indian Penal Code and sentenced to imprisonment for life and fine of Rs.1000/- with default stipulation. They are also convicted under Section 342/34 of the Indian Penal Code and sentenced to suffer imprisonment for 1 (one) year. Both the sentences have been directed to run concurrently. 2. The victim of the incident was Sanjib Dutta, aged about 60 years. He was a co-villager of the appellants. 3. According to the prosecution case, the appellants Krishna Das and Hari Das are cousin and they had a quarrel with Sanjib Dutta a few days before the occurrence and they also filed one complaint. However, the matter was later on amicably settled. But on 1/10/2012 at around 8 a.m., Hari Das came to the house of Sanjib Dutta at the instance of Krishna Das and took Sanjib Dutta with him for a walk. At that time Sanjib Dutta was with his wife Bella Dutta (PW-1). When Sanjib Dutta did not return home quite late in the evening, Bella sent her 10 year old son-Tinku Dutta (PW-6)-to the house of Krishna Das in search of her husband. After sometime, Tinku returned home crying and informed his mother Bella that appellants were beating Sanjib Dutta in their house with a rod and lathi by tying his hands and legs and putting a gag in his mouth. Bella then rushed to the house of appellants where she found Sanjib Dutta tied with rope to a pole. Seeing Bella, both the appellants charged her who fled to the Police Station for help. Some neighbours of appellants viz. Alaka Das (PW-2), Smti Milan Dutta (PW-5) and Bharati Das (PW-9) also reached the house of the appellants and there they found Sanjib Dutta in an injured state being tied up. In the meantime, Bella returned with the police and then only Sanjib Dutta could be untied and freed from the clutches of the appellants. The appellants were then arrested by the police. Krishna Giri (PW-3) was going to the market around that time and he too was informed by one Jiten Sarma that the appellants were assaulting Sanjib Dutta and so Krishna Giri also informed the Paneri Police Station over phone. The appellants were then arrested by the police. Krishna Giri (PW-3) was going to the market around that time and he too was informed by one Jiten Sarma that the appellants were assaulting Sanjib Dutta and so Krishna Giri also informed the Paneri Police Station over phone. Sanjib Dutta was rushed to the Paneri Hospital and from there he was discharged after some treatment. He, however, died on the following day morning in his house. 4. Bella lodged the First Information Report (Exhibit-3) at the Paneri Police Station on 1.10.2012 and Md. Mahibur Rahman (PW-11) wrote the same for her. Her verbal information was also recorded vide GD Entry No. 6/12 dated 1/10/2012. Atabur Haque, ASI (PW-13) seized one iron rod vide Exhibit-1 seizure list in the presence of Bella and Babu Dutta (PW-10). He got the inquest done in presence of Krishna Giri and sent the body of Sanjib Dutta for post-mortem examination and recorded the statement of witnesses. 5. Dr. Pradip Kumar Nath (PW-5 (A) ) conducted the post mortem examination on the dead body of Sanjib Dutta. He found (i) abrasional injuries over both knees and (ii) lacerated injury over right forearm. According to him, death was due to cardiac arrest which may be due to blunt injury over chest or the relevant cause leading to cardiac arrest. His post mortem examination report is Exhibit-4. Dilip Kumar Hazong (PW-12) after completing the investigation submitted Exhibit-10 charge-sheet against the appellants for offences under Sections 341/302/34 of the Indian Penal Code (Exhibit-5). 6. During trial, the appellants abjured their guilt. But the trial court relying on the evidence adduced by the prosecution, convicted and sentenced them as aforesaid. 7. After hearing the learned counsel for the parties and perusing the record, we are of the view that the appeal deserves to be partly allowed. Tinku has categorically deposed that he saw the appellants assaulting his father in the house of Krishna Das with a rod and lathi by tying his hands and legs and gagging his mouth with a cloth. This piece of evidence is not shaken during his cross-examination and as such attracts confidence of this court. Tinku has categorically deposed that he saw the appellants assaulting his father in the house of Krishna Das with a rod and lathi by tying his hands and legs and gagging his mouth with a cloth. This piece of evidence is not shaken during his cross-examination and as such attracts confidence of this court. It is his evidence that he informed about the incident to his mother Bella and she has also deposed that Tinku told her about the occurrence after which she went to the house of the appellants and found Sanjib Dutta being tied up there. Alaka Das, Smti Milan Dutta, Ajit Dutta (PW-4), Arati Das (PW-7) and Bharati Das have also supported the testimony of Bella and Tinku that Sanjib Dutta was found in an injured state with his hands and legs being tied in the house of the appellants. All these witnesses had no occasion to lie and their evidence corroborate one another on the fact that Sanjib Dutta was found injured and being tied up in the house of the appellants. Tinku saw the appellants assaulting Sanjib Dutta by tying his hands and feet in the house of Krishna Das and the other witnesses viz. Bella, Alaka Das, Smti Milan Dutta, Ajit Dutta, Arati Das and Bharati Das have equivocally deposed that they also found Sanjib Dutta in the house of the appellants. Therefore, it is proved beyond reasonable doubt that Sanjib Dutta was wrongfully restrained in the house of the appellants and was assaulted. The seizure of iron rod from the house of the appellants would go to show that the said weapon was used for assaulting Sanjib Dutta for which he sustained simple injuries as reflected in the post-mortem report. 8. Although, Alaka Das, Ajit Dutta, Smti Milan Dutta, Smti Arati Das and Smti Bharati Das deposed in the court that they saw appellants assaulting Sanjib Dutta, neither of them said so before the police during investigation and as such their evidence to that effect is subsequently developed and hence not reliable. 9. It is the testimony of Bella, Alaka Das, Krishna Giri, Ajit Dutta, and Bishnu Dutta (PW-8) that Sanjib Dutta was immediately taken to hospital. But the fact remains that he was discharged from hospital on the same day and he died on the next morning due to cardiac arrest. Dr. 9. It is the testimony of Bella, Alaka Das, Krishna Giri, Ajit Dutta, and Bishnu Dutta (PW-8) that Sanjib Dutta was immediately taken to hospital. But the fact remains that he was discharged from hospital on the same day and he died on the next morning due to cardiac arrest. Dr. Pradip Kumar Nath has deposed that Sanjib Dutta sustained minor injuries on his knees and forearm and cardiac arrest may occur due to blunt weapon injury on chest or any relevant cause leading to cardiac arrest. He admitted during his cross-examination that the injuries sustained by Sanjib Dutta were not sufficient to cause death and he did not find any injury on the chest or back upon the dead body of Sanjib Dutta. Had the appellants assaulted Sanjib Dutta on his chest, there would have definitely been marks or signs of injuries on his chest leading to his cardiac arrest. But, absence of any such sign or injury on his chest and back overrules the remote possibility that he suffered cardiac arrest as a result of the injuries inflicted on his knees and forearm. The doctor also opined that cardiac arrest may occur even if a person gets shock. This casts a serious doubt on the prosecution story as it does not negate the probability of the death of Sanjib Dutta due to certain other reasons leading to his cardiac arrest which are not be attributable to the appellants. It is also to be noted that Sanjib Dutta was totally under the control of the appellants and yet they did not cause any injury on his vital parts nor did they cause any grievous injury to him. The appellants, therefore, cannot be held guilty for an offence under Section 302/34 of the Indian Penal Code. We, accordingly, acquit them of the charge under Section 302/34 of the Indian Penal Code and set aside their sentence of imprisonment for life and fine of Rs.1000/-. 10. We, however, having regard to the fact that appellants had caused simple injuries to Sanjib Dutta with an iron rod after wrongfully confining him in their house, hold them guilty for offences under Sections 342 and 324/34 of the Indian Penal Code. The conviction and sentence of the appellants for an offence under Section 342/34 of the Indian Penal Code is, therefore, confirmed. The conviction and sentence of the appellants for an offence under Section 342/34 of the Indian Penal Code is, therefore, confirmed. We also impose a sentence of 3 years rigorous imprisonment to the appellants for an offence under Section 324/34 of the Indian Penal Code. Both the sentences shall run concurrently. The appellants are in jail for more than 7 (seven) years, which is much longer than the sentences awarded to them for both the offences as indicated above. Therefore, they be released forthwith, if not wanted in any other case. 11. The appeal is partly allowed.