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2020 DIGILAW 250 (GAU)

Sunil Rava v. State Of Assam

2020-02-20

MIR ALFAZ ALI, S.HUKATO SWU

body2020
JUDGMENT Mir Alfaz Ali, J. - Heard Mr. M. Dutta, learned counsel for the appellant, Ms. S.Jahan, learned Additional Public Prosecutor, Assam for the State/respondent No. 1 and Mr. S. Ahmed, learned counsel for the respondent No.2. 2. This appeal is directed against the judgment and order passed by the learned Additional Sessions Judge, Kamrup, Amingaon in Sessions Case No. 253/2014, whereby, the learned Sessions Judge convicted the appellant under Section 302 of the Indian Penal Code and sentenced him to rigorous imprisonment for life and fine of Rs. 2,000/- with default stipulation. 3. As per prosecution case on 24-07-2009 at about 9.30 pm, co-accused Dipak Rabha and Sunil Rava (appellant) inflicted injury to the brother of the informant, namely, Ratneswar by hitting him on his head with a piece of timber. Immediately the victim was shifted to the hospital, where he succumbed to the injuries. PW-2, brother of the victim, lodged the FIR (Ext. 2), on the basis of which, police registered Chayygaon P.S. Case No. 121/2009 u/s 302/34 IPC. In course of investigation, police recorded the statement of the witnesses, seized the alleged weapon of offence, prepared inquest report and sent the body for post-mortem examination. Dr. Monoj Kr. Sinha (PW-3) conducted the post mortem examination on the body of the victim. 4. The autopsy doctor (PW-3) found the following injuries on the body of the victim :- wxyz "i) One lacerated injury present over the right temporal parietal region. Size 6"x 1 cm. Stitch with six numbers of black nylon. zyxw wxyz ii) Fracture present both right temporal and parietal bone of the skull. zyxw wxyz iii) Extra-dural haemorrhage present over the temporal and parietal. Size 4 x 3 x 2 cm. zyxw wxyz iv) Sub-dural haemorrhage present over right side of the brain." zyxw wxyz In the opinion of the doctor, death was due to coma resulting from the head injuries, which were ante-mortem in nature and caused by blunt force impact. Time of death was within 6 to 12 hours before the post mortem examination. zyxw 5. On conclusion of investigation, charge-sheet was laid against the present appellant and coaccused Dipak Rabha. 6. In course of trial, learned Sessions Judge framed charge u/s 302 IPC read with Section 34 IPC against both the accused, to which they pleaded not guilty. Time of death was within 6 to 12 hours before the post mortem examination. zyxw 5. On conclusion of investigation, charge-sheet was laid against the present appellant and coaccused Dipak Rabha. 6. In course of trial, learned Sessions Judge framed charge u/s 302 IPC read with Section 34 IPC against both the accused, to which they pleaded not guilty. During trial, the co-accused Dipak Rabha absconded and his attendance could not be procured and eventually trial proceeded against the present appellant. 12 (twelve) witnesses were examined by the prosecution to establish the charge and on appreciation of the evidence, learned Sessions Judge convicted the appellant u/s 302 IPC and awarded sentence as indicated above. 7. Aggrieved by the conviction and sentence, the appellant preferred the instant appeal. 8. Learned counsel for the appellant, Mr. M. Dutta submits, that there was no evidence against the present appellant Sunil Rava showing his involvement in the commission the offence even remotely, inasmuch as, the entire evidence led by the prosecution implicated only the co-accused Dipak Rabha and learned trial court convicted the present appellant with the aid of Section 34 of the IPC, though, there was no material on record to attract the provision of Section 34 IPC in the instant case. 9. Supporting the conviction and sentence of the appellant, Ms. S. Jahan, learned Addl. P.P. submits, that prosecution has adduced sufficient evidence to prove the guilt of the appellant beyond reasonable doubt and therefore, the impugned judgment calls for no interference. 10. We have considered the submission made by the learned counsels and also meticulously gone through the evidence and materials brought on record. 11. The first witness examined by the prosecution was Bhagirath Rabha, PW-1, who testified, that at the time of occurrence he along with Ratneswar Rabha (deceased) went to the house of Mohoram Rabha, where they found Dipak and Sunil, who were already sitting there. According to him, an altercation ensued between the deceased Ratneswar and both the accused and the incident of assault took place. PW-1 further stated, that he and Mohoram Rabha intervened and dispersed them and thereafter, Ratneswar was sitting on a pull-cart. Then, Dipak again came back and hit Ratneswar with a batten on his head from behind and at that time Sunil was also with him. PW-1 further stated, that he and Mohoram Rabha intervened and dispersed them and thereafter, Ratneswar was sitting on a pull-cart. Then, Dipak again came back and hit Ratneswar with a batten on his head from behind and at that time Sunil was also with him. This witness, in his cross-examination admitted, that initially an altercation took place amongst co-accused Dipak, Sunil and others, on the issue of purchasing a Chinese mobile and then he (PW-1), Basistha and Ratneswar assaulted Dipak. He further stated in his cross-examination that Sunil was also assaulted. 12. Pw-2, the informant stated that he had no personal knowledge about the occurrence. PW-4, Saileswar Rabha stated that the incident took place at the house of Mohoram Rabha, where a fight took place. Later on, Mohoram Rabha sent PW-4 to the police station to produce a wooden batten, which was seized vide seizure list, Ext.-3. PW-5 stated that he had no personal knowledge about the occurrence and he was present only at the time of inquest. PW-6 was a hearsay witness. 13. Pw-7, Ranjit Chandra Rabha was declared hostile. 14. Pw-9, Dipali Rabha stated that Dipak Rabha and Sunil Rava assaulted Ratneswar Rabha with a piece of wood in the house of Champa Rabha (PW-10) and the incident took place in the evening. He further stated that as soon as he reached the house of Champa Rabha, both the accused hit Ratneswar by coming from the backside of the house. This witness in her cross-examination confirmed that she had seen Dipak Rabha coming from behind and hitting Ratneswar. She further stated in her cross that Sunil did not assault Ratneswar. 15. Pw-10, Smt. Champa Rabha stated that at about 10 O''clock at night, Ratneswar and Bhagirath were sitting along with her in his courtyard. According to her, at that point of time Dipak Rabha came from behind and hit Ratneswar on his head with a wooden batten. As soon as Ratneswar fell down on the ground, PW-10 called his mother Bala Rabha. 16. Pw-11, Lankupan Rabha stated that quarrel took place amongst Dipak Rabha @ Danga, Sunil Rava and Ratneswar in front of the house of Mohram and he saw the quarrel from his own house. Having seen them engaged in quarrel, PW-11 came forward and dispersed them. After dissuading them from quarrel, he along with Bhagirathi came back and sat at Mohram''s house. Having seen them engaged in quarrel, PW-11 came forward and dispersed them. After dissuading them from quarrel, he along with Bhagirathi came back and sat at Mohram''s house. He (PW-11) had also seen Ratneswar sitting there. As they were sitting, Danga @ Dipak came from the back side of the house of Mohram and hit Ratneswar on the backside of his head with a piece of timber. 17. Thus, the oral testimony of all the four vital witnesses, viz., PW-1, PW- 9, PW- 10 & PW-11 shows that it was only the co-accused Dipak Rabha, who assaulted the victim by hitting him with a wooden stick. Though, PW-9, stated in his evidence-in-chief, that both Dipak and Sunil assaulted Ratneswar with a piece of wood, in his cross-examination, she clearly stated that it was only Dipak, who assaulted Ratneswar and not Sunil. The evidence of PW-3, Dr. Monoj Kr. Singha, the autopsy doctor and the post mortem report also show that Ratneswar sustained only one injury on his head by blunt object. PW-10 apparently did not implicate the accused Sunil Rabha and she stated candidly in her evidence, that only Dipak came from the backside of their house and hit Ratneswar on his head with a piece of wood. Though, according to PW-11, initially an altercation took place between Ratneswar and Sunil and Dipak, he (PW-11) intervened and both of them were separated and thereafter when they were sitting in the courtyard, Dipak came there from behind and hit on the head of Ratneswar (victim). 18. What is abundantly clear from the testimony of all the four vital witnesses, viz., PW-1, PW- 9, PW-10 & PW-10 is that the present appellant had no role in causing injury to the victim Ratneswar. Although, PW-1 and PW-11 stated that initially there was an altercation between Sunil and Dipak with Ratneswar and others, it was subsided on the intervention of PW-11 and thereafter, when they were sitting in the courtyard of PW-10, Dipak suddenly came from the backside of the house of Champa Rabha and hit on the head of Ratneswar. Therefore, the evidence as discussed hereinabove speaks loud and clear, that when Dipak assaulted the victim with the wooden batten, Sunil was nowhere there at the place of occurrence. Therefore, the evidence as discussed hereinabove speaks loud and clear, that when Dipak assaulted the victim with the wooden batten, Sunil was nowhere there at the place of occurrence. Though, there was no direct evidence showing the involvement of the appellant in the offence, learned trial court seems to have convicted the appellant with the aid of Section 34 of the IPC. 19. In order to invoke the provision of Section 34 IPC there must be a common intention in the sense of pre-arranged plan and the offence must have been committed in furtherance of the common intention. Besides, the common intention, the participation of the accused in some form or other, is also required. Considering the circumstance that the appellant was also present at the place of occurrence, learned trial court invoked the provision of Section 34 IPC. Mere presence of the accused is not sufficient to attract the provision of Section 34 IPC, unless there is a common intention. The evidence brought on record speaks loud and clear that there was no common intention of the appellant with co-accused Dipak, inasmuch as, when the victim was assaulted by co-accused Dipak, even the presence of appellant Sunil at the place of occurrence was doubtful. Therefore, in absence of any legal evidence to implicate the present appellant with the offence of assaulting the victim Ratneswar, or in absence of any evidence to show that appellant shared common intention with the co-accused Dipak to assault Ratneswar, the conviction and sentence of the appellant with the aid of Section 34 IPC, in our considered view, is not sustainable. Accordingly, we set aside the conviction and sentence of the appellant Sunil Rava. 20. Consequently, the appeal stands allowed. The appellant Sunil Rava be set at liberty forthwith if not required in any other case. 21. Send back the record.