Gauhati High Court
Dulu Gogoi And Ors. vs State Of Assam on 7 May, 1990
Equivalent citations: 1991CRILJ199
Author: S.N. Phukan
Bench: S.N. Phukan
JUDGMENT M. Sharma, J.
1. This appeal is directed against the conviction and sentence awarded by learned Sessions Judge, Dibrugarh in Sessions Case No. 176(D)/87.
2. The five appellants namely (1) Bulu Gogol, (2) Kakati Gogoi (3) Girin Gogoi, (4) Rajani Gogoi and (5) Gutibor Gogoi faced the trial under Section 302/34 I.P.C. and learned Sessions Judge found accused appellants guilty of the said Sections and convicted and sentenced them to undergo life imprisonment. Hence this present appeal.
3. On 21-6-86 one Samadhar Chetia filed an ejahar against the five accused appellants and one Bhakat Gogoi stating that one Jagne-swar Chetia through Maneswar Phukan informed that his son Shri Haren Chetia was assaulted by dao and left in a drain at the southern boundary of Maud Tea Estate. He came to the place of occurrence with some villagers and in the place of occurrence he found his son Haren was lying injured condition. They immediately shifted him to the hospital. The injured told the names of the accused persons and after that the injured died on his way to hospital. The defence version is total denial. In the trial one of the accused Bhakat was acquitted on benefit of doubt.
4. We have heard Mr. A. R. Banerjee, learned counsel for the appellants and Mr. D. Goswami, learned Public Prosecutor for the State.
5. Mr. Banerjee, learned counsel for the appellants contented that evidence on record showed that the appellants cannot be convicted and sentenced Under Section 302 read with Section 34 I.P.C. as the trial court illegally added Section 34 without establishing any common intention for causing the offence by the appellants and that it is not a case Under Section 302 as the dying declaration of the deceased and the eye witnesses cannot be relied on to bring home the charge of murder against the appellants. Mr. Banerjee further submits that the alleged dying declaration, on the basis of which the appellants were convicted and sentenced, cannot be taken into consideration as it was based on hearsay evidence and that too are full of discrepancies, that there was no mention of eye witnesses in the FIR and investigating Officer was not told about the eye witness; therefore the prosecution story is not believable which is manipulated and improved afterwards by the prosecution. The learned counsel for the appellants further submitted, that while scrutinizing the evidence of the eye witnesses and the dying declaration of the deceased, this court has to take proper care to the reliability of the testimony of the relations of the deceased as in spite of the presence of independent witnesses in the place of occurrence they were not examined by prosecution. More so, according to him, post-mortem report and doctor's evidence clearly proved that with such injury deceased could survive for one hour and would not be able to speak. The learned counsel invited our attention to the evidence of P.W. 10 and 11 that merely because a witness is declared hostile his evidence cannot be brushed aside. On perusal of the evidence of P.W. 10 and 11, we find no evidentiary value as they totally denied the knowledge of the occurrence.
6. The learned Public Prosecutor Mr. D. Goswami submitted that prosecution established the case beyond doubt, on the evidence of the three eye witnesses and on the dying declaration of the deceased made before P.Ws. 2, 4 and before the eye witnesses. His further submission was that the P.Ws. 2, 4 and 8 though related to the deceased, their evidence can not be arded only on that ground where there were sufficient corroboration with the other prosecution witnesses.
7. The prosecution tried to establish the case on the basis of the three eye witnesses. P.Ws. 5, 6, 7 and the dying declaration of the deceased made before the three eye witnesses and P.Ws. 2 and 4. The P.Ws. 5, 6 and 7 were the garden Chowkidars at the relevant time, claimed to have seen the accused persons engaged in assaulting the deceased with dao. All these eye witnesses corroborated each other in their depositions that while they were on duty together in the garden at the relevant time, they heard cries and on running towards that direction, saw the accused appellants surrounding the deceased hacked him with daos. On being questioned, the accused persons rushed towards them and they fled away and informed P.W. 3 Moneswar and other villegers. P.Ws. 6 and 7 elaborated the act of hacking by the accused persons but P.W. 5 mentioned that the accused persons were armed with arrows which the defence counsel found the vital contradiction on reliability of the evidence of the eye witnesses. In our view that contradiction is very minor and on consideration of the whole evidence of the other two eye witnesses, corroborated with full particulars, we are not inclined to reject his statement only on that ground. Further these eye witnesses categorically stated unanimously that the deceased though in a sinking condition could speak clearly while he was carried in a bamboo chang (stretcher-- to hospital and he disclosed the names of the accused persons and died on the way. Moreover all the accused persons were known to these eye witnesses whose village is only one and half miles away from their village and the place of occurrence and distance therefrom is satisfactorily accounted for their presence in the place of occurrence and there is no enimity between the accused and the eye witnesses. In view of the above discussion we accept their evidence substantially true.
8. Another aspect of the prosecution case i.e. the dying declaration of the deceased has to be examined, as the learned counsel for the appellants assailed this as unreliable in view of the relationship of the P.Ws. 2 and 4 who are the brothers. P.W. 2 Sumadhar is the father and P.W. 4 Anandi is the paternal uncle of the deceased. The evidence of the P.W. 2 is that immediately after receiving the information he reached the spot on a bicycle before the deceased was carried to hospital. Apparently from the evidence of the eye witnesses the deceased was in a condition to speak when he was carried on the bamboo chang (stretcher) and died on the way. P.W. 4 Ananda came to the place of occurrence on a bicycle after receiving information from the mother of the deceased. On being questioned, the deceased disclosed the names of the accused persons. The reliability of evidence of the relations of the deceased cannot be brushed aside if it corroborates with the other witnesses particularly the eye witnesses. Therefore the evidence of P.Ws. 2 and 4 merits acceptance in view of the corroboration with the eye witnesses.
9. Another submission of the learned counsel for the appellants was that the Section 34 I.P.C. can not be added on the facts and circumstances of the case, and as the P.W. 2 stated about some dispute between the assailants and the deceased, appellants' case cannot apparently come Under Section 302 I.P.C. But except the P.W. 2 no witnesses mentioned about any dispute between the parties. On perusal of the depositions of P.W. 2, and more particularly P.W. 10 Jagneswar who were declared hostile, we find no evidence to corroborate with that of the other witnesses on the facts and circumstances of the dispute. Regarding the dispute P.W. 2 stated that "At the time of occurrence I was at home. Moneswar, P.W. 3 told me that a quarrel was on beside the field at Maud Tea Estate and that my son Horen's future was uncertain.......". P.W. 10 stated "It is not true that I told the police like this, 'on 21-6-86 my wife told me there was dispute in front of our residence'...". The evidence of P.W. 1 Smt Niru, the wife of the Jogeneswar P.W. 10, who was also declared hostile, did not say anything to support this aspect pointed out by the counsel for the appellants. We find nothing in record any suggestion on any question put to the prosecution to support the fact of any quarrel between the deceased and the assailants; but only tried to make Moneswar P.W. 3 unreliable as he was involved in the murder of one Jugal who was the associate of the accused persons, which, in our view, is quite remote and unsuccessful attempt to thwart the prosecution case. The evidence of P.W. 3 has little impact as he stated that he did not see the occurrence and he arrived at the place of occurrence after Haren's death. But he stated that he informed deceased's father on being informed by the three eye witnesses.
10. In view of the above discussions we do not accept the story of mutual dispute between the deceased and the assailants. Moreover it was evident that at the time of occurrence the deceased was alone and he was surrounded by the accused persons with dao in hands and keeping him in the middle cut him.
11. It is also evident that the three eye witnesses could not say who inflicted what injury on the person of the deceased. There were 10 cut injuries on the person of the deceased and that the evidence accepted by us could not ascribe any particular stab injury to any one of the accused specifically, but it is evident that concerted action of the accused persons made those ten injuries and they are therefore held equally responsible for the offence. The learned counsel for the appellants further submitted that dying declaration of the deceased was unbelievable as the Doctor, P.W. 1 clearly opined that after receiving such injuries the deceased would survive only one hour and might not be able to talk as he was in a state of shock due to heavy loss of blood from the injuries. But we have seen that in the post mortem report the deceased was referred as 'stout build male' and out of all the injuries one injury was fatal. On perusal of the record, we are convinced that the FIR which was filed within reasonable time after the death of the deceased, who disclosed the names of the appellants as the assailants were given by the deceased immediately after the occurrence. Evidence of the doctor can not be held conclusive regarding the ability of the deceased as he was a 'stout' man and could live one hour after receiving such injuries. In Somappa v. State of Mysore, 1979 Cri LJ 1358 : (AIR 1979 SC 1831) where the Apex Court held that the opinion of the doctor can not be conclusive on question of ability of deceased to talk immediately after occurrence. We find that the eye witnesses unanimously stated that they saw the accused appellants hacking Haren with daos in hand and being chased by the appellants they retreated and after returning they were told by the deceased that he was hacked by the accused persons. Moreover, the accused persons dragged the deceased and threw him inside the Nala after murderous assault.
12. In view of the above discussions we find the evidence of the eye witnesses P.Ws. 5, 6 and 7 are reliable and sufficient to establish the prosecution case without relying the evidence of P.Ws. 2 and 4 and therefore the submission of the appellants' counsel that other independent witnesses were not examined to prove the dying declaration, does not hold good. The weapons carried by them, the relationship with each other as co-villagers, their knowledge about the gravity of the consequence, and concerted conduct in the wake of murder and subsequent behaviour coupled with 10 injuries on the person of the deceased are sufficient to prove the intention of the accused appellants to cause the death of the deceased and as a consequence of their action in our view, the deceased died. Also we reject the contention of the learned counsel that the eye witnesses did not see or know whom the accused persons were hacking or who gave what blow and that as there was only one fatal blow for which all of them cannot be held guilty of Section 302/34 I.P.C. We are convinced, on the evidence on record that the participation of the appellants went beyond exhibiting mere intention to assault. It is not only show the knowledge of likely-hood of hurt of the victim, but they were aware of their concerted action's consequence the death. In our view the case of the appellants does not fall under any of the exceptions so that it can be converted to Section 304 Part-I as submitted by the learned counsel for the appellants.
13. In view of the reasons stated above, we do not find any merit in the present appeal. Accordingly, we dismiss the appeal and uphold the conviction and sentence Under Section 302/34 I.P.C. given by the Sessions Judge.
S.N. Phukan, J.
14. I agree.