Gauhati High Court
Appellant vs The State Of Assam on 27 December, 2022
Author: N. Kotiswar Singh
Bench: N. Kotiswar Singh
Page No.# 1/43
GAHC010205692016
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.A.177/2016, Crl.A.329/2018, Crl.A.7/2019,
CRL.A.(J)89/2019 and CRL.A.(J)90/2019
Case No. : Crl.A./177/2016
SRI JAGADISH DEORI,
S/O SRI RAMJOY DEORI,
VILL. BALI DEOURIGAON,
P.O. JAMUGURI PACH ALI,
P.S. and DIST. DHEMAJI, ASSAM.
......Appellant.
VERSUS
THE STATE OF ASSAM,
......Respondent
Advocate for the Petitioner : MR.U DUTTA
Advocate for the Respondent : MR. R DEV
Linked Case : Crl.A./7/2019
PUNARAM KURMI
S/O LT. PAHARIA KURMI
NO. 2 PACHNOI
DIZOO CHAPARI
P.S. NORTH LAKHIMPUR
DIST. LAKHIMPUR
ASSAM.
......Appellant.
VERSUS
Page No.# 2/43
1. THE STATE OF ASSAM,
REPRESENTED BY PP
ASSAM
2:MD. AIJUL ALI
S/O LT. ABDUL ALI
VILL. DIZOO CHAPARI
P.S. NORTH LAKHIMPUR
DIST. LAKHIMPUR
ASSAM.
......Respondents.
------------
Advocate for : MR. A. GANGULY, MR. B PRASAD Advocate for : PP ASSAM appearing for THE STATE OF ASSAM and ANR Linked Case : Crl.A./329/2018 SRI BABUL BORA @ BOXON S/O- LATE. BHOGRAM BORA R/O- VILL- PACHNOI NO.2 P.O.- DIZOO P.S.-NORTH LAKHIMPUR DIST- LAKHIMPUR ASSAM PIN-787001.
......Appellant.
VERSUS
1.THE STATE OF ASSAM REPRESENTED BY PP ASSAM.
2:MD. AIZUL ALI S/O- ABDUL ALI R/O- VILL- NP.1 DIZOO CHAPARI P.S.-NORTH LAKHIMPUR DIST- LAKHIMPUR ASSAM.
PIN- 787031.
......Respondents.
Page No.# 3/43
------------
Advocate for : MR. T.H. HAZARIKA, MR.M CHETIA Advocate for : PP ASSAM appearing for THE STATE OF ASSAM and ANR Linked Case : CRL.A(J)/89/2019 KANO BORA @ BABA GOGOI NORTH LAKHIMPUR ASSAM.
......Appellant.
VERSUS
THE STATE OF ASSAM
REP. BY PP
ASSAM. ......Respondents.
------------
Advocate for : MR. AZAD AHMED, AMICUS CURIAE
Advocate for : PP
ASSAM appearing for THE STATE OF ASSAM
Linked Case : CRL.A(J)/90/2019
GHURON GORH
NORTH LAKHIMPUR
ASSAM.
......Appellant.
VERSUS
THE STATE OF ASSAM
REP. BY PP
ASSAM.
......Respondents.
------------
Advocate for : MR. MRINMOY DUTTA, AMICUS CURIAE
Advocate for : PP
ASSAM appearing for THE STATE OF ASSAM
Page No.# 4/43
BEFORE
HON'BLE MR. JUSTICE N. KOTISWAR SINGH
HON'BLE MRS. JUSTICE SUSMITA PHUKAN KHAUND
Date of Hearing : 26.09.2022
Date of Judgment : 27.12.2022
JUDGMENT AND ORDER (CAV)
[Susmita Phukan Khaund, J.]
Heard Mr. U. Dutta, learned counsel for the appellant in Crl.A.177/2016; Mr. T.H. Hazarika, learned counsel for the appellant in Crl.A.329/2018; Mr. A. Ganguly, learned counsel for the appellant in Crl.A.7/2019; Mr. Azad Ahmed, learned Amicus Curiae in CRL.A.(J) 89/2019 and Mr. Mrinmoy Dutta, learned Amicus Curiae in CRL.A.(J)90/2019. Also heard Ms. B. Bhuyan, learned Senior counsel as well as the Additional Public Prosecutor, Assam for the State.
2. These five appeals, namely, Crl. Appeal 177/2016 filed by Jagadish Deori, Crl. Appeal 329/2018 filed by Babul Bora @ Boxon, Crl. Appeal 7/2019 filed by Punaram Kurmi, Crl. A (J) 89/2019 filed by Kano Bora @ Baba Gogoi and Crl. A (J) 90/2019 filed by Ghuron Gorh have been tagged and heard together as these appeals arose out of the same judgment dated 03.12.2014 rendered by the learned Sessions Judge, Lakhimpur, North Lakhimpur in Sessions Case No.89(NL)/2011 by which the five appellants have been convicted for committing offence under Sections 342/323/302/34 of IPC acquitting one of the co-accused, Bijoy Pagag, of the aforesaid charges.
3. As we proceed to examine the grounds raised in this batch of appeals, it will be appropriate to briefly refer to the basic facts and evidences, which have been brought on Page No.# 5/43 record.
4. Criminal justice machinery was set into motion after a First Information Report was lodged on 16.09.2007 by one Md. Aizul Ali, complainant herein, who was examined as PW4 in the trial to the effect that at around 1.30 pm on 15.09.2007, some persons of a nearby village called his mother, Mustt. Jeleka Khatoon, his father Abdul Ali and elder brother, Tajabur Ali, from their house to a field near No.1 Panchnoi LP School where they were tied and assaulted leading to death of his father Abdul Ali and causing grievous injury to his mother Jeleka and elder brother Tajabur and they were left there.
5. On the basis of the said FIR, a police case being North Lakhimpur Police Station Case No.608/2007 under Sections 342/302/325/307/34 of IPC was registered.
6. On completion of investigation, 6 persons including the present appellants were charged for committing offences under Sections 342/302/323/34 of IPC. On being committed to the Court of learned Sessions Judge, Lakhimpur, North Lakhimpur, six accused including the present appellants were charged for committing the following offences:-
Firstly, that the appellants on 15.09.2007 at about 1.30 pm at Dijoo Chapari under North Lakhimpur PS in furtherance of their common intention wrongfully confined Abdul Ali, his wife Mustt. Jeleka Khatun and his son Md. Tajabur Ali @ Tajabur Islam in the field of No.1 Panchnoi LP School.
Secondly, that the appellants on the same day, time and place, in furtherance of their common intention had committed murder by intentionally/knowingly causing death of Abdul Ali, the father of the informant, Md. Aijul Ali.
Thirdly, that the appellants, on the same day, time and place, in furtherance of their Page No.# 6/43 common intention voluntarily caused hurt to Mustt. Jeleka Khatun and Md. Tajabur Ali and thereby committed an offence punishable under Section 323/34 of the IPC.
7. The prosecution examined as many as 13 witnesses. The accused-appellants were examined under Section 313 of Cr.P.C. All the accused, however, claimed that they were innocent and have been falsely implicated. They also declined to lead evidence in their defence.
8. On the basis of the evidence on record, learned Sessions Judge convicted the present five appellants as mentioned above and sentenced them to undergo Imprisonment for Life with fine of Rs.5,000/- (five thousand) only each, in default, to undergo rigorous imprisonment for 6 (six) months for the offence under Section 302/34 IPC. As regards commission of offence under Section 323/34 and 342/34 of IPC, they were sentenced to pay fine of Rs.1,000/- (One thousand) only, in default, to undergo simple imprisonment for 3 (three) months.
9. As we proceed to examine the appeals, we will briefly refer to the evidences, which have been brought on record.
10. The first witness examined by the prosecution was Smt. Dulumoni Dutta, who identified the accused in the dock, who was managing a fair price shop on behalf of her husband. The said shop was adjacent to their residence. She stated that the occurrence took place at about 7 pm and at that time, she was in the shop. Police came there and asked her to give a lamp and, accordingly, she and her husband came out with a lamp whereupon police took them to a nearby place where they found the dead-body of a person lying more than 100 ft away from their shop. They also saw the mother of the deceased and son of the Page No.# 7/43 deceased sitting there. She stated that she had no knowledge under what circumstance the death occurred and the body was found lying there.
11. In her cross-examination, she stated that she heard the people shouting at the time of occurrence and a number of people from several villages had come to the place of occurrence and she heard from the villagers that the deceased had committed theft of six buffaloes prior to the occurrence. She also stated that on one occasion, the villagers had recovered four stolen cows from his possession.
12. The next witness examined by the prosecution was Mustt. Jaleka Khatoon (PW2). She is the wife of the deceased, Abdul Ali, and mother of injured, Tajabur. She deposed that the occurrence took place on 15.08.2007 at about 1 pm. On the day of the occurrence, she, her husband and her son were sitting in the courtyard of their house when the accused Punaram Kurmi, Babul Bora @ Bhaksan, Kanu Gogoi, Jagadish Deori and some other persons entered into their courtyard and dragged her husband to the house of Ramesh Kurmi. She stated that at that time, she did not see Bijoy Pagag with the accused persons. They also took her son with them and thereafter they were assaulted with dao and lathi. They were then taken to village Pasnoi where the accused persons assaulted her husband and son with lathi as a result of which her husband died on the spot and her son sustained serious injuries on his person. She stated that thereafter, Punaram Kurmi, Ghuran Gorh, Jagdish Deori and the absconded accused Durga Kurmi and Bogai Gorh guarded the dead body of her husband and her injured son while the other accused fled from there. She stated that she remained at the place of occurrence till next day morning and at about 10 am, her daughter-in-law, i.e., wife of her another son, Aizul, arrived at the place of occurrence and, accordingly, reported the incident to her father, who informed the police about the occurrence. Police, thereafter, Page No.# 8/43 arrived and took them to the Court and, thereafter, they were taken to hospital for treatment. She stated that police got her statement and statement of her son, Tajabur, recorded in the Court of Judicial Magistrate.
In cross-examination, she stated that the accused Bijoy Pagag was not involved in the occurrence in any manner. She was subjected to a vigorous cross-examination and she denied the suggestions made by the defence.
13. The next witness examined by the prosecution was Md. Tajabur Islam (PW3), the injured son. He also deposed more or less in similar lines as deposed by his mother (PW3). He, however, in his deposition, mentioned the name of Babul Bora, who had struck a dao blow on his right leg near the knee. He also mentioned that Bijoy Pagag was not at the scene at the time of occurrence.
14. In his cross-examination, he admitted knowing the identity of the accused-persons. He also admitted that he did not name the accused-persons specifically in his statement recorded by the Judicial Magistrate nor of those persons, who dragged them away from their courtyard to the house of Ramesh Kurmi. He denied the suggestion made by the defence that his father was involved in cattle theft and he denied recovery of any buffalo belonging to their village.
15. The next witness examined was Aizul Ali (PW4). He could identify only two appellants, namely, Bhaksan and Ghuran by name whereas in respect of the remaining four appellants, he stated that though he knew them by face, he did not know them by their names. He is the other son of deceased Abdul Ali. He was not an eye witness inasmuch as he stated that he was near Zero in Arunachal Pradesh on the day of occurrence and he came on being informed telephonically by his wife that his father and mother and elder brother were taken Page No.# 9/43 forcibly by some persons from their house. He lodged the FIR on the next day.
16. The next witness examined was Dilip Dutta (PW5), who was a Member of Dizoo Gaon Panchayat. He stated that on the day of the occurrence at around 10 pm, he arrived at his house and learnt from his wife that about 200-250 persons took away Abdul Ali, Jaleka and Tajabur on allegation that they had committed theft of cows in the village. Next day, he heard that Abdul Ali died near the LP School of No.1 Pachnoi Gaon due to the injury sustained. Accordingly, he went to see the dead body where he also found Jaleka Khatoon and Tajabur near the dead body of the deceased. He stated that at about 6 pm on the same day, police arrived and conducted inquest on the dead body of the deceased.
In his cross-examination, he stated that when he asked Jaleka Khatoon about the occurrence, she stated that about 200/250 persons assaulted them.
17. The next witness examined was Md. Hasen Ali (PW6), who was not an eye witness. He came to know about the incident after being informed and thereafter he went to the place of occurrence where he found Abdul Ali lying dead at the place of occurrence. He also found Jaleka Khatun and Tajabur Ali sitting there with injuries on their persons.
18. The next witness examined was Smt. Dipali Kalita (PW7). She stated that on the day of the occurrence, when she went to the shop of her elder brother, she found a dead body lying near the LP School situated at No.1 Ujani Panchnoi and there she found the wife of the deceased and son sitting and later on police arrived there and recorded her statement.
In her cross-examination, she stated that on the day of the occurrence, a thief had been killed and she did not find any injury mark on the wife and son of the deceased though she claimed that she did not know how the deceased died.
Page No.# 10/43
19. The next witness examined was Smti. Arati Gowala (PW8). She also stated that at the time of occurrence, many people assaulted Abdul Ali on the charge of theft. She also mentions presence of Tajabur and Jeleka Khatun at the place of occurrence. However, she stated that she had not seen the people assaulting Tajabur and Jeleka. She stated that on the next day of the occurrence, she came to know that Abdul Ali died because of the assault though she had not seen the accused assaulting the deceased at the time of the occurrence.
In cross-examination, she denied of having stated before the I.O. that she had seen the accused with the gathering.
20. The next witness examined was Smt. Puja Kurmi (PW9), who stated that on the day of the occurrence at about 3 pm, the villagers apprehended Abdul Ali, Aizul Ali, Tazabur Islam and Jeleka Khatun in connection with a theft case and they were taken to No.1 Pachnoi village and were subjected to assault. Next day, she came to know that Abdul Ali died. However, she stated that she did not see the accused standing in the dock amongst the villagers who took the deceased Abdul Ali and the injured Tazabur and Jeleka to No.1 Pachnoi village.
21. The doctor, who examined the injured Jeleka Khatun and Tajabur Islam was Dr. Tulsi Prasad Chutia (PW10) who found the following injuries on the body of Tajabur Islam:-
"1. Laceration of size 1 cm x 1 cm on right anterior superior part of pinna (blood clot).
2. Laceration of size 1 cm x 1 cm on anterior part of right thumb.
3. Swelling tenderness on posterior part of right arm.
4. Laceration of size 2 cm x 1 cm on posterior part of left thigh.
5. Abrasion of size 1 cm x ½ cm on the back.
Page No.# 11/43
22. The doctor found the following injuries on Mustt. Jaleka Khatun:-
"Tenderness swelling on
1. Right arm of the size 3" x 4" x 3".
2. Left lateral upper arm with abrasion on posterior part of left shoulder of size 2" x 1".
3. Linear abrasion on back right side of size 6" x 2".
4. Tender swelling on forehead of size 1 cm x 1 cm."
23. As per the doctor, the injuries were simple and caused by blunt object.
In his cross-examination, the doctor stated that such injuries may be caused due to fall on hard substance.
24. The next witness examined was Anil Kumar Basfor (PW11) who was a Magistrate before whom statements of Md. Tajabur Islam and Mustt. Jaleka Khatun were recorded under Section 164 of Cr.P.C.
25. The next witness examined was Dr. Padum Deori (PW12), who conducted post-mortem examination on the dead body of Abdul Ali. He found the following injuries:-
"Lacerated wound over the left lower leg anterior aspect of size 1x3 cm longitudinal. Bleeding clotted from the mouth and oral cavity present. Stomach was congested with its contents. Brain and spinal cord - Hematoma blood clotted over the left tempo parietal region (subdural). Liver - right lobe ruptured linear. Spleen and kidneys - congested. Bladder - empty. Other organs were found healthy."
26. According to him, death was due to shock as a result of the head injury sustained by Page No.# 12/43 the deceased and these injuries are sufficient to cause death of a person in the ordinary course. There was no cross-examination of the said witness.
27. The next witness examined was SI Badirul Haque (PW13), who was the I/O of the case. He stated that one VDP Secretary had informed him over telephone that a thief was severely assaulted by a mob causing his death in the field of No.1 Pachnoi LP School. Accordingly, he made a GD Entry being GD Entry No.238 dated 16.09.2007 and informed the Officer-in-Charge of North Lakhimpur PS. Later on, an Ejahar was lodged. He carried out the investigation and inquest was conducted by Executive Magistrate in his presence. Dead body was referred to North Lakhimpur Civil Hospital for post mortem examination and injured Mustt. Jaleka Khatun and Tajabur Ali were sent to hospital for treatment. He stated that two accused Bijoy Pagag, Durga Kurmi and Bogai could not be arrested as they were evading arrest.
28. Further reference to his evidence will be made at the appropriate stage.
29. We have gone through the statements of the accused recorded under Section 313 of Cr.P.C. As mentioned above, they have claimed innocence and stated that they have been falsely implicated.
Crl.A. No.329/2018
30. Mr. TH Hazarika, learned counsel for the appellant Babul Bora in Crl. Appeal No.329/2018 submits that in view of the evidence, which have come up in the course of the trial through the mouth of the witnesses, nothing has been specifically mentioned about the role played by the appellant in causing the death of Abdul Ali. In such an event, conviction of the appellant by the learned trial Court under Section 302 IPC cannot be sustained.
Page No.# 13/43
31. It has been submitted that in order to convict an accused under Section 302 IPC, there must be cogent evidence to show the actual role played by the accused in causing death of a person. In the present case, no eye witness has mentioned of any specific role played by accused Babul Bora in causing the death of the deceased. On the contrary there is evidence to the effect that there has been a large mob of about 200/250 persons at the place of occurrence, who were seen to have assaulted the deceased and the injured person but the specific role played by the appellant from amongst the said large mob has not come out clearly in the evidence. Under such circumstances, it would not be appropriate to convict the appellant under Section 302 IPC. At best, he can be convicted under Section 325 IPC.
32. It has been stated that use of any sharp weapon has not been established. The post- mortem report does not mention that injury caused on the deceased were by use of sharp weapon. Though the cause of death was due to head injury, it is not established that such injury was caused by any weapon by the present appellant Babul.
33. Further, the learned trial Court relied on the statement under Section 164 Cr.P.C of PW2 and PW3 in which the appellant was implicated. However, that statement was never exhibited by PW2 and PW3 and, as such, cannot be said to have been proved. Since the said statement recorded under Section 164 Cr.P.C. were not exhibited, the appellant had no obligation to refer to the said statement recorded under Section 164 Cr.P.C., which would implicate the appellant for the purpose of contradiction under Section 145 of the Evidence Act.
34. It has been submitted that the said statements of PW2 and PW3 were not exhibited by the prosecution. Since the statements were not made by the Magistrate but he merely Page No.# 14/43 recorded the said statements, such statements cannot be used for the purpose of cross- examination to discredit the evidence of PW2 and PW3 and, as such, under such circumstances, such incriminating evidence as contained in the statement under Section 164 Cr.P.C. cannot be used by the learned trial Court against the appellant. Crl.A.(J) 90/2019
35. Mr. M. Dutta, learned amicus curiae, appearing for the appellant, Ghuron Gorh in Crl. Appeal (J) 90/2019 while endorsing the submissions advanced by Mr. Hazarika, submits that from the evidence, it appears that there was a mob violence consisting of about more than 200 people and no specific role has been assigned to the present appellant having caused any specific injury on the body of the deceased. In fact, he has been given a clean chit by PW8 and PW9 who had stated that they had not seen the accused physically assaulting the deceased at the time of occurrence. When they had not seen him assaulting the deceased, the question of conviction does not arise. As far as the injured witness, Jaleka Khatoon is concerned, she also does not assign any specific role played by the present appellant though she made a general statement that the accused and others had dragged them from their house to the house of Ramesh Kurmi and, thereafter, to the school. The said PW2, however, mentions of the present appellant and other accused Jagadish Deori, Durga Kurmi and Bogai guarding the dead body of her husband and her injured son but the said witness did not specifically state that it was the appellant who caused the fatal blow on the head of the deceased, which ultimately led to his death. It has been also submitted that from the evidence though reference of using dao is clear, actual use of such weapon is not borne by the record.
Page No.# 15/43
36. Learned amicus curiae, referring to the post-mortem report, submits that there was no sign of injury on scalp, skull and vertebrae, though in respect of brain and spinal cord, there is a finding of hematoma over the left temporoparietal region. Thus, the said injury mentioned in the post-mortem report does not indicate use of any sharp weapon.
37. It has been further submitted that there is also no indication that any lathi has been used. If lathi had really been used, it would have caused certain lacerated injury over the scalp, skull or head, which is also not indicated.
38. Further, it has been submitted that establishment of intention is necessary to convict a person under Section 302 IPC. However, nothing has been brought on record to show that the accused had in association with others conspired to kill the deceased. Since it was a mob, which had apparently assaulted the deceased, it cannot be said that intention to kill has been established on the part of the accused. Nothing has been shown about meeting of mind of the appellants to cause death of the deceased intentionally. Since the evidence shows that it was a mob violence without any specific role assigned to the accused as part of the mob, he cannot be picked up for conviction under Section 302 IPC.
39. Apart from the aforesaid deficiencies, there are inconsistencies in the evidence of the witnesses. Referring to the statements of PW2 and PW3 in their statements recorded under Section 164 Cr.P.C., learned amicus curiae submits that from the said statements, it appears that dead body was found in a jungle, which is not the case when the witnesses deposed during trial. All the witnesses stated that the dead body was found near the school and there was no reference to any jungle.
40. It has been also submitted that the injured witnesses had categorically stated that Page No.# 16/43 they were first dragged to the house of Ramesh Kurmi where they were assaulted and thereafter they were taken to Paachnoi village where the deceased ultimately died. According to the evidence of PW2 and PW3, the incident occurred in different phases, first, abduction, second assault in two places. However, this has not been corroborated by the other witness accounts. On the other hand, PW8 and PW9 had categorically stated that the present appellant and the other accused were not seen in the place of occurrence assaulting the deceased.
41. It has been also submitted that Bijoy Pagag, who is one of the accused had remained absconding and the role of the said Bijoy Pagag has not been established. In other words, though the said Bijoy Pagag had remained absconding, the prosecution has not been able to clearly ascertain the specific role played by each of the accused including the present appellant in causing the death of the deceased. Accordingly, it has been submitted that it cannot be said that the prosecution has been able to prove the case against the appellants beyond reasonable doubt.
Crl.A.7/2019
42. Mr. A. Ganguly, learned counsel appearing for the appellant, Punaram Kurmi, in Crl.A. No. 7/2019, has trodden the part traversed by earlier counsel. However, he has added a few submission to bolster the appellant's case.
43. It has been submitted that PW2 and PW3 are interested witnesses and, as such, not much reliance can be placed on their evidence. Apart from these two witnesses, PW2 and PW3, other witnesses have not implicated the appellant in any manner. Hence, the evidence Page No.# 17/43 of PW2 and PW3 has to be strictly construed as evidence of interested witnesses.
44. It has been further submitted that neither the statement recorded of any of the witnesses during the investigation under Section 161 or 164 Cr.P.C. or the statement made by the witnesses discloses any specific role played by the present appellant.
On the contrary, there is evidence to the fact that the violence was perpetrated by the mob and under such circumstances, it cannot be said that motive can be said to be established against the appellant for committing the offence and for conviction under Section 302 IPC.
45. Mr. Ganguly, learned counsel for the appellant has also drawn attention to the evidence of PW2, Musstt. Jaleka Khatun, who during her cross-examination stated that later on she came to know from her daughter-in-law, Joshnara Begum, that her father, Hasen Ali lodged the F.I.R. about the occurrence, but there is no reference to that F.I.R. by any other witness, except by PW2.
If the said statement of PW2 is taken to be as correct, it would indicate that there were two FIRs, first one filed by the aforesaid Hasan Ali and another filed by her son namely, Aizul Ali.
Therefore, a question may arise as to which of the two F.I.Rs. was initially lodged. Only the F.I.R. lodged first will have its significance as an FIR and the subsequent FIR on the same incident, has to be taken as a statement of a witness.
46. Unfortunately, there is nothing on record about the aforesaid second F.I.R. lodged, thus, creating a doubt on the actual initial reporting of the case as to whether the F.I.R. which has been formerly exhibited is the first F.I.R. which portrays the picture but the said Page No.# 18/43 cannot be ascertained for the reason that the second FIR which was mentioned by PW2 has not been at all exhibited.
47. It has been further submitted by Mr. Ganguly, learned counsel for the appellant that the prosecution itself started with a shaky ground and ended with a shaky stand. When the investigation was launched by the I.O., he himself mentioned during cross-examination that he had made an entry in the case diary that during the investigation he came to know that on 14.09.2007 night that theft was committed in the house of Punaram Kurmi and on 15.09.2007 morning finding some of the stolen articles near the house of the deceased, villagers have brought the deceased, his wife and his son for interrogation and thereafter, the villagers confined them and caused assault on them. As a result, the deceased died.
However, no particulars of the villagers are mentioned which would indicate that the I.O. himself did not know the identity of the villagers who had apparently confined and assaulted the deceased, his wife and son. It has been submitted that this particular note was also exhibited as Ext.13. Thus, the very beginning of the prosecution story starts with ambiguity and not with clarity as regards the identity of the assailants.
48. Further, Mr. Ganguly submits that as already submitted by the other learned counsel for the appellants that this is a general, vague allegation against the mob without specifying the role played by each of the accused appellants so as to fasten the guilt on them for committing the offence under Section 302 IPC for which the ingredients of foundation is required to be proved which cannot be said to be proved at all as it was a mob violence and not individual acts of the appellants.
Accordingly, it has been submitted that on over all consideration of the evidences on Page No.# 19/43 record, it cannot be said that the prosecution has been able to prove the charges against the appellant beyond reasonable doubt for conviction under Section 302 IPC. Crl.A.177/2016
49. Heard Mr. U. Dutta, learned counsel appearing for the appellant, Sri Jagadish Deori, in Crl.A.177/2016 who submits that though the names of 3(three) accused, namely, Punararam, Bagai and Boxon were mentioned by the witnesses in their statement recorded under Section 161 and 164 Cr.P.C., the other accused were not named, but somehow in course of trial the names of six accused were mentioned which creates a doubt on the veracity of these witnesses.
50. Referring to the evidence of Md. Tajabur Islam, PW3, made under Section 164 Cr.P.C., which was recorded soon after the incident, he stated that though he knew the accused, he could not name them. However, he mentioned the name of Boxon. However, it is to be noted that none of the accused names were mentioned in the F.I.R.
Further, in the cross-examination of PW3, Tajabur states that he knew the accused persons as co-villagers and they were known to him prior to the occurrence by name. Therefore, it is very clear that while in the statement made soon after the incident, he could not name them, later on in the trial he testified that he knew them prior to the incident by name which casts a doubt on the veracity and credibility of his evidence.
51. Mr. Dutta, learned counsel for the appellant submits that there are some important personal actors involved in this incident, namely, Ramesh Kurmi to whose house the deceased and the injured persons were brought by the villagers, although has been named by several witnesses, was not at all examined and his evidence would have thrown more light on the Page No.# 20/43 actual incident, but, nevertheless he was not examined.
PW2, PW3 and PW4 also mentions one Joshnara Khatun who is the daughter-in-law of the deceased and who also knew about the incident but she also has not been examined.
Thirdly, the I.O. had mentioned in his testimony that he got the information telephonically from one Abdul Matlib on the basis of which he made the GD Entry and started the investigation. However, he was not examined. According to Mr. Dutta, learned counsel for the appellant, examination of the said Abdul Matlib would have been critical as he was the first to inform the police about the incident.
52. Mr. Dutta, accordingly, submits that non-examination of these witnesses who had knowledge of the incident would cast a shadow of doubt on the veracity of the prosecution witnesses. Further, it has been submitted that though some of the witnesses specifically mentioned the name of Bijay Pagag, what role he had played has not been stated by the prosecution though he may have absconded, yet, his role could not have been ascertained from other witnesses but the police did not do the said exercise.
53. Further, it has been submitted that there is some doubt about the place of recovery of the dead body. Though the sketch-map indicates that the dead body was found on the road, it has been mentioned by other witnesses that the dead body was found near the Pachnoi School. There is evidence also that the dead body was recovered from jungle.
54. Therefore, there is inconsistency as to the place from where the dead body was recovered. Accordingly, it has been submitted that the prosecution case is not consistent in that regard also.
55. The learned counsel for the appellant also has submitted that though there is a Page No.# 21/43 reference to the use of dao, khukuri which are sharp weapons, allegedly by the mob, from the record it is clear that these were never used inasmuch as the injury report does not indicate use of any such sharp weapon.
On the other hand, at best, such injury could have been caused by blunt weapon. In fact, in this regard, the learned counsel for the appellant has drawn attention of this Court to the injury reports of the two victim witnesses, PW2 and PW3 where it has been clearly mentioned that injury received by them were simple in nature and also caused by blunt weapon.
56. Learned counsel for the appellant also submits that the injury received by the deceased also does not indicate that any such sharp weapon was used. What is mentioned is the injury which has been indicated on the body of the deceased was haematoma over the left temporoparietal region (subdural)) which only reflects that it could have been caused by a blunt object only and not by any other sharp weapons mentioned. Otherwise, even use of blunt weapon was also doubtful inasmuch as the use of heavy blunt object would have caused some kind of injury either incised or lacerated but no such injury has been found. The prosecution also has not been able to explain the nature of the injuries received by the deceased.
Thus, it can be said that the prosecution has not been able to prove the case beyond reasonable doubt.
57. It has been further submitted that the identity of the accused was not very clearly spelt out inasmuch as the F.I.R. does not mention the name of any of the accused though some of the names are found in the Statement of the witnesses recorded under Sections 161 Page No.# 22/43 and 164 of Cr.P.C. only when the trial was conducted after about 5(five) years of incident, when the witnesses clearly mentioned the names of these six accused. Therefore, it is very doubtful as to the genuineness and credibility of these witnesses.
58. It has been submitted that while the prosecution examined four eye witnesses, out of which two were the injured and related to the deceased, two others were independent i.e. PW7 and PW8. However, the Trial Court did not consider properly the evidence of PW7 and PW8 who stated that they did not see the accused at the place of occurrence but primarily relied on the evidence of PW2 and PW3 who were injured witnesses and also who are interested.
It has been further submitted that the prosecution also has not been able to establish the meeting of mind of the accused for committing the aforesaid alleged offence.
59. It has been submitted that to convict number of persons for murder under Section 302 IPC, it is necessary to prove that they had common intention to cause death and murder prior to the incident but in the present case, no such evidence is forthcoming.
On the other hand, what could be gathered from the evidence is that because of the activities of the deceased who was alleged to have been involved in theft of cattle, the mob, perhaps, wanted to teach him a lesson. However, the action of someone in the mob had exceeded resulting in causing fatal injury on his head. Therefore, it cannot be said that there was a common intention or meeting of minds of the persons involved to cause the death of the deceased.
60. It has also been submitted that no weapon of crime was seized and as such, it cannot be established by the prosecution how the injury was caused. Thus, the prosecution case Page No.# 23/43 lacks clarity as regards the persons who are involved in the alleged commission of offence under Section 302 IPC or about the nature of injuries caused or the weapon used for causing the death.
61. Apart from other discrepancies which have been pointed out by the learned counsel for the appellant, he also has relied on the decision of the Hon'ble Supreme Court in Dr. Sunil Kumar Sambhudayal Gupta and Ors. Vs. State of Maharashtra, (2010) 13 SCC 657 in which it has been held that non-mentioning of names of persons accused in the F.I.R. or in the statement recorded by the witness under Section 161 Cr.P.C. would be fatal in the prosecution case.
62. Mr. Dutta, learned counsel for the petitioner has also relied on the decision of Division Bench of Orissa High Court in Balgopal Panda and Ors. Vs. the State [Criminal Appeal No.77 of 1988, decided on 13.03.1990] (1990) CriL.J. 1848 in which the nature of injuries has been explained and considered which would indicate the nature of weapon used in the crime.
63. Mr. Dutta has also relied on the decision of Hon'ble Supreme Court in Jasdeep Singh @ Jassu Vs. State of Punjab, (2022) 2 SCC 545 with regard to common intention by holding that if there was no prior meeting of mind, common intention cannot be inferred from the subsequent acts.
64. Mr. Dutta has also relied on the decision of Hon'ble Supreme Court in Shishpal @ Shishu Vs. the State (NCT of Delhi), [Criminal Appeal No.1053 of 2015 with Criminal Appeal No.81 of 2018, decided on 11.07.2022] with regard to common intention.
Page No.# 24/43 MOB VIOLENCE
65. The two key witnesses are PW-2 and PW-3. They are also the victims of this case. Bijoy Pagag was acquitted from the charges and the other appellants namely, Jagadish Deori, Babul Bora @ Boxon, Kanu Bora @ Baba Gogoi and Ghuron Garh were all convicted. The appellants were convicted under Sections 302/34 IPC and sentenced to imprisonment for life and a fine of Rs. 5,000/- each with default stipulation. They were convicted and sentenced under Sections 323/34 IPC to a fine of Rs. 1,000/- each and in default to undergo simple imprisonment for 3 months each and under Sections 342/34 IPC to a fine of Rs. 1,000/- each and in default to undergo simple imprisonment for 3 months each. The witnesses gave a clean chit to Bijoy Pagag and he was acquitted from the charges. The accused persons Durga Kurmi and Bogai Gorh were absconding.
66. The evidence of PW-2 depicts that Punaram Kurmi, Babul Bora @ Boxon, Kanu Gogoi and Jagadish Deori along with some other persons entered into her courtyard. They dragged out her husband and took him to Ramesh Kurmi's @ Paharia's house. She and her son Tajabur Islam was also taken along with her husband Abdul Ali. Then the accused persons started assaulting her husband and her son with dao and lathi and also punched them. Thereafter they were taken to Pachnoi village and the absconding accused Durga Kurmi and Bogai Gorh assaulted her husband and her son with lathi and punched them. Her husband immediately died on the spot and her son Tajabur sustained grievous injuries. Her husband's body was guarded by Punaram Kurmi, Ghuron Gorh, Jagadish Deori and the absconding accused Durga Kurmi and Bogai Gorh and her son was also held captive by them. She was standing nearby till next morning.
Page No.# 25/43
67. PW-2's evidence depicts that the incident started on 15.08.2007 at about 1 p.m. PW-2 further testified that on the next morning at about 10 AM her daughter-in-law (Jyotsnara Begum) i.e. wife of her son Aijul arrived and she informed her that her father was informed about the incident and her father informed the police about the incident. It is clear that PW-2 is also a victim and so is her son. Her son, PW-3's evidence clearly depicts that the incident occurred about 5 years back (from 14.03.2012). His evidence also supports the evidence of his mother that the incident occurred in the month of Ramjan at about 2 PM. The evidence of PW-2 and PW-3 clearly depicts that while they were sitting in the courtyard the accused- persons including the absconding accused Durga Kurmi and Bogai Gorh entered into the courtyard and they dragged the deceased (Late Abdul Ali) out of their house. They also dragged PW-3, his mother and his father Abdul Ali out of their house and took them to Ramesh Kurmi's @ Paharia's house and they started assaulting them with khukris and lathis. PW-3 further stated that the appellant Babul Bora @ Bhaksan dealt a blow on his right leg near his knee and thereafter all the appellants took them to the village Panchoi and again assaulted them with dao and lathis which resulted in the death of his father. The appellants Babul Bora, Ghuron Gorh, Punaram Kurmi and some others guarded his father's body and confined them till the next morning. He has categorically stated that all the appellants assaulted them. This includes the appellant Kanu @ Baba Gogoi as well.
68. At this stage it is pertinent to mention that the learned counsel for the appellants laid stress in their argument that this case is of mob violence and no specific overt act could be attributed to a single appellant. It is not clear from the evidence which of the appellants dealt the fatal blow on the deceased. It is also argued that the evidence of the witnesses is replete with contradictions, exaggeration and embellishments. It is argued that the evidence of the Page No.# 26/43 other witnesses clearly depicts that this is a case of mob violence and the deceased was involved in offences of cattle theft which triggered this mob violence.
69. The evidence-in-chief of PW-1, Dulumoni Dutta clearly depicts that when the police came to their fair price shop at about 7 PM asking for a lamp, she went to the police and saw the deadbody of the deceased lying near her shop. Her cross-examination clearly depicts that at the time of the incident people were shouting and many people of different villages came to the place of occurrence and she learnt from the villagers that the deceased committed theft of six buffaloes prior to the incident, and the villagers recovered four stolen cows from the possession of the deceased.
70. The evidence of Dilip Dutta, PW-5, who was a member of the Dizoo Gaon Panchayat in the year 2007, clearly depicts that on the day of the incident, about 10 PM, when he reached home his wife informed him that about 200/250 persons forcefully took away the deceased Abdul Ali, his wife Musstt. Jaleka Khatun (PW-2) and son Tajabur Islam (PW-3) for committing theft of bullocks and cows in his village. On the next date, Abdul Ali passed away near the L.P. School as a result of the injuries sustained by him. This witness was also present at the time of inquest. He has proved his signature on the inquest as Exhibit-1(1). His cross- examination clearly depicts that this incident is the resultant of a mob violence. He has stated that when he asked Jaleka Khatun about the incident, she informed him that about 200/250 persons assaulted them. In his cross-examination he further testified that Tajabur Islam and Aijul were at the place of occurrence before the arrival of police. Then he asked the two sons of the deceased i.e. Tajabur and Aijul to inform the police and accordingly Aijul left the place of occurrence.
Page No.# 27/43
71. The learned counsel for the appellants also laid stress in their argument that the cross- examination of another villager Smt. Dipali Kalita PW-7 clearly depicts that she came to know from the villagers that a thief had been killed. She learnt that the villagers of some villages killed the deceased.
72. A close scrutiny of the evidence of the witnesses clearly depicts that the deceased was killed by a mob on allegation of cow theft. Smt. Arati Gowala testified as PW-8 that about 5 years back, at about 3 PM she saw people including the appellants at the place of occurrence. At that time many people assaulted Abdul Ali, Tajabur Islam and Jaleka Khatun (PW-2) on charges of theft. On the next date she came to know that Abdul Ali died as a result of assault. She has also admitted that she did not witness the appellants assaulting the deceased Abdul Ali at the time of the incident.
73. The evidence of PW-9 Smt. Puja Kurmi also clearly depicts that the incident occurred about 5 years back, at about 3 PM. The villagers apprehended Abdul Ali, Jaleka Khatun, Tajabur Islam and Ajizul in connection with repeated thefts in the village and took them to No. 1 Pachnoi and assaulted them. On the next day she learnt that Abdul Ali passed away. She did not see the appellants amongst the villagers who took away the deceased Abdul Ali, the injured Tazabur and Jaleka to No. 1 Pachnoi village. It is pertinent to mention at this juncture that PW-8 and PW-9 are also eye-witnesses.
74. Thus it is amply clear that the incident is a result of mob violence. The appellants cannot be singled out and held guilty of the offence under Section 302/34 IPC, when the evidence of the witnesses does not attribute any overt act to the appellants and when the evidence of the witnesses does not specifically implicate who dealt the fatal blow to the Page No.# 28/43 deceased. The eye-witness Jaleka Khatun was cross-examined at length. She has vehemently denied that her husband and son were involved in offences of cattle theft and they were habitual offenders. She has denied that four stolen cows were recovered from her house. She has vehemently denied that 250 villagers assaulted her husband and son and the appellants are not responsible for her husband's death. Although the PW-2 has vehemently denied that 200/250 nos. of villagers assaulted her husband and her son yet it is clear that the appellants were accompanied by some other persons when they went to their courtyard. She has categorically stated that at the time of the incident the appellants and some other persons entered into her courtyard. She has not given any number which tantamounts to 200/250 villagers, but it is clear that the seven accused persons were present along with some other villagers who entered into their courtyard. On the other hand, the PW-3 has admitted in his cross-examination that a false theft case was instituted against him and the buffaloes recovered in connection with the case belongs to the village. It is clear that PW-3 is indeed booked in a theft case relating to theft of buffaloes. PW-3 has however denied knowledge of any incident of theft in the house of Ghuron Garh and Punaram Kurmi on the night of the instant case.
75. The I/O, PW-13 has testified that VDP Secretary Md. Abdul Matleb informed him over phone that a thief was severely assaulted by a mob causing his death in the field No. 1 Pachnoi L.P. School. He has admitted in his cross-examination that he laid chargesheet against the appellants in a case of mob violence.
76. In view of our foregoing discussions it is hereby held that the deceased was bludgeoned to death by a mob and his body was found at Pachnoi village.
Page No.# 29/43 CONTRADICTIONS AND MEETING OF MIND
77. The council of Lawyers for the appellants kept harping on the point that this case is replete with contradictions. It is also argued that the witnesses have not named all the appellants. The appellants were also not named in the FIR. The statements of the witnesses, PW-2 and PW-3 under Section 164 Cr.P.C. have not been ascertained to have been made by the witnesses PW-2 and PW-3. The learned counsel for all the appellants have laid stress in their arguments that the injuries caused on the deceased as well as the injured persons were not caused by any sharp weapon. The injury reports marked as Exhibit-2 and Exhbit-3 clearly depicts that PW-2 and PW-3 sustained simple injuries caused by blunt objects. The post- mortem report marked as Exhibit-8 depicts that the deceased sustained -
(i) Lacerated wound over right lower leg anterior aspect (1 x 3 c.m.
longitudinal);
(ii) Haematoma (blood clot) over the left temporoparietal region (subdural) and
(iii) Right Lobe ruptured (Linear).
78. I have carefully scrutinised the evidence. It is true that the injuries detected on the deceased were not caused by any sharp object. PW-3 has stated that Bhaksan struck a dao blow on his right leg near his knee but no sharp injury was detected on his right leg near the knee on his examination by the Medical officer. However, this does not render his evidence suspect. It is true that doubt creeps into one's mind when the injuries described by the Medical Officer who had examined the injured persons does not tally with the injuries described by the witnesses. Both the witnesses have testified that the appellants were armed with daos and lathis.
Page No.# 30/43
79. Mr. T.H. Hazarika, learned counsel for the appellant Babul Bora laid stress in his argument that since the statements of the witnesses PW-2 and PW-3 recorded under Section 164 Cr.P.C. were not exhibited, the appellant had no obligation to refer to the said statements recorded under Section 164 Cr.P.C., for the purpose of contradictions under Section 145 of the Indian Evidence Act, 1872 (the Evidence Act for short). It was submitted that the Magistrate simply recorded the statements, but such statements cannot be used for the purpose of cross-examination to discredit the evidence of PW-2 and PW-3 because the statements were not made by the Magistrate but the Magistrate merely recorded the said statements.
80. Mr. N. Dutta, learned Amicus Curiae for the appellant in Criminal Appeal No. 90/2019 while endorsing the submission advanced by Mr. Hazarika also added that the statements of PW-2 and PW-3 recorded under Section 164 Cr.P.C. is contradictory to their testimonies in the Court, because they stated under Section 164 Cr.P.C. that the body of the deceased was found in the jungle whereas in their depositions they have stated that the deceased was killed at Pachnoi village.
81. It is also added by learned counsel Mr. A. Ganguly on behalf of the appellant Punaram Kurmi that PW-2 and PW-3 are interested witnesses. They have however not implicated the appellant in any manner. It is also submitted that neither their statements recorded under Section 161 nor 164 Cr.P.C. discloses any specific role played by the appellant Punaram Kurmi. It is also submitted on behalf of the other appellants that the evidence shows that it was a mob violence without any specific role assigned to the appellants Babul Bora, Ghuron Garh, Punaram Kurmi or any other appellants to be specific.
82. The learned counsel Mr. U. Dutta while arguing for the appellant Jagadish Deori Page No.# 31/43 submitted that the witnesses PW-2 and PW-3 did not mention the name of Jagadish Deori in their statements under Section 161 and 164 Cr.P.C. but they have mentioned his name for the first time when they have given their statements in the Court. PW-3's statement under Section 164 Cr.P.C. was recorded immediately after the incident and he stated that though he knew the appellants he could not name them. He named only one appellant Bhaksan. It is also submitted that the appellants were not named in the FIR. Mr. U. Dutta laid stress in his argument that PW-3 has mentioned in his cross-examination that all the appellants are his co- villagers and they are known to him, but on the other hand their names were not mentioned in the FIR which casts a shadow of doubt over the veracity and credibility of the evidence of PW-3. Moreover the evidence clearly depicts that the incident occurred in two phases. According to the evidence of PW-2 and PW-3, initially they were dragged to Ramesh Kurmi's house. Ramesh Kurmi was neither made an accused nor examined as a witness. His evidence would have thrown some light on the incident, but nevertheless he was not examined. PW-2, PW-3 and PW-4's evidence also clearly depicts that Joshnara Begum, the daughter-in-law of the deceased had knowledge about the incident but she was not examined as a witness. Non- examination of these witnesses casts a shadow of doubt over the veracity of the prosecution case. The sketch map, Ext.-11, indicates that the body of the deceased was found on the road whilst the witnesses have testified that the body was found near the Pachnoi school. The other contradictory evidence is that the body of the deceased was recovered from the jungle. The appellants ought to be given the benefit of doubt due to the inconsistency as to the place from where the body was recovered. It is also submitted by Mr. U. Dutta that no sharp weapons like dao, khukri were recovered. He has also taken us through the injury reports which were already referred to, in the foregoing discussions.
Page No.# 32/43
83. It is also submitted on behalf of the appellant Jagadish Deori that earlier his identity was not clearly spelt out but when the witnesses came to the Court after 5 years of the incident they clearly mentioned his name as well as the names of six others.
84. It has also been argued on behalf of the appellants that while the prosecution examined four eye-witnesses, two eye-witnesses were related and the other eye-witnesses PW-8 and PW-9 were independent witnesses. However, the Trial Court did not properly consider the evidence of PW-8 and PW-9 who testified that they did not see the appellants at the place of occurrence. It is argued that the Trial Court has erred in relying heavily on the evidence of PW-2 and PW-3 who were injured witnesses as well as interested witnesses.
85. It has also been submitted that the prosecution failed to establish the meeting of mind of all the appellants for committing the alleged offence. To rope in and convict as many as 5 appellants for the offence under Section 302 IPC, it is necessary to prove that they all had a common intention to cause the death and commit murder prior to the incident, but in the present case no such evidence is forthcoming.
86. We have given our anxious consideration to the submissions at the Bar. It is true that the appellants have not been named in the FIR but they have been identified by all the witnesses while they were appearing in connection with this case. It has to be borne in mind that the FIR was lodged by a person who heard about the incident. He was not present in the place of occurrence to ask the injured persons about the persons who were present at the place of occurrence so that their names could be mentioned specifically in the FIR. It is no more res integra that more serious the offence, stricter the proof has to be. In an offence as serious as culpable homicide, punitive punishment by curtailing liberty for several years has to Page No.# 33/43 be dealt with introspection. The evidence clearly depicts that no sharp weapons or any blunt weapons were seized from the place of occurrence. The injured persons sustained simple injuries but unfortunately the deceased passed away. Meeting of mind to assault the deceased cannot be ruled out, but meeting of mind to do away with the deceased has to be scrutinised meticulously. The aggressive behaviour of the appellants is evident. They stormed into the courtyard and pulled out both the injured persons along with the deceased. Although the learned counsel for the appellants repeatedly reiterated that the evidence is replete with contradictions, yet the Investigating Officer, PW-13, as well as PW-2 and PW-3 were not cross-examined regarding the earlier statements of PW-2 and PW-3 under Section 161 Cr.P.C., as per Section 162 of the Cr.P.C. qua Section 145 of the Evidence Act. It is true that the earlier statements of the witnesses under Section 164 Cr.P.C. was also not controverted by the learned counsel for the appellants, by stating that the statements of the witnesses PW-2 and PW-3 under Section 164 Cr.P.C. marked as Exhibits- 6 and 7 were not affirmed by the witnesses themselves. So the appellants refrained from controverting the statements of the witnesses recorded earlier as per Section 164 Cr.P.C.
87. The witnesses PWs 1, 5, 7, 8 and 9 are all independent witnesses and their evidence clearly depict that the deceased was killed by a mob. It is clear from the evidence of the independent witnesses that the deceased was killed by a mob. The injured victims have identified eight persons from the mob. Two of them are still absconding and five out of them have been convicted in connection with this case, while one was acquitted. The independent eye-witnesses are Arati Gowala (PW-8) and Puja Kurmi (PW-9).
88. PW-8 has clearly stated that she saw many people including the accused-persons at the place of occurrence. At that time many people assaulted Abdul Ali on the charge of theft.
Page No.# 34/43 Injured, Tajabur Islam (PW-3) and Mustt. Jaleka Khatun (PW-2) were also present at the place of occurrence. She, PW-8, did not see the people assaulting Tajabur and Jaleka. Her evidence however depicts that she did not see the accused persons physically assaulting the deceased Abdul Ali at the time of the incident.
89. The other independent witness PW-9 testified that about 5 years back, at about 3 PM, the villagers apprehended the deceased along with Aijul Ali, Tajabur Islam and Jaleka Khatun in connection with repeated cattle thefts in the village and took them to No. 1 Pachnoi village and assaulted them. However, she stated that she did not see the appellants amongst the villagers. Although PW-8 stated that she did not see the appellants in action, yet her evidence depicts the presence of the appellants amongst the crowd. PW-9 however did not mention about the presence of the appellants in the mob.
90. As per Section 134 of the Indian Evidence Act a great many number of witnesses are not required to prove a case. The evidence of one witness if reliable, will suffice. PW-8 is not an interested witness. Her evidence clearly depicts that five appellants were present with the group and PW-2 and PW-3 have clearly described the conduct of the appellants at the time of the incident.
91. The evidence of the injured witnesses as well as the evidence of PW-8, who is an independent witness clearly depicts that the appellants were present with the mob. PW-8 has admitted that she did not see the appellants assaulting the injured persons and the deceased. The evidence of the injured persons can be relied upon. Their evidence is bolstered by the evidence of PW-8, despite the fact that PW-8 stated that she did not see the appellants assaulting them. The injured persons are the best witnesses who can describe how they Page No.# 35/43 sustained the injuries. No contradictions as per Section 162 Cr.P.C. vis-à-vis Section 145 of the Evidence Act have been illustrated to controvert the fact that the appellants assaulted the injured persons as well as the deceased. It has been held by the Hon'ble Supreme Court in the State of Rajasthan v. Gurbachan Singh and Others in Criminal Appeal No. 2201 of 2011 decided on 07.12.2022 that - " common intention can be formed at the spur of the moment and during the occurrence itself. Common intention is necessarily psychological fact and as such, direct evidence normally will not be available. Therefore, in most cases, whether or not there exists a common intention, has to be determined by drawing inference from the facts proved. Constructive intention, can be arrived at only when the Court can hold that the accused must have pre-conceived the result that ensued in furtherance of the common intention."
92. Reverting back to this case it is held that common intention to assault could be inferred from the conduct of the mob. The mob stormed into the courtyard of the deceased and pulled him out along with his wife and sons. It could be deciphered that the appellants who were also members of the mob, atleast, had the common intention to assault the injured persons and the deceased. It is worth reiterating that no contradictions could be elicited through the cross-examination of PW-2 and PW-3 to rebut their evidence that they were assaulted by the appellants. It has already been held in the foregoing discussions that the FIR was lodged by a family member who was not present in the place of occurrence and so the names of the appellants were not mentioned in the FIR. The facts and circumstances of this case is not similar to the facts and circumstances of the case referred to by the appellant in Dr. Sunil Kumar Sambhudayal Gupta and Others v. State of Maharashtra, reported in (2010) 13 SCC 657. It was a case of abetment to commit suicide.
Page No.# 36/43
93. In the instant case PWs-2, 3, 7 and 9 have clearly identified the appellants who were present in the dock while they were facing trial. The other witnesses have also identified the appellants who were present in the dock. PW- 2, PW-3 and the deceased were relentlessly attacked by a large mob. They could very well identify the appellants who were co-villagers, but it is next to impossible for them to specifically describe each and every blow and the weapon used at the time of the incident. It is not humanly possible that the witnesses could remember vividly which appellant assaulted on what part of the body. Evidence of an injured witness must ordinarily be ranked high. It has been held in State of Uttar Pradesh v. Naresh and Others in Criminal Appeal No. 674/2006, decided on 8 th March, 2011 that -
"The evidence of an injured witness must be given due weightage being a stamped witness, thus, his presence cannot be doubted. His statement is generally considered to be very reliable and it is unlikely that he has spared the actual assailant in order to falsely implicate someone else. The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was present during the occurrence. Thus, the testimony of an injured witness is accorded a special status in law. The witness would not like or want to let his actual assailant go unpunished merely to implicate a third person falsely for the commission of the offence.
94. Thus, the evidence of the injured witness should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein. Jarnail Singh v. State of Punjab, (2009) 9 SCC 719; Balraje @ Trimbak v. State of Maharashtra, (2010) 6 SCC 673; and Abdul Sayed v. State of Madhya Pradesh, (2010) 10 SCC 259]."
Page No.# 37/43
95. There is not even an iota of doubt that the appellants were present and they dragged out the deceased along with his family members from his courtyard and initially took him to Ramesh Kurmi's house and thereafter to the Pachnoi village. The appellants assaulted the deceased as well as his son and wife and voluntarily caused hurt upon the deceased, his son, and his wife. The decision of the learned Trail Court holding the appellants guilty of offence under Section 323/34 was in order. The appellants acted in concert. They voluntarily caused hurt upon the injured persons, in furtherance of their common intention. Commission of offence under Sections 323/34 IPC was conclusively established.
96. However, the evidence of the witnesses does not specifically describe which appellant dealt the fatal blow or caused the fatal injury on the deceased. The deceased and the injured persons were assaulted in two places. Initially they were assaulted in Ramesh Kurmi's house and thereafter they were taken to the Pachnoi village. Non-examination of Ramesh Kurmi causes a dent in the evidence. In an offence as grave as culpable homicide amounting to murder, the evidence has to be strong and conclusive. The autopsy report depicts that two major injuries caused the death of the deceased. His liver was ruptured and haematoma was detected over the left temporoparietal region. According to the opinion of the Medical Officer, PW-12 on the post-mortem report Exhibit-8, the cause of death was the head injury. Not a single witness testified as to who was responsible for the injuries sustained by the deceased on his head or on his liver. The inquest report marked as Exhibit-1 clearly depicts that the deceased was relentlessly assaulted. Several marks of injuries were visible on the back of the body and above the waist and on both his legs. It was submitted by Ms. B. Bhuyan learned Addl. P.P. that the statements of the PW-3 under Section 164 Cr.P.C. clearly depicts that the rupture of the right lobe of liver was caused by the appellant named Bhaksan @ Babul Bora Page No.# 38/43 who kicked Abdul Ali (deceased) on his chest.
97. It is held that this statement however cannot be used to rope in the appellant Babul Bora @ Bhaksan, because the PW-3 failed to depose in the Court that Babul Bora kicked on his father's chest, more so when the MO, PW-12, opined that head injury was the cause of death. Although the evidence reveals that the mob violence was triggered by incidents of cattle theft yet, it is not discernable that the entire mob had an intention to do away with the deceased. The intention of roughing up the deceased and the injured persons cannot be ruled out, but the intention of eliminating the deceased cannot be conjectured. FIRST INFORMATION REPORT (FIR)
98. Mr. A. Ganguly, learned counsel for the appellant Punaram Kurmi laid stress in his argument that if the statement of PW-2 is taken to be correct, then it indicates that there are two FIR's, first one by Hasen Ali and another lodged by her son Aijul Ali. Therefore question arises as to which of the two FIRs was the first FIR, and the first FIR will have its significance as an FIR and a subsequent FIR on the same date has to be taken as a statement of the witness. The I/O's (PW-13's) evidence clearly depicts that on 16.09.2007, one VDP Secretary, Md. Abdul Matleb informed him over phone that a thief was severely assaulted by a mob causing his death in the field of No. 1 Panchoi L.P. School and later on, one Aijul Ali lodged an ejahar with the police at North Lakhimpur P.S. There is no instance of any FIR being lodged by Hasen Ali. There is no confusion of any two FIRs being lodged by different persons. Aijul Ali has also testified as PW-4 that on the day of the incident he was at Zero in Arunachal Pradesh when he received information from his wife (Joshnara Begum) about the incident. On the next day he went to the house of his father-in-law Hasen Ali and thereafter he came to Page No.# 39/43 N.L.P.S. alongwith his father-in-law and then he lodged the FIR. This has been substantiated by Hasen Ali as PW-6. Being a layman and an uneducated woman, PW-2 has testified that at about 10 AM her daughter-in-law (Joshnara Begum) informed her father (Hasen Ali) about the incident, who informed the police about the occurrence. This does indicates that the FIR was lodged by none other than PW-4.
99. Recapitulating the entire evidence it is held that although there is uncontroverted evidence that the mob consisting of the appellants assaulted the injured persons as well as the deceased, yet evidence is lacking to hold the appellants guilty of offence under Section 302 IPC. The appellants acted in a brutal and aggressive manner, but there is no evidence that the appellants had the intention or even knowledge to cause the death of the deceased. The weapons alleged to have been carried by the appellants at the time of the incident were not even seized by the police from the place of occurrence or from the possession of the appellants. The injured witnesses have stated in a vague manner that the appellants were armed with dao, khukri, lathi etc. but no such object was seized from the place of occurrence. This also causes a dent in the evidence. Moreover, not a single sharp injury was detected when the autopsy was performed and when the injured persons were examined by the Medical Officer. It would be worthwhile to reiterate that both the injured persons, PW-2 and PW-3 sustained simple injuries caused by blunt weapons and the deceased sustained injuries which were also caused by blunt weapon or by blunt object. This also implies that the mob did not have any intention or knowledge to kill the deceased. It would also be worthwhile to reiterate that no specific role was assigned to any of the appellants who were a part of the mob. The evidence of PW-2 and PW-3 that the incident occurred in different phases, i.e., abduction and assault in two different places has not been substantiated by the evidence of Page No.# 40/43 other witnesses. The other witnesses have stated that the incident of assault occurred at Pachnoi village. No common intention or meeting of mind even at the spur of the moment to cause the death of the deceased could be deciphered from the evidence of all the witnesses. Even the evidence of PW-3 depicts that Bhaksan @ Babul Bora hit him on his leg, insinuates that the appellant had no intention to eliminate him. Leg is not even a vital part of human body. Non-examination of Ramesh Kurmi also thwarts the evidence. In view of the foregoing discussions, it is hereby held that no common intention to cause the death of the deceased could be inferred from the testimony of the witnesses. The evidence is opaque regarding the meeting of minds of the appellants to cause the death of the deceased. The evidence is also opaque regarding the role of the author of the crime who is responsible for dealing the fatal blows on the deceased. Without clarity in the evidence, it would be perilous to hold the appellants guilty of offence under Section 302 IPC. Thereby, all the appellants are acquitted from the charges under Section 302/34 IPC. It is held that the prosecution has failed to prove beyond a reasonable doubt that the appellants acted in concert, and in furtherance of their common intention or knowledge, committed the murder of the deceased Abdul Ali. It is held that the prosecution failed to prove beyond reasonable doubt that the appellants as a member of a mob caused such bodily injury to the person with the knowledge that their act was so imminently dangerous, that it would result in the death of the deceased.
100. The evidence of PW-2 and PW-3 reflects, that after the death of Abdul Ali (deceased), Punaram Kurmi, Ghuron Garh, Jagadish Deori, Babul Bora and few others confined PW-3 and guarded the body of the deceased. It has already been held that the appellants are guilty of offence under Section 323/34 IPC. The evidence of PW-2 and PW-3 also reveals that the afore-mentioned appellants except Kanu Bora, have confined PW-3 at the place of occurrence Page No.# 41/43 till the following morning and PW-2 was standing nearby. Thus the decision of the Trial Court that the appellants Babul Bora, Ghuron Garh, Punaram Kurmi and Jagadish Deori are guilty of offence under Section 342/34 IPC is in order, but as PW-2 and PW-3 did not implicate that the appellant Kanu Bora @ Baba Gogoi kept guard over the body of the deceased and wrongfully confined PW-3 at Pachnoi till the following morning, he is not held guilty of offence under Section 342/34 IPC. It could be culled out from the evidence that the incident occurred in the month of "Ramjan" in the year 2007.
101. Before parting with the record, it would be apt to mention that although the learned counsel for the appellants emphasised through their arguments that the evidence of the eye- witnesses who are injured witnesses are improvements of their earlier statements under Section 161 and 164 Cr.P.C., yet no contradictions could be elicited through their cross- examination. It is true that the appellants are not held guilty of offence under Section 302 IPC on the basis of the evidence of the injured witnesses as well as the evidence of the other eye-witnesses and witnesses, who are not eye-witnesses, yet with the same set of evidence the appellants are held guilty of offence under Sections 323, 342 and 34 IPC. The contradictions which has been discussed in the foregoing discussions and the fact that no specific role could be attributed to the appellant Jagadish Deori, Babul Bora @ Bhaksan or the appellant Punaram Kurmi or Kanu Bora @ Baba Gogoi or even Ghuron Garh, they get the benefit of doubt. Through the same set of evidence the appellants are held guilty of offence under Section 323/34 IPC. The deceased sustained fatal injuries on his head. There is not a scintilla of evidence to pinpoint who dealt the fatal blow over the head of the deceased. A close scrutiny of the evidence of PW-2 and PW-3 depicts that all the appellants were present at the time of the incident. They acted in concert and caused the injuries sustained by the Page No.# 42/43 injured persons as well as the deceased but evidence is lacking that they had the knowledge or even the intention to do away with the deceased. The benefit of doubt goes to the appellants. It is held that the evidence of the injured persons as well as the facts and circumstances of this case and the injury sustained by the deceased is not sufficient to draw an inference that the appellants had a common intention to commit the murder of the deceased by intentionally causing his death. The appellants were members of the mob and one of them may have dealt the fatal blow resulting in the death of the deceased and resulting in simple injuries sustained by the PW-2 and PW-3. It cannot be conjectured that all the appellants together had the intention to cause the death of the deceased. The appellants are thereby not held guilty of offence under Sections 302/34 IPC. They were behind bars since the date of conviction. The sentence of fine under Sections 323/34 and 342/34 IPC is modified to the period already undergone by the appellants in custody. Appeals are partly allowed. Accordingly, the appellants are set at liberty. Sureties also stand discharged.
102. We have noted that while convicting the appellants, the learned trail Court did not pass any order for payment of compensation to the victim or his dependents as contemplated under Section 357A of the Cr.P.C. We have been also informed that there is a scheme prepared by the State of Assam under sub-section 9 of Clause 5 of the Assam Victim Compensation Scheme, 2012 as notified on 05.03.2016, which has also been revised on 01.02.2019 and if that is so, let the State verify if the deceased had left any dependent or legal heir and if so, let the compensation fixed by the State in terms of the aforesaid notification dated 01.02.2019 be paid to the dependent(s) or legal heirs of the victim after making necessary verification. The aforesaid exercise will be carried out in association with the North Lakhimpur District Legal Services Authority at the earliest and preferably within a Page No.# 43/43 period of 3 (three) months from the date of receipt of a copy of this order. A copy of this order be furnished to the Member Secretary, Assam State Legal Services Authority as well as the Secretary, North Lakhimpur District Legal Services Authority to assist the State authorities in this regard.
JUDGE JUDGE Comparing Assistant