Tripura High Court
Shri Promode Sarkar vs The State Of Tripura on 7 July, 2020
Author: S. Talapatra
Bench: S. Talapatra
HIGH COURT OF TRIPURA
AGARTALA
CRL.APP 02 of 2016
1. Shri Promode Sarkar,
son of late Churamoni Sarkar
2. Smt. Usha Rani Sarkar,
wife of Shri Promde Sarkar
3. Shri Madan Biswas,
son of Shri Radha Raman Biswas
4. Smt. Manju Sarkar,
wife of Shri Indrajit Sarkar
5. Shri Radha Raman Biswas
son of late Upendra Biswas
All are residents of Dighalia Colony
PS: Lefunga, District: West Tripura
---- Appellant(s)
Versus
The State of Tripura
---- Respondent(s)
For Appellant (s) : Mr. A. Bhattacharjee, Adv.
For Respondent(s) : Mr. S. Debnath, Addl. PP
Date of hearing : 04.01.2020 & 25.02.2020 *
Date of pronouncement : 07.07.2020
Whether fit for reporting : YES
HON'BLE MR. JUSTICE S. TALAPATRA
Judgment & Order
The appellants were charged separately under Section 323 read with Section 149 of the IPC and under Section 302 read with Section 149 of the IPC, under *Spoken to minutes relating to CRL.A.(J) 08 of 2016 and CRL.REV.P 77 of 2017 Page 2 of 49 Section 148, 447 read with Section 149 of the IPC, under Section 506 read with Section 149 of the IPC for causing hurt to Narendra Biswas (PW-1) and death of Litan Biswas on 28.02.2013 at about 1500 hours at a place called Dighalia under Lefunga Police Station being members of unlawful assembly in prosecution of common object. [2] After the regular trial, by the judgment dated 05.01.2016 delivered in case No ST (Type-1) 17 of 2014, the appellants have been convicted under Sections 148/447/304 (part-II) read with section 149 of the IPC by the Addl. Sessions Judge, West Tripura, Agartala, Court No.2. But the appellants were discharged from the charge framed under Section 506 and 323 of the IPC. While returning the said finding of conviction, the trial judge has observed as follows:
"15. Now in the totality of the prosecution evidence, prosecution in this case has failed to prove exhibit-MO2 as weapon of offence as no blood stain could be detected on it and the other witnesses of this case also did not identify the exhibit-MO2 as weapon of offence. It is clear from the evidence of PW 3 Dr Juthika Debbarma that there is only one injury found in the head of the deceased and the body of the deceased did not show any mark of injury. That fact is duly corroborated by the evidence of PW 4 and the inquest report of deceased marked as exhibit-2. So the prosecution evidence that after Litan fell down being struck by Subodh Sarkar the other accused persons also assaulted Litan by means of Page 3 of 49 fire wood on the other parts of his body do not get corroboration by the medical evidence i.e. the evidence of PW 3 and her report as proved as exhibit - 1 and also by the inquest report proved as exhibit-2. So in that regard, prosecution evidence remains cloudy. From the evidence of OPW 1 it is clear that the OP W 1 also admitted that she, her son and other on the relevant date and time went to the house of the informant. PW 1 , PW 2 , PW 7, PW 8 all in to-to supported that all the accused persons have trespassed into the homestead of informant being armed with wooden pile etc. starting from road abusing the informant who was on road in front of his house. Inmates of a house is the most important witnesses in respect incident inside the house premises. The circumstances show that on the day of counting of last Assembly, out of political enmity the accused persons being armed with wooden piled, fire wood etc trespassed into the house premises of the informant and abused the informant in filthy language and during that time the wife of the informant i.e. PW 2 took the informant inside the door and closed the door and when Litan, a son of the informant objected, then Subodh Sarkar who was armed with wooden pile gave a blow on the head of Litan. All the accused persons trespassed into the homestead of the informant being armed with wooden pile, firewood etc. Definitely they did not go there with peaceful purposes when they were armed with wooden pile etc. and number of the accused persons were more than five. So it is proved that the accused persons formed an unlawful assembly for the purpose of committing an offence in the house of the Informant. So the offence under section 148 IPC as against all the six accused persons namely Sri Pramode Sarkar, Madan Biswash, Sri Subodh Sarkar, Smti Usha Rani Sarkar, Smti. Manju Rani Sarkar, and Sri Radha Raman Biswash is proved as they were rioting with wooden pile, fire woods as weapon as is like to cause death. So, I find that the offence under section 148 IPC is proved against all the accused persons.
15. Since all the accused persons trespassed into the home stead of the informant on the date and time of incident, the offence under section 447 I.P.C. is also proved against all the aforesaid accused persons.
16. It is clearly established that there was only one injury on the head of the victim Litan and he died due to the said injury as established Page 4 of 49 from the medical evidence of P.W3 and the P.M report (Ext.1) as proved. The evidence of the P.W1, P.W 2, P.W 7, and P.W 8 that after Litan fell on the ground receiving a blow of a wooden pile by Subodh Sarkar other accused also caused hurt to Litan by firewood, kick etc. do not get corroboration from medical evidence and that fact is not proved beyond all shadow of doubt. So participation of the other accused in causing hurt to Litan is not proved beyond all shadow of doubt. But it is proved that all the accused persons were a member of an unlawful assembly and they entered in the house of the informant armed with wooden pile, firewoods etc, the action of any of member of the unlawful assembly will bind every member of that assembly. On careful appreciation of the prosecution evidence particularly evidence of P.W1, P.W 2, P.W 7 and P.W 8 it is established that the accused Subodh caused a blow of wooden pile on the head of the victim Litan and receiving that blow Litan fell down on the ground receiving bleeding injury and became senseless and ultimately died at G. B Hospital on the following day. The evidence of the P.W 3, medical officer Smti. Juthika Debbarma, her P.M report marked Exhibit 1 and evidence of P.W 4 the ASI of police who conducted inquest over the body of the victim also show that there was only one injury on the head of the victim and he died due to said injury. It is clear that the accused Subodh did not cause any further injury of the body of the victim. So his intention behind the blow was to cause the death of the victim is not proved. But fact is that Litan died due to the said blow given by accused Subodh Sarkar.
17. It is true that the evidence of the prosecution does not show that either by conduct or by other means the accused persons showed their intention/preconceived mind to cause the death of Litan. But ,since due to the fatal blow of wooden object on the head of victim made by Subodh the victim succumbed, the circumstances attract part -II of section 304 IPC as against Subodh Sarkar directly and against other accused persons as they were the members of such unlawful assembly under section 149 of IPC. In my considered view this is a case of culpable homicide not amounting to murder within the ambit of section 304 Part II IPC."
[3] Pursuant to the said conviction, the appellants were sentenced to suffer rigorous imprisonment for period Page 5 of 49 of two years for committing offence punishable under Section 148 of the IPC and also to suffer rigorous imprisonment for three months for committing offence punishable under Section 447 of the IPC. That apart, one of the convicts namely, Subodh Sarkar is not appellant in the present appeal but he had filed a separate appeal being CRL.A.(J) No.08 of 2016 which was not pressed on 03.01.2020 as he was released from the jail on having special remission. For record, he had been sentenced to suffer rigorous imprisonment for 5 years and to pay fine of Rs.10,000 with default stipulation. The appellants have been sentenced to suffer rigorous imprisonment for 3 years and to pay fine of Rs.5000/- with default stipulation for committing offence punishable under Section 304 Part II read with Section 149 of the IPC. It has been directed that the sentences shall run concurrently and the period of detention as undergone during the period of investigation and trial shall be set off from the substantive imprisonment. The said judgment of conviction and order of sentence have been challenged by the appellants namely Promode Sarkar (the appellant No.1), Usha Rani Page 6 of 49 Sarkar (the appellant No.2), Madan Biswas (the appellant No.3), Manju Sarkar (the appellant No.4) and Radha Raman Biswas (the appellant No.5).
[4] The genesis of the prosecution case is rooted in the complaint filed by one Narendra Biswas being the injured witness (PW-1) on 01.03.2013 to the Officer-in- Charge of Lefunga PS by revealing that on 28.02.2013, the day before the filing of the complaint (Exbt-7) at about 3 pm in the afternoon his son, Litan Biswas (the deceased) was at home. At that point of time, he had registered the hue and cry at his home and he had rushed to that direction. He saw Promode Sarkar and his son Subhodh Sarkar, Madan Biswas and Radha Ramnan Biswas Ushar Rani Sarkar, Manju Sarkar gathered in his courtyard with wooden file and fire wood pieces. Subodh Sarkar, Madan Biswas and Usha Rani Sarkar pelted brick-bat at him. He was hit and had suffered injury. His wife pushed him inside a room. His wife Dipali Biswas was saying aloud that Madan Biswas, Subodh Sarkar and Usha Rani Sarkar struck blow on the head of their son, Litan Biswas with a piece of wood and as a result their son was hurt and collapsed on Page 7 of 49 the ground. Then he saw his wife had been going to Mohanpur Hospital for treatment of his son. On the day of filing the complaint (Exbt-7) i.e. 01.03.2013, he saw the dead body of his son in the GBP Hospital. Then, he filed the complaint on subscribing left thumb impression on it. On the basis of the said complaint dated 01.30.2013, the Lefunga PS Case No.01/13 under Section 148/149/335/302 of the IPC was registered and taken up for investigation.
[5] On completion of the investigation, the final police report was filed sending up the appellants and Subodbh Sarkar for facing the trial. Having the police papers been committed to the court of Sessions Judge, and later on, transferred to the Court of Addl. Sessions Judge, Court No.2 West Tripura, Agartala hereinafter the trial judge, the charges against the appellants were framed under Section 323 read with Section 149, Section 302 read with Section 149 of the IPC. The additional charges under Section 148 of the IPC, under Section 447 read with section 149 of the IPC and under section 506 read with section 149 of the IPC were framed as noted before and all Page 8 of 49 the appellants including Subodh Sarkar pleaded innocence and claimed to be tried in accordance with law. [6] In order to substantiate the charge, the prosecution has adduced 12 (twelve) witnesses with 14 (fourteen) documentary evidence including the post mortem examination report of the deceased (Exbt-1). In order to rebut the prosecution case, 3 (three) witnesses were examined by the appellants and Subodh Sarkar. After recording the prosecution case, all the appellants including the other accused Subodh Sarkar were examined under Section 313 of the CrPC separately for having their response towards the incriminating materials as surfaced in the evidence. All the accused persons reiterated their innocence and denied the incriminating materials to be truthful.
[7] During the examination under Section 313 of the IPC, all the appellants took a plea that in a state of intoxication, Narendar Biswas (PW-1) caused hurt to the deceased. One of the appellants namely Promode Sarkar has stated during such examination that Subodh Sarkar informed him that Narendra Biswas in state of intoxication Page 9 of 49 caused hurt to Litan. To save him, when Subodh went there, Narendra caused hurt to him also. The same plea has been raised by Madan Biswas, Usha Rani Sarkar and Manju Sarkar. To prove that far and non-involvement of the appellants in commission of the offence, as reflected in the charge, three witnesses were examined by the defence, but no documentary evidence has been adduced by them.
[8] Mr. A. Bhattacharjee, learned counsel appearing for the appellants has quite emphatically submitted that PW-1 (Narendra Biswas) has admitted that the day was slated for counting of vote when the occurrence broke out. He was a supporter of the Congress (INC). According to his deposition, suddenly the appellants and the accused attacked him on the road and when he entered inside his house, his son Litan Biswas was present on the courtyard. Subodh Sarkar struck on his person with a wooden file and other persons present on the courtyard also attacked his son. When he had appeared in front of the door of his house, he noticed that "the accused person are leaving the lawn" and later on, he had stated that Subodh was found Page 10 of 49 leaving while the other accused persons were assaulting his son. At the time of occurrence, his wife and his other son, Jhutan Biswas were present at the house. According to Mr. Bhattacharjee, learned counsel, PW-1 did not see the occurrence at all and that is the reason that on the day of occurrence no complaint was filed and later on, by filing the complaint, the appellants have been included as the assailant, out of political animosity.
In the cross-examination, he has admitted that on the day of occurrence, his daughter-in-law, Soma Biswas was present at the house but the other daughter- in-law Shampa was away from home as she left the house one year back. But he has denied that he caused any hurt to his son, Litan Biwas. He has, however, admitted that both his daughters-in-law filed complaint against him for assaulting them. He has denied that he was intoxicated on the day at the time of occurrence. On seeing him in that fit, Litan raised objection. When he pushed Litan with sufficient force Litan was struck on bowl and got forehead injury. Litan became senseless and was shifted to the hospital without delay. He has denied the suggestion that Page 11 of 49 in order to escape from the liabilities of hurting his son badly, he had framed the appellants and the other accused persons falsely.
[9] Mr. Bhattacharjee, learned counsel has submitted that the story that has been narrated by the wife of PW-1 (PW-2) namely, Dipali Biswas is in contrast to what PW-1 has stated in the trial. According to her, the appellants and the accused person came inside the premises. Before that they started abusing her husband when he was on the road. They chased him inside. On seeing their movement, her husband had entered in the house then she locked the door of hut keeping her husband inside the room. She was standing outside the door. In the meanwhile, Litan came and enquired the cause of abusing his father. All the appellants had entered to their courtyard by then. Subodh Sarkar struck on the person of her son, Litan by a wooden file and he fell down on the ground. The other accused persons, named above, started assaulting him by fire wood. When she raised alarm, people from the neigbourhood rushed to the place and seeing them coming, the accused persons left that place and she brought her Page 12 of 49 son in the Mohanpur Hospital. On the next day at about 9.30 am, her son expired in the GBP hospital. [10] Mr. Bhattacharjee, learned counsel has pointed out that she denied that Subodh Sarkar did not strike on person of her son by a wooden file. Mr. Bhattacharjee, learned counsel made reference to the testimony of Soma Biswas (PW-7) who had given another story by stating that on the day and time of occurrence, Subodh Sarkar started abusing her father-in-law who was on the road. Her father- in-law entered the house. Thereafter, Subodh Sarkar by a wooden file struck on the head of her brother-in-law. He fell down on ground and according to her, the other accused person started assaulting him by fire wood. She has claimed to have witnessed the occurrence from a close quarter. She has testified that Subodh Sarkar started abusing her father-in-law when he was on the road, but no such statement could be found in the statement recorded by police. PW-8, Jhutan Biswas is the brother of the deceased. He has testified in the trial and stated inter alia as follows:
"The accused persons at that time being armed with wooden file and firewoods trespassed into our homestead and started to abuse filthy Page 13 of 49 languages when my brother Litan objected them. At that time first Subodh Sarkar gave a blow at his head by a wooden file and following him Pramode Sarkar, Madan Biswas, Usha Rani Sarkar also caused hurt to my brother on different part of his body by giving blows by sticks. I was beside him. When I tried to resist them, some blows of sticks also fell on my person. During hue and cry when local people were coming, the said persons escaped."
[11] PW-8 has stated in the trial that his brother Litan expired succumbing to the injury on the next date at the GBP Hospital, Agartala. During the cross examination, PW-8 has admitted, as pointed by Mr. Bhattacharee, that all the appellants and Subodh Sarkar were residents of the close neighbourhood or at the adjacent houses. He has also admitted that the appellants and the other accused persons belonged to rival political group. At the time of occurrence, he was beside his brother and also suffered the blow when he tried to save his brother but similar statement was not made to the investigating officer, while he was recording his statement under Section 161, but PW-8 has insisted that he had stated so to the police officer.
[12] Mr. Bhattacharjee, learned counsel has finally referred to the testimony of the investigating officer, Page 14 of 49 Shitikantha Bardhan (PW-11). PW-11 in his cross examination has categorically stated as follows:
"I collected the discharge certificate of Subodh Sarkar on 02.03.2013. His discharge certificate shows that he was admitted in the GBP Hospital on physical assault. On my quarry to Subodh he did not disclose how he received injuries and that was reflected by CD NO.2(b) dated 02.03.2013.
On perusal of the CD, this court finds that it was mentioned that Subodh Sarkar was unable to talk with him due to injuries.
I admit that it was my untrue statement that Subodh refused to make his statement about the cause of his injury."
[Emphasis added] [13] Mr. Bhattacharjee, learned counsel has also drawn attention to the testimony of Jayanta Sarkar (PW-6) an independent witness from the neighbourhood. He had heard some quarrel in the house of Litan Biswas and he had gone there. He saw that Litan was lying on the ground with bleeding injuries. Mr. Bhattacharjee, learned counsel has submitted that the report of the forensic examination (Exbt-5) as introduced by Dr. Sabyasachi Nath did not support, in any manner, the prosecution case. After examining the exhibits, one piece of wood (Exbt-A) and blood stained soil (Exbt-B), it has been observed as follows:
Page 15 of 49
1. No blood stain could be detected in the Exbt. Marked as A (one piece of wood);
2. Blood stain could be detected in the exhibit marked as B (some soil), but its origin and group could not be determined.
[14] PW-5 has stated further in the trial that the origin of blood, whether it is of human or not, could not be detected as quantity of blood in soil was too small. [15] Having referred the testimonies, Mr. Bhattahcharjee has raised three fundamental questions viz.
(1) the unexplained delay in filing the complaint to the police in respect of the occurrence strikes at the truthfulness of the prosecution case, (2) the failure of the prosecution to explain the injuries caused to the accused, might be one of private defence and (3) there was no common object of assaulting Litan Biswas (the deceased) by the purported unlawful assembly and as such by Section 149 of the IPC, the appellants cannot be bound by the offence of culpable homicide or the other offences that took place in the transaction unless the unlawful assembly in prosecution of the common object which was known to his member to be likely committed, only thereafter they can be brought in for sharing the liability of the offence.Page 16 of 49
[16] In support of his contention, Mr. Bhattacharjee, learned counsel has relied on a few decisions of the apex court as regards the inordinate delay in the lodging the complaint. To buttress the said objections, the reference has been made to Sudarshan and another vs. State of Maharashtra reported in 2014 CRI. L J. 3232 where the apex court has observed as follows:
"13. No doubt, different persons may react differently to the same situation. However, at the same time, as mentioned above, it appears very improbable that when there were as many as 15 to 20 persons, namely, the complainant and his friends, none of them even thought of going to the Police Station to report the matter, which is odd and out of ordinary behaviour in such cases. Instead, they chose to go to an Advocate, who was staying at a distance of 15 kms. The persons who were allegedly very scared would not take the risk of going a distance of 15 kms. rather than approaching the nearby Police Station within the jurisdiction of the area where the incident had taken place.
14. Strangely, in the process of defending the said conduct of the complainant and his friends, the High Court became presumptuous as it itself gave an imaginary story that there was a possibility that these persons had consumed liquor and the material thrown by them included liquor as well. It was not even the case of the prosecution, probable or otherwise."
[17] In order to contend that the failure of the prosecution to explain the injury on the accused, two results may follow: (1) the evidence of the prosecution witnesses is untrue and non-explanation of the injury Page 17 of 49 sustained by the accused at about the time of occurrence or at the time of altercation is an important circumstance from which the court can draw the inference that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version. It has been observed by the apex court in Laxmi Singh Vs State of Bihar reported in (1976) 4 SCC 394 as under:
"It is well settled that fouler the crime, higher the proof, and hence in a murder case where one of the accused is proved to have sustained injuries in the course of the same occurrence, the non- explanation of such injuries by the prosecution is a manifest defect in the prosecution case and shows that the origin and genesis of the occurrence had been deliberately suppressed which leads to the irresistible conclusion that the prosecution has not come out with a true version of the occurrence. This matter was argued before the High Court and we are constrained to observe that the learned Judges without appreciating the ratio of this Court in Mohar Rai v. State of Bihar tried to brush it aside on most untenable grounds. The question whether the Investigating Officer was informed about the injuries is wholly irrelevant to the issue, particularly when the very Doctor who examined one of the deceased and the prosecution witnesses is the person who examined the appellant Dasrath Singh also. In the case referred to above, this Court clearly observed as follows:
The trial Court as well as the High Court wholly ignored the significance of the injuries found on the appellants. Mohar Rai had sustained as many as 13 injuries and Bharath Rai 14. We get it from the evidence of P.W. 15 that he noticed injuries on the person of Mohar Rai when he was produced before him immediately after the occurrence. Therefore the version of the appellants that they sustained injuries at the time of the occurrence is highly pro-babilised. Under Page 18 of 49 these circumstances the prosecution had a duty to explain those injuries.... In our judgment the failure of the prosecution to offer any explanation in that regard shows that evidence of the prosecution witnesses relating to the incident is not true or at any rate not wholly true. Further those injuries probabilise the plea taken by the appellants.
This Court clearly pointed out that where the prosecution fails to explain the injuries on the accused, two results follow: (1) that the evidence of the prosecution witnesses is untrue: and (2) that the injuries probabilise the plea taken by the appellants. The High Court in the pre-sent case has not correctly applied the principles laid down by this Court in the decision referred to above. In some of the recent cases, the same principle was laid down. In Puran Singh v. The State of Punjab Criminal Appeal No. 266 of 1971 decided on April 25, 1975 : which was also a murder case, this Court, while following an earlier case, observed as follows: [SCC p.53] : SCC (Cri) p. 621, para 20] In State of Gujarat v. Bai Fatima Criminal Appeal No 67 of 1971 decided on March 19, 1975 : ) one of us (Untwalia, J., speaking for the Court, observed as follows: [SCC p. 13 : SCC (Cri)p.390, para 17] In a situation like this when the prosecution fails to explain the injuries on the person of an accused, depending on the facts of each case, any of the three results may follow:
(1) That the accused had inflicted the injuries on the members of the prosecution party in exercise of the right of self defence.
(2) It makes the prosecution version of the occurrence doubtful and the charge against the accused cannot be held to have been proved beyond reasonable doubt.
(3) It does not affect the prosecution case at all.
The facts of the present case clearly fall within the four corners of either of the first two principles laid down by this judgment. In the instant case, either the accused were fully justified in causing the death of the deceased and were protected by the right of private defence or that if the prosecution does not explain the injuries on the person of the deceased the entire prosecution case is doubtful and the genesis of Page 19 of 49 the occurrence is shrouded in deep mystery, which is sufficient to demolish the entire prosecution case.
It seems to us that in a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the Court can draw the following inferences:
(1) That the prosecution has sup- pressed the genesis and the origin of the occurrence and has thus not presented the true version:
(2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; (3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case.
The omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosedition one. In the instant case, when it is held, as it must be, that the appellant Dasrath Singh received serious injuries which have not been explained by the prosecution, then it will be difficult for the Court to rely on the evidence of PWs. 1 to 4 and 6 more particularly, when some of these witnesses have lied by stating that they did not see any injuries on the person of the accused. Thus neither the Sessions Judge nor the High Court appears to have given due consideration to this important lacuna or infirmity appearing in the prosecution case. We must hasten to add that as held by this Court in State of Gujarat v. Bai Fatima Criminal Appeal No. 67 of 1971 decided on March 19, 1975 : Reported in there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and credit-worthy, that it far outweighs the effect of the omission on the part of the prosecution to Page 20 of 49 explain the injuries. The present, however, is certainly not such a case, and the High Court was, therefore, in error in brushing aside this serious infirmity in the prosecution case on unconvincing premises."
[Emphasis added] [18] Reliance has also been placed on a decision of apex court in Krishnappa and Others vs. State of Karnataka reported in (2012) 11 SCC 237 as follows:
"20. It is now well settled law that the provisions of Section 149 IPC will be attracted whenever any offence committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or when the members of that assembly knew that offence is likely to be committed in prosecution of that object, so that every person, who, at the time of committing of that offence is a member, will be also vicariously held liable and guilty of that offence. Section 149 IPC creates a constructive or vicarious liability of the members of the unlawful assembly for the unlawful acts committed pursuant to the common object by any other member of that assembly. This principle ropes in every member of the assembly to be guilty of an offence where that offence is committed by any member of that assembly in prosecution of common object of that assembly, or such members or assembly knew that offence is likely to be committed in prosecution of that object. [Lalji v. State of U.P., (1989) 1 SCC 437; Allauddin Mian v. State of Bihar, (1989) 3 SCC 5; Ranbir Yadav v. State of Bihar, (1995) 4 SCC 392].
21. The factum of causing injury or not causing injury would not be relevant, where accused is sought to be roped in with the aid of Section 149 IPC. The relevant question to be examined by the court is whether the accused was a member of an unlawful assembly and not whether he actually took active part in the crime or not. [State v.
Krishan Chand, (2004) 7 SCC 629; Deo Narain v. State of Uttar Pradesh, (2010) 12 SCC 298]." [19] Mr. Debnath, learned Addl. PP in order to repel the submission of Mr. Bhattacharjee, learned counsel Page 21 of 49 appearing for the appellant has contended that finding of the trial judge does not suffer from any infirmity when he has observed that by forming a common object, the appellant entered the premises of the complainant and the non-appellant [in this appeal] Subodh Sarkar hit Litan (the deceased) by a wooden file. Mr. Debnath, learned Addl. PP has submitted that the prosecution has depended on the testimonies of PWs-1, 2, 7 and 8. Their testimonies were corroborated by the Post-Mortem-Examination report (Exbt-1) and the inquest report as carried out by the police. Mr. Debnath learned Addl. PP has vehemently submitted that the prosecution has quite succinctly proved formation of unlawful assembly and trespassing to the premises of the informant (PW-1) and having a common object, they attacked the deceased and as such no interference is called for. Even according to Mr. Debnath, learned Addl. PP, OPW-1 supported the part of the prosecution‟s narrative and thus the appellants were liable constructively for the criminal act as noted. For purpose of appreciating the submission as advanced by the learned Page 22 of 49 counsel for the partiers, it appears relevant to make a short survey of the evidence as recorded in the trial. [20] PW-1, Narendra Biswas (the informant) who filed the complaint dated 01.03.2013 (Exbt-7) has testified that on the day of counting of votes of the assembly election in the year 2013 (28 Falguna) about 3 pm, the appellants who were the supporter of the rival political party, chased him on the road in front of his house. He has named Promode Sarkar, Subhodh Sarkar, Usha Rani Sarkar, Madan Biswas, Manju Sarkar and Radha Raman Biswas. They had entered into his house and abused him in slang language and were about to assault him. He had entered in his house. His son Litan Biswas was in the courtyard. Thereafter, "Subhodh Sarkar struck on his person by one wooden file and other accused persons present on the lawn also assaulted my son. All were uttering to kill my son." Thereafter, he has stated that the accused persons had left the courtyard. At the time of occurrence, his wife Dipali Biswas (PW-2) and his son Jhutan Biswas (PW-8) were present in the house. Litan was immediately taken to Mohanpur hospital wherefrom he was Page 23 of 49 shifted to the GBP hospital. On the following day, he expired and the complaint was lodged in the Lefunga Police Station.
In the cross-examination, he has admitted that all the accused persons were his adjacent neighbours, but he did not have any dispute with them, but there was no visiting term. He has denied the suggestion that he had caused the fracture injury on the head of his son. By way of cross-examination, the defence introduced a story relating to institution of a case of physical assault on his daughter-in-laws namely, Soma Biswas and Shampa Biswas. The suggestion relating to his state of intoxication or that he had pushed Litan with sufficient force and caused the injury. That suggestion has been squarely denied by PW-1.
[21] PW-2, Dipali Biswas mother of the deceased has corroborated PW-1 on every material parts. When she raised alarms saying that her son was being assaulted, her husband (PW-1) came out of room where he took shelter.
In the cross-examination, she denied the suggestion that PW-1 caused the fracture injury of her son. Page 24 of 49 Other suggestions as extended to her were squarely denied in the cross examination.
[22] PW-3, Dr. Jhutika Debbarma carried out the post mortem examination of Litan Biswas (the deceased) on 01.03.2013. She has stated in the trial as follows, and admitted the post mortem examination report (Exbt-1):
"One stitched lacerated wound measuring 7 cm x .2 cm x bone deep was present obliquely over the right fronto-parietal area of the scalp, mid point of the wound was 2 cm. From mid line and 8 cm above the right eye brow. It had 6 stiches and the scalp hair was found shave off around the wound. The margins of the wound were abraded, contused and irregular and blood stained. Internal examination on scalp- on reflection, extravasation of blood was seen over bilateral frontal, left parieto-temporal area. Bruising was present in the left temporalis muscle. Skull- Diastatic fracture was present of the coronal suture as shown in figure below. Brain- congested and edematous. Extradural haemorrhage in the form of organized clot was present over the fronto- temporo-parietal lobes. Contusion was present over the convexity of left temporal lobe.
Time since death : about 6 to 6 hours.
In my opinion death was come due to head injury produced by an impact of hard and blunt force. Age of the injury was about 16 to 20 hours at the time of death."
In the cross-examination, PW-3 has admitted that on the basis of the external injury available on the body of the deceased, she was certain that there was surgical intervention. But she does not know what the surgical intervention was about. Even Page 25 of 49 she has clearly stated that she cannot say as the condition of the deceased just after sustaining injury.
She has made a categorical statement that she cannot as well say about any negligence in the treatment after the injured was admitted in the hospital. But she denied the suggestion that the post mortem examination was not carried scientifically. It may be noted that even though the defence adduced evidence but they did not take forward that plea further.
[23] PW-4, Hemlata Debbarma was an Assistant Sub-Inspector of Police working in the GB TOP on 01.03.2013. She carried out the inquest procedure in respect of the dead body of Litan Biswas.
The report thereof (Exbt-2) has been introduced by her. That apart, she has seized the wearing apparels of the deceased by preparing seizure list (Exbt-3). She has also seized a piece of cloth collected at the time of post mortem examination by preparing a seizure list (Exbt-4). Those were seized by the investigating Page 26 of 49 officer subsequently. She has disclosed how she was authorized to carry out the inquest.
[24] PW-5, Dr Sabyasachi Nath, a Scientific Officer from State Forensic Science Laboratory (SFSL) carried out the examination of two exhibits, one piece of wood (Exbt-A) and some soil (Exbt-B). But he has stated in the trial that no blood stain was found in the Exbt-A but even though blood stained could be detected in Exbt-B but its origin and group could not be determined.
[25] PW-6, Jayanata Sarkar a neighbouring witness has stated that he heard some quarrel taking place within the family of PW-1. He found Litan Biswas lying with bleeding injury on their courtyard when he had entered in the house of PW-1. He was one of them who took the injured to Mohanpur Hospital. Even he accompanied the injured to the GBP Hospital. He has answered to the court‟s query that he cannot name the persons between whom the quarrel took place. At that juncture, PW-6 was declared hostile and his previous Page 27 of 49 statement as recorded was admitted as Exbt-6, subject to confirmation by the investigating officer.
[26] PW-7, Soma Biswas has claimed to be an eye witness of the occurrence and has stated as follows:
On 28th Falgun of last year at 3.30 pm, I was in my house. Accused Subodh Sarkar started abusing my father-in-law who was on the road. On seeing Subodh my father-in-law came back, entered inside the house. Subodh Sarkar thereafter struck by a wooden pile on the head of my brother-in-law, as a result, he fell down on the ground. At that time Madan Biswas, Radharaman Biswas, Manju Sarkar, Usha Rani Sarkar, and Promode Sarkar started assaulting my brother-in-law by fire wood. I noticed the entire incident at a distance of 2/3 cubits from the place of incident. Thereafter, Litan was taken to Hospital. All the accused persons are present today in the dock.
She has stated in the trial that 50/60 people came to the spot on hearing hue and cry. She has confirmed that when her father in law (PW-1) was on the road Subodh Sarkar started abusing her father in law. A similar statement was found in her previous statement. She has denied the suggestions made contrary to what she has said in the examination-in- chief.Page 28 of 49
[27] PW-8, Jhutan Biswas is the full blood brother of the deceased, Litan Biswas. The day of occurrence was the day for counting the assembly votes. His mother, his wife and his elder brother were at home. His father was on the road near their house. At that point of time, Subodh Sarkar, Madan Biswas Promode Sarkar, Manju Sarkar, Usha Rani Sarkar and Radharaman Biswas known as supporters of a rival political party abused PW-1 and he rushed to his house and took shelter inside a room. According to PW-8, the appellants and one Subodh Sarkar being armed with wooden file and fire wood trespassed into their house and started to abuse his father. Litan Biswas objected and he has made the categorical statement which reads as follows:
The accused persons at that time being armed with wooden file and firewoods trespassed into our homestead and started to abuse filthy languages when my brother Litan objected them. At that time first Subodh Sarkar gave a blow at his head by a wooden file and following him Pramode Sarkar, Madan Biswas, Usha Rani Sarkar also caused hurt to my brother on different parts of his body by giving blows by sticks. I was beside him. When I tried to resist them, some blows of sticks also fell on my person. During hue and cry when local people were coming, the said persons escaped.Page 29 of 49
[28] PW-8 has admitted that the appellants and Subodh Sarkar are their "mere neighbours". He has stated that injured was taken first to the Mohanpur Hospital and thereafter to the GBP Hospital. He died on the following day succumbing to the injury that he had received in the said occurrence. He was witness to the inquest procedure.
In the cross-examination, he has categorically stated that houses of Subodh Sarkar and Madan Biswas are adjacent to their house. He stood by his statement made during the examination-in chief. But he has reiterated that when his brother Litan objected to the abusive languages at his father, Subodh Sarkar gave a blow by wooden file on the head of his brother. Following that, Promode Sarkar, Madan Biswas and Usha Rani Sakar assaulted him with stick. Even, he was not spared.
[29] PW-9, Shampa Biswas wife of the deceased was away from home on the day of occurrence, but Page 30 of 49 she received the information and attended her husband (the deceased) on the hospital. She has confirmed that Nidhuram Biswas and Jayanta Sarkar (PW-6) had been there in the hospital at Mohanpur and they accompanied her husband to the GBP Hospital. The other statement that she made in the trial was heard from Nidhu Ram Biswas and Jayanta Sarkar. Nidhu Ram has not been examined by the prosecution in the trial.
[30] PW-10, Niren Debbarma, the recording officer of the complaint and he has stated nothing more in the trial.
[31] PW-11, Shitikanta Bardhan had recorded in the GD/ the entry No.10 dated 01.03.2013 in respect of the group clash at about 03.30 afternoon. He has admitted the GD entry (Exbt-9) as he was deputed in the place of occurrence for maintaining law and order. Later on, he recorded the oral ejahar (Exbt-7) made by PW-1. He had also prepared hand-sketch with index (Exbts-10 and 11 respectively). The said ejahar was Page 31 of 49 sent to the police station and after the case was registered, he carried out raids to arrest the accused persons. Subodh Sarkar was found hospitalized at GBP hospital at Agartala. He had found the wooden file measuring 3‟ x 2" x 2.5". He seized the same by preparing the seizure list (Exbt-13). He had arrested another accused namely Radharaman and produced him before the Magistrate. On release of Subodh Sarkar from the hospital, he also produced him before the Magistrate. He had carried out the investigation by recording the statements of the witnesses and by seizing the wearing apparels of the deceased by preparing a separate seizure list (Exbt-14).
In the cross examination, he has categorically stated as follows:
I collected the discharge certificate of Subodh Sarkar on 02.03.2013. His discharge certificate shows that he was admitted in GB Hospital on physical assault. On my quarry to Subodh he did not disclose how he received injuries and that was reflected by CD No.2(b) dated 02.03.2013.
On perusal of the CD this court finds that it was mentioned that Subodh Sarkar was unable to talk with him due to injuries.
I admit that it was my untrue statement that Subodh refused to make his statement about the cause of his injury. Page 32 of 49 He has candidly admitted that he did not see the dead body during the part of the investigation. [32] PW-12, Sukramani Debbarma is the other investigating officer who took charge from PW-11 Shitikanta Bardhan and he, having found prima-facie case against the accused persons, filed the charge sheet. From the defence as noted earlier, three witnesses who were accused were examined. [33] OPW-1, Usha Rani Sarkar has categorically stated that she saw Narnedra Biswas (PW-1) striking on the head of his son (Litan) by a heavy branch of tree. She and her son Subodh Sarkar along with another neighbour rushed to their house. At that point of time, PW-1 fled from the place of occurrence leaving his son Litan Biswas bleed. She nursed him. She even visited the GBP hospital. But, she has stated that first the injured was taken to the Mohanpur Hospital. Narendra Biswas also dealt a blow on the head of her son and when she raised alarm neighbouring people Page 33 of 49 gathered there. She was cross examined by the prosecution and denied that there was political rivalry. OPW-1 and the others visited the house of PW-1. [34] OPW-2, Promode Acharjee, has stated that at the request of some people he went to the house of PW-1. Seeing him coming PW-1 shouted at him and asked to go away. He has not disclosed anything beyond that.
[35] OPW-3, Smt. Raidhani Biswas has stated that on hearing a quarrel, she went to the house of Narenda Biswas and found that Litan was lying wounded near feeding vessel of cattle. She also found Narendra in the intoxicated state. She found Subodh Sarkar, the accused and his mother. When Subhodh Sarkar went to the house of Narendra Biswas, he also assaulted Subodh Sarkar by means of a stick. [36] The pertinent questions that arise out of this appeal are (1) whether against the appellant the prosecution has proved that the appellants have formed unlawful assembly in prosecution of a common Page 34 of 49 object, (2) whether the appellants committed rioting being armed with deadly weapon, (3) whether they had committed criminal trespass within the meaning of Section 441 of the IPC with intent to commit an offence of insult or to annoy any person in possession of such property and finally (4) whether for non explanation of the injury as received by the non- appellant, Subodh Sarkar the prosecution case should be disbelieved for suppression of material facts from the pristine process of justice.
[37] In order to attract Section 149, it must be shown that the incriminating act was done to accomplish the common object of unlawful assembly. It must be within the knowledge of the other members as one likely to commit in prosecution of common object. If members of the assembly knew or were aware of the likelihood of a particular offence being committed in prosecution of a common object, they would be liable for the same. In Waman vs. State Maharasthra (2011) 7 SCC 295 the apex Page 35 of 49 court has dilated on the same principle by observing as under:
"40......Section 149 creates a specific offence and deals with punishment of the offence. Only thing whenever the court convicts any person or persons of any offence with the aid of Section 149, a clear finding regarding the common object of the assembly must be given and the evidence disclosed must show not only the nature of the common object but also that the object was unlawful. In order to attract Section 149 it must be shown that the incriminating act was done to accomplish the common object of unlawful assembly. It must be within the knowledge of the other members as one likely to be committed in prosecution of common object. If members of the assembly knew or were aware of the likelihood of a particular offence being committed in prosecution of a common object, they would be liable for the same under Section 149. The trial Judge on thorough analysis held that the prosecution has made out a case against the accused."
[38] Even if, no overt act is imputed to a particular person when examining the charge under Section 149 of the IPC, the mere presence of the accused as part of "unlawful assembly" is not sufficient for conviction. In Surendra vs. State of UP reported in (2012) 4 SCC 776, the apex court has laid the law in the following term:
"12. In Sarwan Singh1, this Court observed that when the injuries caused were cumulatively sufficient to cause death, it was necessary for the Court before holding each of the accused guilty under Section 302 read with Section 149 IPC to find that the common object of the unlawful assembly was to cause death or that the members of the unlawful assembly knew it to be likely that an offence under Section 302 IPC would be committed in furtherance of the common object. The Court then examined the above question in light of the injuries sustained by the deceased. In paragraph 8 of the report, the injuries have been noticed. The Court then noticed the circumstances of the case particularly Page 36 of 49 that an unexpected quarrel took place between the members of the same family over a dispute as to water rights. Consequently, the Court held that the common object of the assembly was not to cause bodily injury sufficient in the ordinary course of nature to cause death. The Court held that the common object of the assembly, in the circumstances, could only be said to cause injuries which were likely to cause death. In Sarwan Singh1, accordingly, it was held that the offence would be under Section 304 Part-I IPC."
[39] The trial judge having analysed the evidence has observed that on the day of counting of the assembly election, out of political enmity, the accused persons being armed with wooden file, firewood etc trespassed into the premises of PW-1 and abused him in filthy language and when his son, Litan objected, Subodh Sarkar who was having a wooden file in his arm, gave a blow on the head of the informant‟s son. The trial judge has observed as follows:
"Definitely they did not go there with peaceful purposes when they were armed with wooden file etc and number of the accused persons were more than five. So it is proved that the accused persons formed an unlawful assembly for the purpose of committing an offence in the house of the informant. So the offence under section 148 IPC as against all the six accused persons namely Sri Pramode Sarkar, Madan Biswash, Sri Subodh Sarkar, Smt. Usha Rani Sarkar, Smti. Manju Sarkar and Sri Radha Raman Biswas is proved as they were rioting with wooden file, fire woods as weapon as is like to cause death. So, I find that the offence under section 148 IPC is proved against all the accused persons."Page 37 of 49
[40] After this superficial observation, the trial judge has further observed at Para-17 of the judgment as follows:
"17. it is true that the evidence of the prosecution does not show that either by conduct or by other means the accused persons showed their intention/pre-conceived mind to cause the death of Litan. But, since due to the fatal blow of wooden object on the head of victim made by Subodh the victim succumbed, the circumstances attract part-II of section 304 IPC as against Subodh Sarkar directly and against other accused persons as they were the members of such unlawful assembly under section 149 of IPC. In my considered view this is a case of culpable homicide not amounting to murder within the ambit of section 304 Part II IPC."
[41] There cannot any amount of dilemma in respect of the judicial opinion forming the criminal liability embedded by section 149 of the IPC. Whenever the court convicts any person or persons of any offence with the aid of section 149, a clear finding regarding the common object of the assembly must be given and the evidence, so disclosed, must show not only the nature of the common object but also that the object was unlawful. In order to attract section 149 it must be shown that the incriminating act was done to accomplish the common object of unlawful assembly. It must be within the knowledge of the other members as one likely to be committed in prosecution of Page 38 of 49 the common object. If the members of the assembly knew or were aware of likely occurrence of the particular offence being committed in prosecution of a common object, they would be liable for the same under section 149 of the IPC.. [42] The trial judge in the case in hand did not give any opinion on appreciation of the evidence that the common object was formed beforehand and in prosecution of that common object, Subodh Sarkar committed the homicide.
[43] On the contrary, the clear prosecution case is, as it would be evident from the testimony of PW-1 that Subodh Sarkar and the other appellants used abusive language against PW-1 on the road and PW-1 being apprehensive of physical assault, took shelter in his house when Subodh Sarkar (the non-appellant) and others entered in the house of PW-1. When Litan Biswas (the deceased) raised objection about such conduct, Subodh Sarkar, as observed by the trial judge, struck a blow by a wooden file on the head of Litan Biswas. That caused death. If the transaction is dissected, it would be further apparent that there was no common object formed Page 39 of 49 beforehand to hit Litan Biswas. It was on the spurt of moment that Subodh Sarkar hit on the head of Litan Biswas and as such, by the aid of section 149 of the IPC, the criminal liability for the offence under section 304 Part- II of the IPC cannot be attributed to the appellants as nobody was aware that on the face of protest raised by Litan Biswas, Subodh Sarkar might deal with blow on Litan Biswas. This court does not have any hesitation to hold that the appellants were not part of any unlawful assembly having common object of assaulting Litan Biswas.
Thus, the appellants are liable to be acquitted from the charge under Section 149 of the IPC. [44] For purpose of holding someone liable to be convicted under section 148 of the IPC, the prosecution shall invariably establish that there was formation of unlawful assembly with a common object to commit crime. If suddenly on the spurt of the moment or on heat of passion any criminal act is carried out, the accused, even though more than five in number, can only be held liable for their individual act and not constructively either under Page 40 of 49 section 147 or under section 148 or under section 149 of the IPC.
[45] In Mariadasan and Ors. vs. State of Tamil Nadu reported in AIR 1980 SC 573, the apex court in the facts and situation of that case, had occasion to observe the curve out the law in respect of the basic principle to convict someone under Sections 147, 148 and 149 of the IPC. The relevant part thereof is produced hereunder:
"No overt act was ascribed to A5, Reading the evidence of PW l as also the allegations made in the FIR we are satisfied that there was no satisfactory evidence to prove the formation of any unlawful assembly at any time with the common object of assaulting or killing either the deceased Francis or PW1. The whole fight started suddenly on the spur of the moment in a heat of passion and, therefore, the accused could only be liable for the individual acts committed by them. For these reasons, therefore, we agree with Mr. Singh that there is no evidence to support the conviction of rioting under Secs 149, 148 or 147 IPC as recorded by the High Court."
[46] Hazara Singh & Others vs. State of Punjab reported in (1971) 1 SCC 529, it has been held by the apex court as follows:
"As regards, the conviction of the appellants under S. 148 of the Indian Penal Code we find it difficult to uphold the same. According to that section whoever is guilty of rioting being armed with deadly weapons or with anything which used as a weapon of offence, is likely to cause death, shall be punished with imprisonment of either Page 41 of 49 description for a term which may extend to three years, or with fine, or with both. Rioting is defined by s. 146 which provides that whenever force or violence is used by an unlawful assembly or any member thereof in prosecution of the common object of such assembly every member of such assembly is guilty of the offence of rioting. Section 349 gives the meaning of the word "force". The learned counsel for the State has not been able to show how any force or violence is proved to have been used by the appellants in prosecution of the common object of the unlawful assembly of which they were members. With the exception of the firing of the shots in a direction which cannot be determined no attempt was made by any of the appellants to use any force or violence on any member of the police party. Consequently the conviction of the appellants under s. 148 must also be set aside."
[Emphasis added] [47] The trial judge did not hesitate to record on appreciation of testimonies of PWs 1, 2, 7 and 8 as also discussed by this court that "after Litan fell on the ground receiving a blow of a wooden file by Subodh Sarkar, other accused also caused hurt to Litan by firewood, kick etc do not get corroboration from medical evidence and that fact is not proved beyond all shadow of doubt. So participation of the other accused in causing hurt to Litan is not proved beyond all shadow of doubt."
[48] Therefore, whether the appellants were the members of the unlawful assembly within the meaning of section 149 of the IPC or not is a pivotal question to appreciate the challenge raised in the appeal. It is well Page 42 of 49 settled that a mere assembly of persons, however, big or small does not constitute an unlawful assembly where the gathering is for a lawful purpose. Even if, some members of the assembly resort to unlawful force or commit offences, the essential pre-requisite to render the assembly become unlawful is that the assembly should have one or more of the common object. Common object can also be gathered from the nature of the assembly and the behaviour of the assembly before the occurrence. [49] In the present case, PW-1 is the witness who has only narrated the pre-occurrence conduct of the appellants. Surprisingly enough, PW-1 who was according to the prosecution was target of abuse does not blame the appellants who has been named by them, was armed with firewood etc. PW-1 has stated that when he was on the road in front of his house, the appellants and Subodh Sarkar (the non-appellant) entered in the house, abused him with slang language and came forward to assault him. He has not stated that the appellants were wielding firewood in their hand. He has categorically stated that Subodh Sarkar hit on the head of his son, Litan Biswas by Page 43 of 49 a wooden file. Thus, it is apparent that the appellants having wielded with woods, trespassed into house of PW-1 and as such their carrying deadly weapons, if the firewood is considered as the deadly weapon, has not been established. Moreover, PW-1 was not hurt. Therefore, from the nature of the transaction, it can be said that the intention was not to assault PW-1. What Subodh has done, it was done on the spur of the moment, as stated earlier when Litan Biswas raised protest against the abuse on his father.
[50] Thus, this court is unable to accept that the charge against the appellants under section 148 of the IPC has been held correctly. The finding as regards „being armed with deadly weapons‟ or with anything which might have been used as a weapon of offence is not available in the judgment, as challenged in this appeal. Hence, the two basic ingredients viz, the common object to prosecute and wielding deadly weapon etc are absent in the evidence. Moreover, there is no evidence that the appellants had taken part in violence. The medical evidence in regard has Page 44 of 49 completely diminished the story of assault on Litan Biswas by the appellants.
Hence, the appellants are acquitted from the charge under Section 148 of the IPC.
[51] But this court finds adequate evidence of criminal trespass committed by the appellants by entering in the house of PW-1. In Mathuri and Others vs. State of Punjab reported in AIR 1964 SC 986, the apex court enunciated or located the ingredient materials for coming to a decision whether the house trespass has been committed or not. The inalienable ingredient of the offence of criminal trespass is "the entry", with intent to commit any crime or to intimidate, insult or annoy any person in possession of the property. It has been observed in Mathuri (supra) as follows:
"It follows from this that the mere fact that the natural consequence of the entry was known to be annoyance to the person in possession would not necessarily show that the entry was made "with intent to annoy". That fact as to what the natural consequence would be and the presumption of this being known to the person so entering would be only one circumstance to be taken into consideration along with other circumstances for the purpose of deciding the question with what intent the entry was made. Surprisingly enough the Bombay High Court held only a few years later in Emperor v. Laxaman Raghunath(1) which was a case under s. 448 of the Indian Penal Code that to prove the intention necessary for the purpose of the offence of Page 45 of 49 criminal trespass it is sufficient to show that the man did the act with the knowledge that the probable consequence would be annoyance to the complainant. Fulton J. who delivered the judgment of the Court said that the result of the authorities seem to be that "although there is no presumption that a person intends what is merely a possible result of his action or a result which though reasonably certain is not known to him. to be so, still it must be presumed that when a man voluntarily does an act, knowing at the time that in the natural course of events a certain result will follow, he intends to bring that result". It is fair to notice that Fulton J.had been a party to the earlier decision in Bhagwant v. Kedari (2), though no reference to what was said about the meaning of the word "intent" in that case appears to have been made in the latter case. It is to be noticed that this view of the law in Laxman Raghunath's case(" has not been followed by the Bombay High Court in recent years. In Emperor v. D' Cunha (3) it was explained that while the question of knowledge (1) I.L.R. 26 Bombay 558. (2) I.L.R. 25 Bombay 202. (3) 37 B.L.R. 880 as to what would be the natural consequence of the act can be taken into consideration in deciding the intention of the party that is only one of the circumstances that have to be considered. The view that annoyance is a natural consequence of the act. and it is known to the person who does the act that such is the natural consequence is not sufficient to prove that the entry was with intent to annoy has been consistently taken in the Calcutta High Court. See Nizamuddin v. Jinnat Hussain(1); Satish Chandra Modak v. The King(2) ; Bata Krishna Ghosh v. The State(3); The State v. Abdul Sakur(4). The same view was taken by the Madras High Court in 1896 in the case of Queen Empress v. Rayapadaayachi(5). As a different view was taken by that High Court in 1912 in Sellamuthu Servaigaran v. Pallumuthu Karuppan(6) the matter was examined by a Full Bench of the High Court in Vullappa v. Bheema Row(7) in 1917. The full Bench held that the correct view had been taken in Queen Empress v. Rayapadaayachi(5) (supra) and that the legislature did not intend in s. 441 that doing the act with the knowledge of its consequence should be punishable.
Kumaraswami Sastriyar J. stressed the fact that wherever the Penal Code wanted to make a man liable for knowledge of consequences it expressly said so as in ss. 118 to 120, 153, 154, 217, 293 etc. The learned Judge agreed with an Page 46 of 49 observation of Sir William Mark by (Elements of Law, para 222) in that a consequence would follow or a knowledge "that it is likely to follow without any desire that it should follow is an attitude of mind which is distinct from intention. The Madras High Court has thereafter adhered to this view of the law. The Allahabad High Court took a similar view of this matter in Emperor v. Motilal(8). Mr. Kohli (1) A.I.R. 1948 Cal. 130. (2) A.I.R. 1949 Cal. 107. (3) A.I.R. 1957 Cal. 385. (4) A.I.R. 1960 Cal. 189. (5) 9 Mad. 240. (6) I.L.R. 35 Mad. 186. (7) I.L.R. 41 Mad. 156. (8) I.L.R. 47 All.
855. has relied on a decision of the Allahabad High Court in Kesar Singh v. Prem Ballabh (1) in which the learned Judge (Desai J.) held that where the probable consequence of the act of the accused was to cause annoyance to the complainant it will be presumed that they committed the trespass with that intention and as that intention was not rebutted the accused was rightly convicted under s. 447. We think, with respect, that this statement of law as also the similar statements in Laxaman Raghunath's Case(2) and in Sellamuthu Servaigaran's Case (3) is not quite accurate. The correct position in law may, in our opinion, be stated thus: In order to establish that the entry on the property was with the intent to annoy, intimidate or insult, it is necessary for the Court to be satisfied that causing such annoyance, intimidation or insult was the aim of the entry; that it is not sufficient for that purpose to show merely that the natural consequence of the entry was likely to be annoyance, intimidation or insult, and that this likely consequence was known to the persons entering; that in deciding whether the aim of the entry was the causing of such annoyance, intimidation or insult, the Court has to consider all the relevant circumstances including the presence of knowledge that its natural consequences would be such annoyance, intimidation or insult and including also the probability of something else than the causing of such intimidation, insult or annoyance, being the dominant intention which prompted the entry."
[52] In the light of the said decision, there should not be any hesitation to hold that the prosecution has well founded their case that the appellants have committed house trespass punishable under section 447 of the IPC as Page 47 of 49 while analyzing the evidence it has been noticed that „all‟ of them were using abusive language against PW-1, out of political rivalry, which had created annoyance to the members of the family, including PW-1 and his son, Litan Biswas had reacted sharply. But again, by aid of section 149, the appellants cannot be criminally made liable to be punished. The witnesses as stated above have specifically named the appellants of using abusive language and gesture against PW-1. Thus, they are individually liable to be punished under section 447 of the IPC.
Hence, the conviction under section 447 of the IPC stands affirmed subject to the above observation. The consequential sentence for committing the offence punishable under Section 447 of the IPC, therefore, stands affirmed. Hence, the appellants would suffer rigorous imprisonment for a period of three months. The detention, if any, suffered by the appellants during investigation and trial shall be set off in terms of section 428 of the CrPC. [53] The plea that has been succinctly raised by Mr. Bhattacharjee, learned counsel is that the delay in lodging Page 48 of 49 the FIR has occurred for framing a false case against the appellants. True it is that in the ordinary course of action, it might not have happened but considering the tension that mounted in the area following the occurrence, the delay may not be given that amount of primacy to hold that the entire prosecution case is not probable or not worthy of credence. This court does not have any difficultly to accept the principle laid down in Laxmi Singh (supra) that non-explanation of the injury sustained by the injured accused, Subodh Sarkar may lead to the inference that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the two versions. The investigating officer (PW-11) has categorically admitted that Subodh Sarkar was admitted in the hospital with complaint of physical assault and he had collected the discharge certificate from GBP hospital on 02.03.2013. But he has admitted that he has not investigated into that aspect of the matter. What is most surprising is that the defence also did not discharge their onus in respect of the injuries received by Subodh Sarkar (the non-appellant in the present appeal).
Page 49 of 49
[54] Even OPW-1 (mother of Subodh Sarkar) did not mention whether Subodh Sarkar was assaulted in the transaction or not. Thus, the submission of Mr. Bhattacharjee, learned counsel appearing for the appellants, may not be advantageous for the accused appellants. Since in this appeal this court is not examining the objection relevant against the finding that Subodh Sarkar has committed the offence punishable under Section 304 Part II of the IPC, further elaboration appears not essential.
Having observed thus, this appeal is partly allowed.
Send down the LCRs forthwith.
JUDGE Dipak