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2021 DIGILAW 132 (GAU)

Dipak Naik v. State Of Assam

2021-02-15

MIR ALFAZ ALI, SUMAN SHYAM

body2021
JUDGMENT M.A. Ali, J. - Heard Mr. N.J. Das, learned Amicus Curiae in Crl. A. (J) 39/2019 and Dr. B.N. Gogoi, learned amicus curiae in Crl. A. (J) 40/2019 for the appellants and Mr. M. Phukan, learned Addl. P.P., Assam for the respondents State. 2. Both the jail appeal arose out of the judgment and order dated 10.12.2018 rendered by the learned Sessions Judge, Karbi Anglong in Sessions Case No. 48/2015. By the said judgment, the appellants were convicted under Section 302 IPC R/W Section 34 IPC and each of them was sentenced to rigorous imprisonment for life and fine of Rs. 2000/-, in default, to simple imprisonment for three months. 3. The case of the prosecution in brief was that on 16.06.2014, Debaru Juria (since deceased) went to pay visit to the house of Sanjib Topno along with Sri Bishal Porja, where the appellants Dipak Naik, Karia Juria and Babul Juria assaulted the deceased Debaru Juria and his friend Bishal Porja and thereby caused injuries to them. Initially both the injured persons went to Bokajan hospital for treatment, where from they were discharged after providing primary treatment and they came back home. However, on 29.03.2014, the health condition of Debaru Juria deteriorated and as such he was admitted in Bokajan Civil Hospital, where he succumbed to the injuries on the same day at about 10 AM. After the death of the deceased Debaru Juria, an FIR was lodged by his younger brother, on the basis of which, police registered Khatkhati P.S. Case No. 23/2014 under Section 302/34 IPC and eventually submitted charge sheet against the present appellants, upon completion of the investigation. 4. During trial, charges were framed against the appellants under Section 302 R/W Section 34 IPC, to which, both of them pleaded not guilty. In order to substantiate the charges, prosecution examined 8 witnesses including the doctor. 5. Pw-4 is the doctor, who conducted the autopsy found the following injuries - "multiple bruises seen on the left face and neck." "Flail chest of the right side below right nipple region" and "multiple fractures on 7, 8 and 9 ribs on both the sides." In the opinion of the doctor, the death was due to shock following fracture of ribs and lung hemorrhage. The finding of the autopsy doctor has not been put to challenge during cross examination. 6. The finding of the autopsy doctor has not been put to challenge during cross examination. 6. Pw-1, who was an eye witness to the occurrence testified that when the PW-3, Bishal Porja and deceased Debaru Juria were taking tea in his house at about 7.30 O'clock in the evening, Karia Juria (appellant), Dipak Naik (appellant) and one Babul Juria entered into his house and assaulted both Bishal Porja and the deceased Debaru Juria and consequently both of them sustained injuries. The police was informed, who send both the injured to Bokajan CCI Hospital. He further stated that later on, Debaru Juria succumbed to the injuries. 7. Pw-3 being an injured witness deposed that on the day of occurrence, he along with deceased Debaru Juria went to collect their wages due from a person of Karbi community and they stayed in the house of the sister of Debaru Juria as it was already dark. While they were in the house of the sister of Debaru Juria, both the appellants as well as Babul Porja came there and mounted assault on them with lathi and dao and thereby inflicted serious injuries to both of them. Immediately after the occurrence, a police patrolling party arrived there and took both of them to Bokajan Hospital. He further stated that after staying one night in the Bokajan hospital, he and the deceased Debaru Juria returned to their respective homes. He further stated that after three days of the occurrence, the deceased again fell ill and he was admitted in the Bokajan Civil Hospital, where he died because of the injuries. Though, both these eye witnesses were subjected to cross examination, nothing material, capable of creating any dent to their testimony, could be elicited, and as such, the evidence of these two vital witnesses, one being the injured remained unshaken. 8. Pw-5 deposed that after the occurrence, the appellant Dipak Naik came to his house and informed that a quarrel had taken place in the house of Sanjib Topno. Thereafter he accompanied the appellant Dipak Naik to the house of Sanjib Topno, where he found the other accused persons. He also stated to have found the deceased Debaru Juria sitting there. According to him, the appellants left the place on his request and Sanjib Topno (PW-1) took the injured to hospital. 9. Pw-2 was not an eye witness of the occurrence. He also stated to have found the deceased Debaru Juria sitting there. According to him, the appellants left the place on his request and Sanjib Topno (PW-1) took the injured to hospital. 9. Pw-2 was not an eye witness of the occurrence. He was basically a witness to the inquest report. The PW-6 & PW-7 were the reported witnesses, whom the injured and the deceased reported about the occurrence later on. 10. Pw-8 was the Investigating Officer, who deposed that upon receipt of the formal FIR (Ext.4) on 29.03.2014 at Khatkhati Police Station, the Officer-in-charge of the police station registered a case and he was entrusted to investigate the case. PW-8 further deposed that before lodging the formal FIR on 29.03.2014, the injured Debaru Juria (since deceased) and Babul Juria came to the police station on 26.03.2014 at about 8.40 PM and informed that the accused persons assaulted them. On the basis of the said oral information, he made the GD entry No. 861 at Khatkhati Police Station and send both the injured persons to hospital for treatment with a requisition. He also advised them to lodge a formal written FIR. The GD entry No. 816 dated 26.03.2014 has been proved as Ext.5. 11. Appreciating the above evidences, learned Sessions Judge convicted the appellants and awarded sentence as indicated above. 12. Assailing the impugned judgment, Mr. N.J. Das, learned amicus curiae appearing for the appellant Dipak Naik, referred to the cross examination of PW-1 to submit, that the 'dao ' was in the hand of Babul Juria and as such the appellant Dipak Naik could not have been convicted with the aid of Section 34 IPC, inasmuch as, the prosecution has not been able to prove, that the appellant Dipak Naik shared a common intention with Babul Juria (not accused) and Karia Juria. It is however, the contention of both the learned amicus curiae, that on the basis of the evidence brought on record, the appellants could not have been convicted under Section 302 IPC, at best, a conviction could be recorded under Section 325 IPC. Learned Addl. P.P., Mr. M. Phukan also fairly submits that this is not a case of murder. However, the appellant would be liable for culpable homicide, not amounting to murder. 13. Learned Addl. P.P., Mr. M. Phukan also fairly submits that this is not a case of murder. However, the appellant would be liable for culpable homicide, not amounting to murder. 13. On our assessment of the evidence, we find that both PW-1 & PW-3 deposed that the appellants and Babul Juria assaulted the deceased Debaru Juria and Bishal Porja. It is also in the evidence of PW3, that the assailants attacked them with 'dao' and 'lathi'. Though, it is not discernible with clarity as to who assaulted with 'lathi' or who assaulted with 'dao,' what is clearly established is all the three persons participated in the offence, inasmuch as, the prosecution evidence to that extent remained undented. Section 34 IPC, lays down the principle of constructive liability and as such the specific act attributable to a particular person or the weapon used by any one or each of the assailants is not material. Because the essence of the provision of Section 34 IPC is the common intention or simultaneous consensus of minds of the person participation in the offence to bring out a particular result. Though, participation of all the accused is one of the important ingredients for invoking Section 34 IPC, it is not necessary to prove exactly what part was played by each of them. In view of the clear evidence that all the three persons named in the FIR came together to the place of occurrence and participated in the offence, it cannot be said that the appellant Dipak Naik did not share the common intention with the co-accused, only because, the 'dao' was in the hand of another accused. 14. What is discernible from the medical evidence brought on record is that all the injuries were caused by blunt object and the external injuries were superficial in nature. Although, as per the medical evidence, the deceased sustained fracture of ribs and there might be some other internal injuries, in view of superficial nature of the external injuries and the use of blunt weapon, neither the injured including the deceased nor the doctor took the injuries seriously and therefore, after providing preliminary treatment, both the injured were allowed to leave the hospital and they went to their respective homes and did not go for further treatment. It is also evident that after three days of the occurrence, when the deceased Debaru Juria fell ill, he was again admitted in the hospital, where he died and only after death of Debaru Juria, a formal FIR was lodged. Therefore, till the deceased fell ill after three days, the deceased also did not take the injuries seriously. The evidence of PW-3, the injured witness as well as PW-8, the Investigating Officer, that immediately after the occurrence, both the injured visited the police station and informed the police about the occurrence, who made a GD entry and advised them to lodge a formal written FIR, also suggested that the police also did not appears to have taken the injuries sustained by the deceased seriously. 15. The evidence of PW-5, that the appellant Dipak Naik went to his house to inform him about the quarrel, which took place in the house of Sanjib Topno and PW-5 accompanied the appellant Dipak Naik to the place of occurrence, where he found the deceased Debaru Juria sitting with the other accused persons awaiting arrival of the PW-5 and that on the request of PW-5, Sanjib Topno took the deceased and PW-3 to hospital and the accused persons left the place of occurrence also suggests that though, a quarrel took place and the deceased and PW-3 were assaulted, the appellants did not have the intention to cause death or any grave injuries which might cause death. Had they harbour any such intention to cause death, the appellant Dipak Naik would not have informed the PW-5 about the occurrence nor the other co-accused remained sitting at the place of occurrence with the deceased after inflicting the injuries which were seemingly superficial, till arrival of the PW-5. The nature of external injury as evident from the medical evidence also suggests that any ordinary or a common man would not consider such injuries to be fatal or that such injuries might cause death of a person in the ordinary course of nature. Therefore, in the attending facts and circumstances, no knowledge also can be attributed to the appellants, that the injuries inflicted by them might cause death. In view of all these facts and circumstances, we are of the considered opinion that the primary ingredient to constitute an offence of murder or culpable homicide was absent in the instant case. Therefore, in the attending facts and circumstances, no knowledge also can be attributed to the appellants, that the injuries inflicted by them might cause death. In view of all these facts and circumstances, we are of the considered opinion that the primary ingredient to constitute an offence of murder or culpable homicide was absent in the instant case. However, from the nature of injury, the nature of weapon used, the part of the body where the injuries were inflicted and the post occurrence conduct of the appellants as well as the injured including the deceased clearly demonstrate that the appellants certainly had the intention to assault or cause hurt to the deceased, which unfortunately became fatal. 16. Therefore, when there was no intention to cause death or intention to such grave injury as is likely to cause death nor the appellants had the knowledge that the injuries inflicted by them might cause death of the victim, the conviction and sentence of the appellants, in our considered opinion cannot be sustained. Accordingly, we set aside the conviction and sentence of the appellants under Section 302 IPC, instead, convict them under Section 325 IPC for voluntarily cause grievous hurt. 17. From the record, we have noticed that the appellants were arrested on 14.04.2014 and 18.04.2014 respectively and since then they are in jail nearly for seven years. The maximum punishment provided for the offence under Section 325 is seven years and fine. Since the appellants have completed almost seven years in jail, we are of the view that imprisonment for the period, which the appellants have undergone in custody during investigation and trial would meet the ends of justice. Accordingly, we sentence the appellants to imprisonment for the period, which they have already undergone in custody. The sentence of fine awarded by the learned trial court, in our view, calls for no interference. However, we reduce the default sentence from three months to seven days. Upon payment of fine or upon serving out the default sentence of seven days, the appellants shall be released from the jail, if not required in any other case. 18. With the modification in the conviction and sentence as indicated above, both the appeal stand partly allowed and disposed of. 19. Appreciating the assistance rendered by Mr. N.J. Das and Dr. B.N. Gogoi, learned Amicus Curiae, we hereby provide that they will be entitled to Rs. 18. With the modification in the conviction and sentence as indicated above, both the appeal stand partly allowed and disposed of. 19. Appreciating the assistance rendered by Mr. N.J. Das and Dr. B.N. Gogoi, learned Amicus Curiae, we hereby provide that they will be entitled to Rs. 7500/- each as professional fee, which shall be paid to them by the Gauhati High Court Legal Services Committee upon production of a copy of this judgment. 20. Send down the LCR.