Gauhati High Court
Akon Gogoi @ Tarun Gogoi vs The State Of Assam on 26 April, 2016
Author: A.K. Goswami
Bench: A. K. Goswami, Rumi Kumari Phukan
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
CRIMINAL APPEAL (J) NO.6 OF 2012
Shri Akon Gogoi @ Tarun Gogoi
........Appellant
,
-Versus-
The State of Assam
........Respondent
B E F O R E
HON'BLE MR. JUSTICE A. K. GOSWAMI
HON'BLE MRS. JUSTICE RUMI KUMARI PHUKAN
For the appellant : Mr. R.M. Choudhury, Amicus Curiae.
For respondent : Mr. K.A. Majumder, Addl. Public Prosecutor, Assam.
Date of hearing & Judgment & order : 26.04.2016.
JUDGMENT & ORDER (ORAL)
(A.K. Goswami, J) Heard Mr. R.M. Choudhury, learned Amicus Curiae representing the accused/ appellant. Also heard Mr. K.A. Mazumdar, learned Additional Public Prosecutor, Assam.
[2] This appeal is directed against the judgment of conviction dated 08.08.2011 of the learned Sessions Judge, Sivasagar passed in Sessions Case No.88(S-C)/2008. By the said judgment, the learned Trial Court, while convicting the appellant under Sections 302/34 IPC, had sentenced him to undergo imprisonment for life and to pay fine of Rs.5,000/- (Rupees Five Thousand), in default of payment, to undergo rigorous imprisonment for 6(six) months.
[3] Namita Gogoi, wife of Pradip Gogoi @ Dibrugarhia, lodged an Ejahar on 15.04.2008 stating that on 13.04.2008, her husband had gone to Balijan Grant for Crl. Appeal (J) No.6/2012 Page 1 of 9 performing 'Bihu Sankirtan' at around 7:00 PM but he had not returned home till 15.04.2008. She went searching for him and came to know that some unidentified persons had killed her husband and threw his body into a ditch of Section No.18 of Tingalibam Tea Estate. Based on the aforesaid Ejahar, Tingalibam Out Post G.D. Entry No.197 dated 15.04.2008 was registered. Subsequently, Sonari Police Station Case No.85/2008 under Section 302 IPC came to be registered.
[4] During the course of investigation of the case, police went to the place of occurrence on the night of 15.04.2008. As part of investigation, inquest on the dead body was done; sketch map was prepared; dead body was sent to Sivasagar Civil Hospital for conducting post-mortem examination, which was accordingly done; statement of witnesses were recorded and statement of some of the witnesses were also recorded under Section 164 Cr.PC. The appellant and one Molua Gogoi surrendered before the Court of learned Magistrate on 30.04.2008 and thereafter, police took them to their custody and had attempted to recover the weapon of offence, a dao, from a river, as shown by the accused persons. The dao could not be recovered as the river was in spate. After completion of investigation, charge-sheet was submitted against the appellant and Molua Gogoi under Section 302 IPC. Subsequently, the case being committed to the Court of Sessions, charge under Section 302 IPC and alternative charge under Sections 302/34 IPC were framed against the appellant and Molua Gogoi. They claimed to be not guilty when the charge was explained to them and they claimed to be tried.
[5] During trial, prosecution examined 19(nineteen) witnesses. The defence did not adduce any evidence. They had taken the plea of denial. It appears that during trial, Molua had expired on 29.11.2008. After completion of the trial, the appellant was examined under section 313 Cr.PC.
[6] PW-1, PW-2, PW-4 and PW-5 had accompanied PW-3, the informant, during search of Pradip Gogoi. PW-6, PW-7 and PW-10 claimed to be eye witnesses to the occurrence. PW-8 is the Judicial Magistrate, who recorded the statements of PW-6, PW-7, PW-10 under Section 164 Cr.PC on 22.04.2008 and proved their statements as Exhibit-4, Exhibit-5 and Exhibit-3, respectively. PW-9 had occasioned to meet the deceased on the morning hours of the date of occurrence. PW-11 is a doctor, who conducted post-mortem examination on the dead body of Pradip. PW-13, PW-14, PW-15 and PW-17 were the witnesses who were taken by the police to help recover the dao from the river near the Crl. Appeal (J) No.6/2012 Page 2 of 9 place of occurrence. However, the dao could not be recovered, as according to them, there was too much of current in the river. Out of the aforesaid witnesses, PW-15 did not actually take part in the recovery operation because of his old age. PW-18 was the Investigating Officer, who conduced investigation on 15.4.2008 and PW-19 is the Investigating Officer after the Ejahar was registered in Sonari Police Station and he had filed the charge-sheet. PW-16 did not contribute much to the prosecution story as he merely had a look at the dead body from a distance.
[7] PW-1 stated that the deceased had done 'Naam Kirtan' on the previous day of the occurrence along with Pradip and some other persons. On the day of the incident, he had gone to the residence of PW-4 to pick him up for doing 'Naam Kirtan'. In the house of PW-4, PW-3 was present and according to him, PW-3 informed that she had heard that her husband was lying dead in a ditch of Section 18 of Tingalibam Tea Estate. He deposed that he along with PW-2, PW-3, PW-4 and PW-5 and some others went to the place of occurrence where they found the dead body under water of a drain with upper portion outside. According to him, after sometime, police had come and had held inquest and thereafter, taken the dead body for post-mortem examination.
[8] PW-2 had deposed that on the previous day of the occurrence, he along with 14/15 other persons including the deceased and PW-1 had done 'Naam Kirtan' in several houses and had stopped performing at around 4:30/5:00 AM and thereafter, they left for their respective houses. On the following day, at around 10:00/11:00 AM, for the purpose of doing 'Naam Kirtan', he had gone to the residence of PW-4 to take him along with him. He found PW-3 present there and she had informed that her husband, Pradip Gogoi, had not returned home since the previous day. She also informed the people present there that her husband was assaulted and accordingly he, PW-1, PW-3, PW-4 and others went to the place of occurrence, where they found the dead body in a ditch. According to him, they had gone to the Tingalibam Police Out Post and informed about the incident and thereafter, police came and held inquest. PW-2 stated that Pradip never consumed alcohol.
[9] PW-3 is the wife of the deceased. According to her, on 13.04.2008, her husband went out to perform 'Sankirtan' but did not return home. The following day also he did not return and she thought that her husband might have stayed in someone's house due to celebration of Bihu. However, at about 12 noon, her neighbours Tajo Ali and Dwip Gohain asked her to make enquiries about her husband and accordingly, she had gone to the Crl. Appeal (J) No.6/2012 Page 3 of 9 residence of PW-4 and had informed him about her husband not returning home. In the meantime, 6(six) persons including PW-1, PW-2 arrived at the house of PW-4 and all of them went towards Tinialibam Tea Estate searching for her husband. On their way, one person, Piti Gohain by name, came and informed them that a man was lying in ditch No.18 of the Tea Estate. According to her, all of them then went there, whereupon they found her husband lying dead. They went to Tinialibam Police Out Post and after informing about the incident, lodged the Ejahar, Exhibit-2, which was written as per her version. She stated that Pradip, her husband, sometimes used to drink country liquor.
[10] PW-4 also deposed about performing 'Sankirtan' along with 20(twenty) persons including the deceased, PW-1, PW-2, which had continued till 5:00 AM (Monday) and thereafter, they went to their respective houses. He stated that at around 12 noon on the following day (Tuesday), PW-3 came to his residence and informed that her husband had not returned home and requested him to go out in search of her husband. In the meantime, PW-1, PW-2 and some other persons had also arrived and they all went towards ditch No.18 of the Tea Estate across the field. On their way, one Piti Boruah came in a run and informed that a dead body was lying in ditch No.18 and all of them went there. On seeing the dead body, they identified it to be that of Pradip Gogoi. Thereafter, they went to Tiniali Police Out Post and informed about the incident, whereupon police came and lifted the dead body from the ditch.
[11] PW-5 deposed about performing 'Sankirtan' throughout the night and stopping it in the wee hours of the morning. On the day of finding out the dead body of Pradip, he had gone to the residence of PW-4 seeking his company to do 'Sankirtan' and he found PW-1, PW-2 and some others along with the wife of Pradip Gogoi, who told them that she had heard a bad news about her husband from a boy. Accordingly, they all went towards ditch No.18 of Tinialibam Tea Estate and while they were proceeding towards that part, a boy by the name of Piti Boruah came running and informed that a dead body was lying in ditch No.18. They all went there and found that a portion of the dead body was under water and the other portion was above the water. Then identified the dead body to be that of Pradip Gogoi and found cut injury on the nape behind the head. The police came and prepared inquest report.
[12] From the evidence of the aforesaid 5(five) witnesses, we find that while PW-1 stated that PW-3 had informed her husband was lying dead in a ditch of Section 18 of Crl. Appeal (J) No.6/2012 Page 4 of 9 Tingaliban Tea Estate, PW-3 as such did not make such categorical statement. PW-3 had stated that on the way only Piti Gohain (PW-4 and PW-5 say Piti Boruah) had informed that a man was lying in ditch No.18 of the Tea Estate. Similar statement was also made by PW-4 and PW-5. PW-2 had stated that she had informed them that her husband was assaulted and thrown on the Tinialibam Road. It appears from their evidence read as a whole that from the house of PW-4, they had all gone out together in search of Pradip towards ditch No.18 and, therefore, it is probable that some information was there with the PW-3 that her husband might be somewhere around ditch No.18. They may not be very certain about the same but when on the way they were informed by Piti Gohain or Piti Boruah that he had seen the dead body in ditch No.18, they all had gone there together.
[13] It is also not very clear from the evidence of the aforesaid 5(five) witnesses as to whether police came there before the Ejahar was lodged or police came to the place of occurrence after the lodging of the Ejahar because while the evidence of PW-1 and PW-5 is to the effect that while they were there in the place of occurrence, police had come, the other witnesses had stated that police came after filing of Ejahar.
[14] PW-6 stated that at around 6:00 PM while he was in his house, his neighbor PW-7 called him and hearing a hue and cry, they went and PW-10 also accompanied them. He stated that all 3(three) of them had seen accused Molua Gogoi and Akon Gogoi cutting Pradip Gogoi with a dao and as they had witnessed the crime, both of them had chased them and accordingly, they fled. He also stated that his statement was recorded before the Judicial Magistrate. In his cross-examination, he stated that the place of occurrence is about 1 KM away from his house and that the PW-7 had heard the hue and cry first. It took them about 15(fifteen) minutes to reach the place of occurrence, where they had gone on foot. It was also stated by him that during the evening hours, the labourers engaged themselves in merry making. It was further stated by him that he had not informed anybody about the 2(two) accused persons committing the incident and that he went to the police station alone after 2(two) days of the incident.
[15] PW-7 stated that Molua Gogoi and the appellant Akon Gogoi killed Pradip Gogoi and the incident took place at around 6:00 PM at ditch No.18 of Tinialibam Tea Estate. He stated that hearing a hue and cry in the tea garden, he came out of the house and called PW-6 and in the meantime, PW-10 had also reached there and thereafter, all of them proceeded towards the place of occurrence. He stated that on their arrival, they saw Crl. Appeal (J) No.6/2012 Page 5 of 9 accused Molua Gogoi hacking Pradip with a dao and the appellant along with Molua Gogoi had chased them and they fled the scene. In his evidence, he further stated that in the statement given by him before the Judicial Magistrate, he had stated that Molua Gogoi had hacked Pradip Gogoi in his neck with a dao and Akon Gogoi, i.e. the appellant, had chased them. In cross-examination, he also stated that the place of occurrence is about 1 KM from his house and it took about half an hour to reach the place of occurrence from his house. It is further stated by him that on the following day of the incident, police had come looking for them and a person by the name of Timri Praja had informed the police about them but the police could not find them. He stated that all of them went together to the police station accompanied by Rupeswar Changmai (PW-2), who had also borne their expenses of travel of coming to the Court.
[16] PW-9 had stated that in the morning at around 9:00 AM of 1st day of Bohag (14th April), Pradip had come to his house and when 2(two) female labourers came to his house, Pradip had rebuked them in filthy language and that Pradip was unsteady due to influence of alcohol. He stated that he heard later on that Molua Gogoi had killed Pradip on that day. He, however, stated that he did not know the names of the 2(two) women.
[17] PW-10 stated that while he was at home, his friends, PW-6 and PW-7, informed him at about 6:00 PM that there was a hue and cry nearby and they had to go to see what is happening and accordingly, they went to near the ditch No.18 of Tinialibam Tea Estate. He stated that they saw Molua Gogoi and Akon Gogoi cutting Pradip with a Naga dao and seeing them, the appellant had chased them brandishing a lathi. They fled from the scene and on the next day when he came for his works, people informed him that Pradip had been cut to death. In his cross-examination, he stated that they saw Molua Gogoi cutting Pradip and Rupeswar Changmai (PW-2) had informed the police about the incident. It is stated that he had also told PW-2 about the incident and then PW-2 had taken them to the police station.
[18] From the evidence of PW-6, it had come out that he had not informed anybody about witnessing the murder committed by the appellant and another. PW-7 also did not say specifically that he had informed anyone about the occurrence. However, he denied a suggestion that he had not informed any person. But fact remains that till about 11:30 AM of the next morning, dead body was not recovered. PW-10 stated that he had informed about the said incident to the villagers as well as to Sri Rupeswar Changmai Crl. Appeal (J) No.6/2012 Page 6 of 9 (PW-2) immediately after witnessing the occurrence, but conspicuously, in the evidence of PW-2, there is nothing to indicate that he had been informed by PW-10. Only statement made by PW-2 in this connection was that he had gone to the residence of PW-4, Dulen Gohain for the purpose of taking him to 'Naam Kirtan' where he came to learn about Pradip Gogoi not returning home from Namita Gogoi, who had, by that time, reached there for the purpose of searching Pradip Gogoi.
[19] From the cross-examination of PW-6 and PW-7, it appears that residence of PW-6 and PW-7 are at a distance of 1 KM from the place of occurrence and that PW-7 first heard hue and cry. PW-7 was in his residence and PW-6, PW-7 and PW-10 are of the same area. According to PW-7, it had taken them half an hour to reach the place of occurrence after hearing hue and cry. It is doubtful that the incident of assault would have continued for half an hour. From the cross-examination of PW-7, it has also come out that police had come looking for PWs-6, 7 and 10 and it is also on record that PWs-6, 7 and 10 were not available when police had come. Why the police had come looking for them is quite baffling and there is no explanation whatsoever. The conduct of PWs-6, 7 and 10 in not immediately informing about the incident is very unusual, having regard to the fact that they also knew the victim, Pradip Gogoi. In the aforesaid factual background, we are not inclined to give much credence on the veracity of their statements.
[20] PW-10 had stated that he had informed about the occurrence to PW-2 and that he had taken them to the police station but PW-2 did not say a word in that regard. Suggestions were given to PW-10 that he had deposed falsely on being tutored by PW-2. It is also noticeable that while PW-3, the wife of the deceased, had stated that her husband used to consume liquor occasionally, a very emphatic statement was made by PW-2 that the deceased never drank liquor. From the evidence of PW-9, it also appears that on the day of the incident, the deceased was found to be under the influence of liquor.
[21] Even if for the sake of argument it is accepted that PW-6, PW-7 and PW-10 had witnessed the assault, it will be apparent that in their Section 164 Cr.PC statement they had attributed inflicting of the dao blow on Pradip by Molua Gogoi. They had also stated that the appellant had chased them. In his deposition, PW-6 had implicated both the appellant and Molua with the hacking of Pradip. PW-7 and PW-10, however, stated that they only saw Molua giving dao blow upon Pradip.
Crl. Appeal (J) No.6/2012 Page 7 of 9[22] PW-10 stated that the present appellant was at a distance of 5 Nal, which, according to the learned counsel for the parties, is about 60 feet. The only consistent accusation made against the present appellant is that when PWs-6, 7 and 10 appeared at the place, the present appellant had chased them with a lathi. That by itself, in our considered opinion, cannot rope in the appellant for the purpose of conviction under Section 302 IPC when the appellant was at a considerable distance away from the place where the assault had taken place. Besides, no other materials have been brought on record to show the common intention of the appellant with Molua, either before or at the place of occurrence.
[23] Section 34 IPC lays down a principle of joint liability in the doing of a criminal act. The essence of that liability is found in the existence of 'common intention' animating the accused leading to the doing of a criminal act in furtherance of such intention. A perusal of Section 34 IPC would clearly indicate that there must be two ingredients for convicting a person with the aid of Section 34 IPC. Firstly, there must be a common intention and secondly, there must be participation by the accused persons in furtherance of the common intention. Common intention is a state of mind of an accused which can be inferred objectively from his conduct displayed in the course of commission of crime and also from prior and subsequent attendant circumstances. Therefore, in order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of mind of all the accused persons to commit the offence before a person can be vicariously convicted for the act of the other.
[24] On a totality of the circumstances, we are of the opinion that it will be highly unsafe to convict the appellant on the basis of the evidence of PWs-6, 7 and 10 and taking that view, we allow this appeal. Accordingly, the appellant is acquitted and set at liberty.
[25] We record our appreciation for the assistance rendered by Mr. R.M. Choudhury, learned Amicus Curiae and for his assistance, it is hereby provided that he will be entitled to a hearing fee of Rs.7,500/- (Rupees Seven Thousand Five Hundred), which shall be paid to him by the Assam State Legal Services Authority, Assam.
[26] Having regard to the facts and circumstances of the case, we recommend grant of compensation under Section 357-A Cr.PC to the wife of the deceased and the District Crl. Appeal (J) No.6/2012 Page 8 of 9 Legal Services Authority, Sivasagar shall decide the quantum of compensation to be awarded to the wife of the deceased.
[27] Let a copy of this judgment and order be forwarded to the District Legal Services Authority, Sivasagar, immediately.
[28] The Registry shall transmit the case records to the learned Court below.
JUDGE JUDGE
M. Sharma
Crl. Appeal (J) No.6/2012 Page 9 of 9