Gauhati High Court
Moina Gogoi vs The State Of Assam on 8 June, 2012
Author: P.K.Musahary
Bench: P.K.Musahary
IN THE GAUHATI HIGH COURT
( The High Court of Assam,Nagaland,Meghalaya, Manipur,Tripura,
Mizoram and Arunachal Pradesh)
Crl A.No. 91(J)/2005
Shri Moina Gogoi ..Convict /Appellant.
- Versus-
The State of Assam ..Respondent.
PRESENT THE HON'BLE MR. JUSTICE P.K.MUSAHARY For the appellant : Mr. C.Bhattacharyya, Amicus Curiae.
For the respondent : Mr. K.Munir, Alld. P.P,Assam.
Date of hearing : 11.05.2012.
Date of judgment : 08.06.2012
JUDGMENT AND ORDER (CAV)
The appellant prefers this appeal from jail against the judgment dated 30.07.2005 rendered by the learned Ad-hoc Additional Sessions Judge,Lakhimpur in Sessions Case No. 120(NL)/2002 whereby he was convicted U/S 304 Part I of the IPC and sentenced to undergo R.I. for 10 years and to pay a fine of Rs. 500/- and in default of payment of fine, to undergo further R.I for a period of 6 months.
2. The prosecution narrated its story as under :-
On 17.11.96 at around 2.30 P.M, the accused persons in a group armed with Khukri, lathi and sickle trespassed into the informant's paddy field situated adjacent to her house and intercepted her husband Tonkeswar Gogoi ( since deceased). The accused Moina Gogoi then dealt blows with Khukuri on informant's husband 2 inflicting injuries on head and various parts of his body. The injured husband after the incident was immediately shifted in a taxi to Civil Hospital,North Lakhimpur where he succumbed to his injuries at around 6 P.M. The FIR was lodged by the informant on the next day against 5 persons namely, Shri Moina Gogoi ( present appellant), Shri Pakaria Gogoi @ Premodhar Gogoi, Shri Manu Gogoi, Son Gogoi and Shri Saru Pitou Gogoi.
3. On the basis of the FIR, Bihpuria P.S. Case No. 357/96 was registered U/S 147/148/447/302 IPC. The I.O. visited the place of occurrence, seized a split wooden handle of a khukuri and a 6 inches long Khukuri without handle with a hole towards the bottom from the place of occurrence .He held the inquest over the dead body,sent the dead body for post-mortem examination and collected the post- mortem report.
4. After completion of investigation, chargesheet was submitted against Moina Gogoi, Pakaria Gogoi ,Manu Gogoi, and Son Gogoi. Out of them Manu Gogoi and Son Gogoi were declared absconders. On receipt of the case record on committal from the learned SDJM (S), Lakhimpur, the learned Ad-hoc Additional Sessions Judge, Lakhimpur framed charge U/S 147/148/447/302 IPC. The accused Moina Gogoi and Pakaria Gogoi stood the trial pleading innocence and not guilty. The trial proceeded against them after splitting the case from the other charge sheeted accused persons as they remained absconders.
5. The prosecution examined 6 witnesses including a Medical Officer and the I.O. The accused persons were examined by the learned trial court U/S 313 Cr.P.C. Putting before them all the incriminating evidence. They declined to adduce evidence in their defence. The learned trial court, thereafter, on consideration of the materials and evidence on record and upon hearing the learned counsel for the parties, acquitted the co-accused Premodhar Googoi (Pakaria Gogoi) for want of cogent evidence against him and convicted and sentenced accused Moina Gogoi as stated above.
36. Informant Smt. Malati Gogoi, wife of the deceased was examined as P.W-1. As per her evidence she came to the place of occurrence after she came to know about the incident from others. She saw her husband lying with cut injuries and she did not find him in a state capable to talk as he was lying unconscious. In cross- examination she stated that she does not know who was involved in causing death of her husband. On arrival at the place of occurrence she found her husband lying in the field with cut injuries. She also stated that her father-in-law Bhadreswar died about 3 years ago due to his old age.
7. The prosecution projected P.W-2 Smt. Moinamati Gogoi, P.W-3 Smt. Anita Gogoi and P.W-4 Smt. Junmoni Gogoi as eye witnesses.Their evidence is appreciated below.
8. Smt. Moinamati Gogoi is the mother of the deceased. As per her evidence she heard hue and cry on the date and at the time of occurrence and came to know from others that accused Moina Gogoi cut her son Tonkeswar and he was shifted to hospital immediately but he died on the way. In cross-examination she stated that she did not see who killed her son Tonkeswar . However, she stated that a quarrel took place at the paddy field between his son and accused Moina and at the time of occurrence the said accused Moina was in the paddy field. She also stated that there was a dispute between her husband and accused Moina Gogoi over paddy field. As per her evidence on hearing hue and cry she looked towards the paddy field but because of poor eye sight due to old age, she could not ascertain who were involved in the scuffle. She did not go to the place of occurrence.She is not an eye witness.
9. P.W-3 Anita Gogoi is the sister-in-law of the deceased. In her examination in chief she deposed that on the day and at the time of occurrence she was at home and came out after hearing hue and cry in the field and saw accused Moina Googoi, Premodhar Gogoi and her elder brother Tonkeswar involving in a fight in the field. Accused Moina Gogoi and Premodhar Googoi cut her elder brother. He died on the way while he was being shifted to hospital in the injured 4 state. In cross-examination she however, stated that he did not see with her own eyes who cut the deceased Tonkeswar Gogoi. This P.W-3 , in fact, is not an eye witness as projected by the prosecution.
10. P.W-4, Junmoni Gogoi is the sister of the deceased. Her deposition is that the occurrence took place in the field and she saw the incident in the field. Her deceased brother Tonkeswar died as a result of cut injuries. In cross-examination this witness stated that on hearing hue and cry she looked towards the field and saw 20/25 people at the place of occurrence. At the same time she also stated clearly that she was not able to ascertain the identity of the people who gathered at the place of occurrence. She however, stated clearly that accused Moina Gogoi and Tonkeswar had a scuffle in the field. She also stated that there is a dispute between them over the paddy cultivation and in the year of occurrence, the accused cultivated paddy in the disputed field. She did not go to the place of occurrence. She denied the suggestion that when her father dealt dao blow on the accused, the blow landed on her elder brother Tonkeswar. She could not ascertain from the distance who had cut whom. So. She is also not an eye witness.
11. The I.O. of the case is P.W-6 who testified his visit to the place of occurrence, recovery and seizure of articles as mentioned in the seizure list Ext. 2 and collection of post-mortem report. He admitted in cross-examination that he visited the place of occurrence on the same day but he seized the crime weapons /articles on the next day. The articles could not be seized on the day of his visit to the place of occurrence as it was already dark. As per the evidence though the occurrence took place at the field belonging to one Khagen Gogoi, he did not examine him during investigation. He also did not examine Purno Gogoi who had a plot of land nearby the land of Khagen Gogoi, father of the accused and Bhadreswar Gogoi, father of the deceased who also owns a plot of land near the place of occurrence. In cross- examination he also stated that P.W-3 Anita Gogoi did not tell him that he has seen the accused Moina Gogoi and his father Purna Gogoi committed the offence.
512. P.W-5 was the Medical Officer in North Lakhimpur Civil Hospital where he held the post-mortem examination of the dead body and prepared a report . He proved the post-mortem report marked as Ext, 3 and his signature thereon marked as Ext 3(1).In his evidence he found the following injuries :-
" 1. One large open wound over the left side of his face with an incised wound across the left side of mandible with fracture of the mandible.
2. One 4 inches( approx) long incised wound on the frontal area cutting through the scalp and the frontal bone-exposing the brain with haematoma underneath.
There was clotted blood in the sub-dural space. All the wound were ante mortem in nature."
3. One incised wound approximately 2 " long across the scalp on the left temporal region cutting through the bones.
There was clotted blood in the sub-dural space.
All the wound were ante mortem in nature."
In the opinion of Doctor, the persons died of shock & haemorrhage due to the injuries sustained .
In cross- examination he clarified the above injuries could be caused in a fight between two groups of people armed with dao or sharp weapons.
13. I have perused the statement of the convict/appellant recorded U/S 313 Cr.P.C.On the quarry of the court as to whether he had anything more to say he replied as under :-" Yes, I have. It were we who had cultivated the land , the place of occurrence.It was harvesting time.That day when I went to harvest paddy, Tankeswar came who quarreled with me. With him his deceased father Bhadreswar too had come.When they made attempt to beat us a scuffler followed by pushing and pulling between them and us took place. Tankeswar might have sustained injuries then. I am not aware of his sustaining injuries.Previously, Tankeswar and other had tried to dispossess us from our paddy field, which we had cultivated, without any reason by cutting away paddy."
14. From the above statements it is understood that scuffle took place in the field under the occupation and cultivation of the accused 6 persons. Deceased Tankeswar Gogoi, followed by his father Bhadreswar, entered the paddy field of the accused and picked up quarrel. They attempted to beat in the scuffle. The fact that the incident took place in the field of accused Moina has been proved by P.W-2, Moinamati Gogoi, wife of Bhadreswar Gogoi. She stated in cross-examination that " killing took place at the paddy field along with the accused Moina. At the time of occurrence accused Moina had paddy cultivation (at the place of occurrence ) ".The statement of the convict/ appellant U/S 313 Cr.P.C. is found supported/ corroborated by an important witness of the prosecution. There is enough evidence that a dispute over the paddy cultivation existed between the parties and on the previous day of the date of occurrence, the deceased Tankeswar and others tried to dispossess the accused/persons of he paddy field which was cultivated by them. In the aforesaid proved facts and circumstances the deceased and his father can be termed as attackers and if not, at least trouble makers. Although there is no evidence that they carried weapons with them while entering the paddy field of the accused persons, there is no difficulty in drawing a presumption that they carried sharp weapon like dao,khukuri etc.They might have carried some weapon either to attack or defend themselves against any possible attack from the other party. The accused persons, being engaged themselves in cultivation/ harvesting it was not unlikely that they were also having some weapon like dao, sickle etc. The possibility of both the parties being armed with dao/khukhuri etc and using them during scuffle cannot be ruled out.The accused/persons may attack the people on private defence in case the deceased and his father are taken as attackers or encroacher in the paddy field of the accused persons.
15. I have already discussed and found that there is no evidence of eye witness. Although P.W-2,3 and 4 were projected as eye witnesses, they are in fact, not eye witnesses. The real eye witness was Bhadreswar Gogoi , father of the deceased. Unfortunate the aforesaid Bhadreswar Gogoi died before he could give his evidence before the trial court.
16. As per the evidence of the Medical officer, as recorded above, the deceased received as many as 3 serious injuries on his person 7 which were caused by sharp cutting instruments. Injuries No. 2 and 3 as per the medical individual, are sufficient to cause death of a person in the ordinary course of nature.
17. The learned trial court disbelieved the defence story that when Badreswar, father of the deceased dealt dao blows on the accused, the blow landed on his son Tankeswar Gogoi causing death to him. This story of the defence could be found in the suggestion put by defence counsel to P.W-4 Smt. Junmoni Gogoi. In a scuffle, the blow aimed at the opposite party may miss and fall on the person of the same party.Normally a blow may fail or miss in such scuffle but in the present case, the defence story cannot be accepted in asmuch as three dao blows fell on and hit the vital parts of the deceased. The father of the deceased might have caused one blow on his son accidently but he would not have given the second or 3rd blows on him.
18. The defence has also put up a case of private defence. Dao blows in question, according to the accused persons, were given in the course of self defence when the deceased and his father encroached upon their paddy field and engaged in scuffle. The learned trial court considered this issue and disbelieved the same. I have no different opinion to offer in this regard inasmuch as there is a clear view that accused persons exceeded the limit of self defence by causing as many as three serious injuries on the person of the deceased. Moreover, there is no evidence that the accused persons received any injury on their person due to attack from the deceased and his father. There is also no evidence that the deceased and his father carried sharp weapons like dao/ khukhuri etc. while entering the paddy field of the accused persons.
19. The circumstantial evidence is that the deceased and his father entered into the paddy field and they engaged themselves in scuffle. There is no third party in this scuffle and therefore, there is no possibility of causing injuries by any other persons except the accused persons. In such circumstances, on evidence of evidence on record, in my considered view, the court cannot entertain two possible views out of which one could be taken against the accused.
820. It is an admitted fact that two co-accused Manu Gogoi and Son Gogoi, were declared absconders and they have not faced the trial.Out of four accused, Moina Gogoi and Pakaria Gogoi stood the trial. The later has been acquitted for want of cogent materials against him. The present accused/appellant has been convicted the sentenced on the basis of same materials and evidence on record . It is to be noted that no charge has been framed against the accused persons U/S 34 IPC while framing the charge by the learned trial court and thereby no group liability has been brought against the accused persons to award conviction and sentence. There being no charge framed U/S 34 IPC, in my considered view, the present accused / appellant alone cannot be convicted unless the prosecution adduces conjoint and reliable evidence against him. Absconders having not been booked and produced before the justice, it would be against the interest of justice if the present appellant alone is punished. Who knows that , if the absconders face the trial, this court could be found responsible and guilty for the death of the deceased and in that case the appellant would be found innocent.
21. In absence of charge U/S 34 IPC, the appellant cannot be held guilty only on the ground of his being a member of the group although his presence at the place of occurrence has been proved by the prosecution. Here in this case, of course, the present appellant's presence at the place of occurrence and at the relevant time has been proved and he could well be convicted, if the charge was brought against all the accused persons U/S 34 IPC along with the original/main charges and proved by the prosecution. The law permits conviction and sentence of a member of the group without his overt action provided a charge is added or framed under Section 34 IPC. His mere presence with common intention is enough for conviction. The prosecution while proving the presence of the appellant, did not make any attempt to prove existence of common intention, either before or at the time of committing the alleged offence. The prosecution did not direct itself to hold the accused person liable for the alleged offence in aid of Section 34 IPC. The learned trial court misdirected itself in not framing charge U/S 34 IPC along with main charge.The trial court while examining the 9 convict/appellant U/S 313 Cr,PC did not put any question to get clarification from him in regard to common intention and group liability in committing the offence. It was may be for the reason that no charge was framed U/S 34 IPC. Under such circumstances, it would be a travesty of justice, if the conviction is sought to be found with the aid of Section 34 IPC.
22. Considering the facts and circumstances of the case in its entirety and settled position of law, I am unable to agree with the conviction and sentence as awarded by the learned trial court against the present convict/appellant. The accused is entitled to acquittal for want of charge U/S 34 IPC and on benefit of doubt.Accordingly, the present convict/appellant is acquitted on benefit of doubt.The impugned judgment convicting and sentencing the present accused is set aside and quashed. The appeal stands allowed. The appellant be set at liberty forthwith if his further detention is no longer required in connection with any other case.
22. I acknowlede and appreciate the legal service rendered by a young advocate as Amicus Curiae. He be paid Rs. 5000/- as his legal fee by the Assam State Legal Services Authority/.
23. Send down the LCR forthwith.
JUDGE Ad.