Gauhati High Court
Crl.A./148/2018 on 24 February, 2020
Author: Hk Sarma
Bench: Suman Shyam, Hitesh Kumar Sarma
Page No.# 1/27
GAHC010072242018
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM: NAGALAND: MIZORAM & ARUNACHAL PRADESH)
Crl.A. No.148/2018
1. Putul Dutta,
Son of Late Lalit Ch. Dutta,
Village- Joysagar, Sopun Nagar,
P.O.-Rudrasagar, P.S.- Sivasagar,
District- Sivasagar, Assam,
Pin- 785665 (In Jail.)
2. Monoranjan Dutta,
Son of Late Lalit Ch. Dutta,
Village- Joysagar, Sopun Nagar,
P.O.-Rudrasagar, P.S.- Sivasagar,
District- Sivasagar, Assam,
Pin- 785665 (In Jail.)
----- Appellants
- VERSUS -
1. State of Assam,
Represented by the Public Prosecutor to the State of Assam.
2. Mridul Chandra Dutta,
Son of Sri Sunanda Chandra Dutta,
Village- Salaguri Pahigaon,
P.O.- Kalugaon, P.S.- Sivasagar,
District- Sivasagar, Assam,
Pin- 785665
----- Respondents
Page No.# 2/27 BEFORE Hon'ble Mr. Justice Suman Shyam Hon'ble Mr. Justice Hitesh Kumar Sarma Advocate for the Appellants : Mr. MU Mondal.
Advocate for Respondent No. 1 : Mr. RJ Baruah, learned Addl. PP.
Date of hearing : 24th of February, 2020.
Date of Judgment : 5th of March, 2020.
JUDGMENT & ORDER (CAV)
(HK Sarma, J)
The appellants have preferred this appeal against the judgment and order, dated 28.02.2018, in Sessions Case No. 169(S-S)/2009, passed by the learned Additional Sessions Judge, Sivasagar, convicting and sentencing them to life imprisonment with a fine of Rs 30,000/- each under Sections 302/34 of the IPC and in default of payment of fine, rigorous imprisonment for 6 (six) months, imprisonment for 10 (ten) years with a fine of Rs. 25,000/- each under Sections 307/34 of the IPC and in default of payment of fine, rigorous imprisonment for 4 (four) months, imprisonment for 7 (seven) years with a fine of Rs. 20,000/- each under Sections 326/34 of the IPC and in default of payment of fine, rigorous imprisonment for 3 (three) month and imprisonment for 5 (five) years with a fine of Rs. 10,000/- each under Sections 457/34 of the IPC and in default of payment of fine, rigorous imprisonment for 3 (three) months each. All the aforesaid sentences were ordered to run concurrently.
Page No.# 3/27
2. The prosecution case, as gathered from the materials on record, is that on 03.11.2003, at about 11:00 - 11:30 p.m., the appellant Putul Dutta (herein after referred to as the A-1) entered into a Pharmacy viz "Poly Drug House" situated in the campus of Sivasagar Civil Hospital and hacked Manash Dutta and Diganta Dihingia, who were the employees of Poly Drug House. The injured Manash Dutta and Diganta Dihingia were treated at AMCH, Dibrugarh after initial treatment at the Civil Hospital situated at Joysagar, Sivasagar. The injured Manash Dutta died while under treatment in the AMCH, Dibrugarh. The injured Diganta Dihingia also sustained cut injuries on various parts of his body and even his right middle finger got amputated. The A-1 hacked both the injured due to which the aforesaid Manash Dutta died. The appellant Monoranjan Dutta (hereinafter referred to as the A-2) also participated in the occurrence.
3. On receipt of the FIR lodged by Mridul Ch. Dutta (PW1), the owner of the aforesaid Poly Drug House, through the Jaysagar Police Outpost, the Sivasagar Police Station registered Case No. 404/2003 and on completion of investigation, laid charge-sheet against both the appellants under Sections 457/326/307/302/34 of the IPC. The appellants pleaded innocence to the charges under Sections 457/326/307/302/34 of the IPC.
4. The prosecution examined 21 (twenty one) witnesses.
5. After closure of the prosecution evidence, statements of the appellants were recorded under Section 313 of the Cr.PC and in their such statements they denied the accusations. The defense also declined to adduce evidence.
6. We have perused the records of the trial court, including the impugned judgment. We have also heard Mr. MU Mondal, learned counsel for the appellants as well as Mr. RJ Baruah, Page No.# 4/27 learned Additional Public Prosecutor, appearing for the State.
7. We, now examine the medical evidence to ascertain the nature of death of the deceased Manash Dutta as well as the injuries and the nature thereof, in respect of the injured Diganta Dihingia.
8. The evidence of PW19, Dr. Hemanta Kumar Mahanta, is that on 04.11.2003, he performed the post-mortem examination on the dead body of the deceased Manash Dutta. The relevant portion of his report, vide Ext. 10, is as follows:-
"I. EXTERNAL APPEARANCE
1. Condition of subject stout emaciated, decomposed etc:
One male body of average built wearing one blue coloured sorts and jangia only, surgical bandage around the head, left upper limb, right arm, right thumb- all blood stained. Eyes- closed, cornea hazy. Rigor mortis present in all limbs. PM phypostasis present on back (not fixed). Body warm internally.
2. Wounds- position, and character:
1) Incised wound 7 cm. x 2 cms. bone deep on back of left elbow. The lower end of humerus is incised and separated.
2) Incised wound 15 cm. x 0.2 cms. x muscle deep on front of right arm, upper part, right shoulder and front of chest with 8 stitches.
3) Incised wound 2 cm. x 0.2 cms. x bone deep on back of right thumb on root.
4) Incised wound 9 cm. x 0.5 cm. x bone deep on right side of forehead and temple placed horizontally on front of right ear.
5) Incised wound 15 cm. long with 15 stitches on left side of head over temporal and occipital area from left ear to occipital (bone deep).
6) Incised wound 17 cm. long with 14 stitches on back of left side of chest over scapula.
7) Incised wound 4 cm. long with 4 stitches on upper part of left shoulder behind clavicle.
8) Incised wound 6 cm. long with 4 stitches over left shoulder over the acromion process.
9) Incised wound 9 cm. long with 3 stitches on back of left arm upper part.
10) Incised wound 3 cm. x 1 cm. muscle deep on back of left arm middle part.
3. Bruise Position size and nature:
4. Mark of ligature on neck dissection, etc. : No ligature mark.
On dissection- Healthy.
II- CRANUM AND SPINAL CANAL
1. Scalp, skull, vertebrae : Scalp- Incised no. (4) & (5).
Page No.# 5/27 Skull- (11) the left temporal and occipital bone incised 8 x 0.3 cms. underneath injury no. (5).
Vertebrae- Healthy.
2. Membrane : (12) incised underneath no. (11) Subdural hemorrhage present on left side.
3. Brain and spinal cord : Brain - Incised 4 x 0.3 cms. x 1 cm. left on a tempro-occipital area. Sp. cord- Not examined.
Injury no. (5), (11), (12), (13) are caused by single impact.
III- THORAX
1. Walis ribs and cartilages : Walls - Incised. Others- Healthy.
2. Pleurae : Healthy
3. Laryax and trach are : Healthy
4. Right lung : Pale
5. Left lung : Pale
6. Pericar (dium) : Healthy
7. Heart : Healthy, chambers are empty. Lft. 290 grms.
8. Vessels : Healthy IV- ABDOMEN
1. Walls : Healthy
2. Peritonoum : Healthy
3. Mouth, pharynx, oesophagus : Pale
4. Stomach and its contents : Pale, contains semi-digested rice meal 350ml.
No suspicious smell.
5. Small intestine and its contents: pale, contains digested fluidy material.
6. Large intestine and its contents: Pale, contains faecal matter and gas.
7. Liver : Pale
8. Spleen : Pale
9. Kidneys : Pale
10. Bladder : Pale, empty.
11. Organs of generation external and internal: All healthy."
The opinion of this witness is that the death was due to shock and haemorrhage resulting from the injuries sustained. All the injuries were antemortem caused by heavy sharp-cutting weapon and were homicidal in nature.
Page No.# 6/27
9. The nature of the injuries sustained by the deceased and the opinion of PW10, as reproduced above, clearly show that the deceased Manash Dutta died a homicidal death.
10. So far the injuries sustained by Diganta Dihingia is concerned, the evidence of Dr. Ranjit Kr. Hazarika, examined as PW16, is that he had examined him and found the following injuries, vide Ext. 8:
"i. Incised wound 6" x ¼ " x 1" over the occipital parietal region. ii. Incised wound 2" x ¼ " x ¼ " over the temperal region of the left. iii. Incised wound 3" x ¼ " x ¼ " over the sub-mendibular region. iv. Total amputation of the right-middle and ring finger."
He also deposed that the injured was referred to AMCH, Dibrugarh on the date of admission itself.
11. The evidence of PW15, i.e., the injured Diganta Dihingia is to the effect that the A-1 had inflicted cut injuries on his person as well as on the person of the deceased Manash Dutta. He deposed that 3 (three) of his fingers got cut. He became senseless and regained his senses in the AMCH, Dibrugarh only. He also deposed that he was also hacked on his head by the A-1. The nature of the injuries sustained by this injured, PW15 has not been specifically mentioned in Ext. 8. But, the fact remains that he sustained cut injuries and the doctor, PW16, found the cut injuries on his person as reproduced above from the report, Ext.
8.
12. Now let us examine the evidence on record to find out as to whether the appellants had committed the offences alleged.
13. The evidence of PW1/informant is to the effect that the deceased and the injured were the salesman of Poly Drug House owned by him. He got the information about the Page No.# 7/27 occurrence at about 11:30 p.m. from one Ranjit Borthakur (PW6), another salesman of his shop, over phone, that the deceased and the injured were hacked by the appellants inside the shop. He came to the place of occurrence with his brother, Mintu Dutta (PW12) and Mantu Dutta. In the meantime, the injured were shifted to the hospital. He went there and saw cut injuries on the head of Manash and found 3 (three) fingers of the right hand of Diganta Dihingia cut and severed. Both the injured were referred to AMCH, Dibrugarh. The police visited his shop and found the aforesaid 3 (three) chopped fingers of Diganta Dihingia lying on his bed and there was blood on his bed. Police seized the three fingers, vide Ext. 1, in his presence. Then he lodged the FIR vide Ext. 3. Thereafter, on the next date, i.e. on 04.11.2003, Manash Dutta succumbed to his injuries.
In cross-examination, he has admitted that he did not witness the occurrence and he came immediately after the occurrence on receipt of the information over phone. Police recorded his statement. The PW6 (Ranjit) told him that the appellants came to the place of occurrence in a Maruti Car. He has further deposed in his cross-examination that he was told by Ranjit Borthakur (PW6) that the A-1 had inflicted cut injuries and that the A-2 came driving a vehicle.
14. The PW2, Narayan Das, deposed that while he was sleeping inside his shop, he came out after hearing hue and cry outside and saw a crowd. One person, hailing from Mangarahaat, told him pointing to the A-1 that he had hacked 2 (two) boys of the pharmacy. Thereafter, he went to the police outpost situated inside the hospital campus and found the A-1 waiting there with a blood stained 'mit' lying near him which was seized by the police vide Ext. 4. This witness was declared hostile and his attention was drawn to his statement made before the Investigating Police Officer that "the appellant was standing near the gate Page No.# 8/27 brandishing the dao. When a large number of people assembled and shouted 'catch him' 'catch him', Putul proceeded towards OP. We all encircled him as directed by the police, to prevent him from escaping." Although he denied making such statement before the police, yet, the Investigating Police Officer, examined as PW21, has confirmed his such statement on material, particular that he was waving a dao and waiting near the gate and a crowd had gheraoed him and when the crowd went to catch him, he went to the police outpost and that the crowd had encircled him so that he could not flee.
15. The PW3, Upen Gogoi, is a witness to the seizure of blood stained vests worn by the deceased Manash Dutta and the injured Diganta Dihingia, vide Exts. 3 and 5 respectively, which, however, could not be identified by him in the court. He has not implicated the appellants with the commission of the alleged offence.
16. The PW4 is, Sontosh Bora. At the time of the occurrence, he came out of his house after noticing the commotion and learnt that something had happened in the pharmacy. He has a pharmacy in the campus of the Civil Hospital. On his arrival, he found the deceased Manash Dutta and injured Diganta Dihingia were lying in the casualty ward of the hospital. He did not see the appellants in the hospital campus. This witness was also declared hostile and subjected to cross-examination by the prosecution.
In his cross-examination, the prosecution had drawn his attention to his statement made before the police that "at 11:30 p.m., I heard hue and cry. At that time I was retiring to bed inside the shop. On hearing hue and cry I came out and saw the person Sri Putul Dtta by name brandishing a dao and shouting---'I have cut a person. If anyone comes, I will cut him too' and then proceeded towards the police. Seeing his dao, I retreated. Then all the shop Page No.# 9/27 keepers came out, took lathi and started shouting. Putul's brother, Manoranjan by name fled by a blue car. Before fleeing he shouted 'brother, hurry, hurry!' asking his brother to board the car. Then, when the rest of people of the hospital raised hue and cry, he fled therefrom. Thereafter, the boys gheraoed Putul in the room of police in the hospital. I immediately came to 'Poly Drugs' and brought Diganta and Manas to hospital with the help of some people."
Although the PW4 denied to have made such statement before the police, yet the Investigating Police Officer (examined as PW21) has deposed as to the statement made before him by this witness and it appears therefrom that on material particulars, the Investigating Police Officer has confirmed that PW4 had made such statement.
This witness is a witness to the seizure of the Maruti Car involved in the offence seized vide Ext. 6 wherein he has put his signature 6(1).
The defence declined to cross-examine this witness.
17. The PW5, Anjan Gogoi, deposed that he worked at "Medicine Corner" situated in front of Sivasagar Civil Hospital. The incident had taken place at about 11:00 p.m., on a day, in the year 2003 while he was sleeping inside his shop. He came out of his shop after hearing hue and cry and heard people saying that the A-1 had hacked deceased Manash. He had seen the people taking both the injured to the hospital. He also went there and saw them. The police brought a dao from the police outpost situated at the hospital campus, and seized the same vide Ext. 4 wherein he had put his signature as Ext. 4(2). He exhibited the seized dao as Material Ext. 3. This witness was declared hostile and cross-examined by the prosecution. His attention was drawn to his previous statement made before the police that "On coming out I saw the boy Putul by name proceeding towards the OP situated inside the Page No.# 10/27 hospital campus brandishing a dao and shouting 'I have cut a person and will also cut whoever comes to me'. Meanwhile, a large number of people gathered there and shouted, 'Catch, catch' whereupon Manoranjan, brother of Putul fled by a vehicle which Putul used to drive. The crowd chased him too. Putul also tried to escape but since the crowd, armed with lathi, surrounded him, he entered the OP. We kept him gheraoed there. Police seized the blood stained dao from Putul". Although PW5 denied having made such statement before the police, yet, the prosecution has proved that he had made such statement through the Investigating Police Officer (PW21). It has come out from the evidence of the Investigating Police Officer that he (PW5) had stated before police that he had seen the appellant Putul with a dao in his hand saying that he had cut a person and if anyone comes, he would cut him also and then went towards the police outpost. Thereafter, a huge crowd gathered and when they raised alarm, Putul's brother fled away in the car. The appellant Putul was encircled by the people. Then he had entered the room of the police. Thereafter, police seized the dao. Such statement of the Investigating Police Officer (PW21) makes it clearly appear that the previous statement of this witness has been proved by him on material particulars.
18. The PW6 is Sri Ranjit Barthakur. He deposed that he was an employee of the pharmacy under the name and style 'Poly Drugs' where the deceased Manash Dutta and the injured Diganta Dihingia used to work as employees. He deposed that in the morning of the day of incident, a vehicle carrying alcohol met with an accident and the injured Diganta Dihingia brought some bottles containing alcohol and consumed the same. In the night, while this witness was sleeping inside the said pharmacy, he heard altercation between the A-1 and the injured Diganta Dihingia and he asked them as to what for they were arguing while he was still on bed. He also asked them to stop quarrelling. Thereafter, the A-1 uttered some Page No.# 11/27 filthy words to the injured Diganta Dihingia and left for somewhere saying that he would come back. Then, this witness left. The deceased Manash Dutta and the injured Diganta Dihingia used to sleep on a bed behind the almirah in the pharmacy. After 20 - 30 minutes, thereafter, the A-1 came back and enquired about Diganta Dihingia who, however, did not come out. This witness heard sounds which seem to him that the A-1 had dealt blows with lathi inside the shop. Meanwhile, the customers coming to the pharmacy said that somebody has been cut. Then this witness got up from bed and saw that the deceased Manash Dutta and injured Diganta Dihingia were lying on the bed and found cut injuries on the fingers and head of the injured Diganta Dihingia. He had also seen injuries on the back of the deceased Manash. He took both of them to the Civil Hospital wherefrom they were referred to AMCH, Dibrugarh. The deceased Manash succumbed to his injuries at about 7:00 a.m. in the next morning. Police seized a vest from the injured Diganta Dihingia in the hospital. Ext. 5 is the seizure list. This witness was declared hostile and cross-examined by the prosecution. In such cross-examination, he denied having made statement to the police to the effect that " I saw Putul Dutta randomly hacking Diganta and Manas in head, neck, arms etc. with dao. Since I could not gather courage to come forward, I came out through the back door and came to the front along the raised platform made of bamboo and across 'Krishna Hotel' and raised hue and cry. Then a large number of people assembled. Then Putul proceeded towards the gate shouting, "I have cut certain persons. Come close to me if you dare." At that time, Manoranjan, brother of Putul, who was in the vehicle said, "Brother, Hurry! Hurry!" asking him to board the vehicle. Meanwhile the people proceeded towards the vehicle and Manoranjan fled by the vehicle. Since the people gathered there locking the gate, Putul too entered the OP in the hospital".
Page No.# 12/27 In his cross-examination by the defense, this witness, inter alia, deposed that he woke up on hearing commotion at the front of the pharmacy and found the injured duo lying on the bed. He has expressed his ignorance as to what for the quarrel had taken place and the incident happened. He has also denied that he did not state to the police that he had asked the injured Diganta Dihingia and the A-1 as to what for they were quarrelling and then had retired to bed advising them not to quarrel.
The prosecution has proved the statement made by PW6 through the Investigating Police Officer (PW21) that he had seen the A-1 assaulting the deceased Manash Dutta and injured Diganta Dihingia in the neck, head, arms, etc and that he did not gather courage to come forward and rather he had escaped from behind and had raised alarm. Thereafter a huge crowd came there. The A-1 waved the dao and said that he had cut a person. At that time, the A-2 came in a car and asked the A-1 to come inside the car. But, when the crowd came near the car, the A-2 left the place and the A-1 locked the gate and went towards the room of the police. So, it appears that on material particulars, the previous statement of PW6 has been proved by the PW21 (Investigating Police Officer).
19. The evidence of PW7, Dahrmendra Bora is not relevant as he has expressed ignorance about the entire occurrence.
20. The PW8, Nice Ali, deposed that after hearing hue and cry, he came out of his shop and found that injured Diganta and deceased Manash were taken to Sivsagar Civil Hospital. Later on, he heard that the A-1 had appeared in the police outpost situated in the Civil Hospital campus. Police had taken his signature as witness in Ext. 6 by which the Maruti Car, involved in the occurrence, was seized by PW21. This witness was declared hostile and Page No.# 13/27 subjected to cross-examination by the prosecution.
In his cross-examination by the prosecution, he has denied having made statement to police that "I got up and came towards the hospital and saw Putul Datta coming from the direction of Poly Drug House with a blood stained dao in his hand shouting 'I have cut somebody. If anybody dares to come close to me, I shall cut him too'. Putul's brother Manoranjan was shouting 'Hurry! Get into the vehicle'. Then the crowd shouted and rushed towards the vehicle and Manoranjan fled by the car. The public chased the car and caught Manoranjan with the vehicle. Police seized the car with its glasses broken. I put my signature on the seizure list." But, the Investigating Police Officer (PW21) has proved such previous statement of the PW8 as he deposed that the PW8 had made statement, as indicated in his cross-examination by the prosecution.
21. The PW9, Paresh Saikia, deposed that at the time of occurrence, while he came out hearing hue and cry, he had seen the A-1 coming out of 'Poly Drug" with blood stained dao in his hand. The A-1 was shouting that he had hacked certain persons. Then, the crowd chased the A-1 and handed him over to the police. On coming to 'Poly Drug', he found Manash and Diganta were lying there in a injured condition. He had also noticed blood scattered on the walls, roof/ceiling and all over the room. He had also seen cut injuries on the head and hands of the deceased Manash and cut injuries on the hand and arms of the injured Diganta. They the were taken to AMCH, Dibrugarh for treatment. But, Manash Dutta succumbed to his injuries at Dibrugarh.
In his cross-examination, he has adhered to his statement made in his examination-in-chief that he had seen the A-1 coming of 'Poly Drug' and cut injuries on the Page No.# 14/27 persons Manash and Diganta. His evidence that he had seen the A-1 with a blood stained dao is a fact not disputed in his cross-examination by the defense.
22. The PW10, Hemanta Phukan, deposed that he came to know from others that the appellants had hacked Manash and Diganta and that both of them were taken to Dibrugarh for treatment. It does not appear from his evidence that he has implicated the appellants. He is a witness to the inquest of the dead body vide Ext. 8. So the evidence of this witness does not appear to be relevant.
23. The PW11 is Sri. Krishna Chetia. At the time of occurrence while he came out of his hotel, he had seen a large number of people gathered outside. He came to know that the A-1 haD caused injuries to the deceased Manash and injured Diganta by hacking them. He was declared hostile and subjected to cross-examination. In cross-examination by the prosecution, his attention was drawn to his previous statement to police to the effect that "On returning I saw Putul Dutta coming out from the Poly Drugs, brandishing a dao and then a hue and cry was raised whereupon a crowd gathered there. Then Putul Dutta, while shouting - I have cut certain person. Come to me if anybody dares, proceeded towards the gate. Meanwhile, Putul's brother Manoranjan called Putul Dutta from the Maruti car which Putul used to drive, "Brother, come fast". Then the crowd chased the car and he (Manoranjan) fled with the car from therefrom. Though Putul also intended to flee but he went towards the O.P. Police and the crowd surrounded him there."
Although the PW11 denied having made such statement to the police yet the prosecution has been able to prove his such statement through the Investigating Police Officer (PW21). The Investigating Police Officer deposed that he had made such statement Page No.# 15/27 and the contents of such statement has also been brought in his evidence.
24. The PW12 is Mintu Dutta. He deposed that the deceased Manash Dutta and injured Diganta Dihingia were his employees in the pharmacy, namely, 'Poly Drug'. He used to leave the pharmacy at about 8:00 - 9:00 p.m. every day for his residence. The incident occurred at about 10:30 p.m. While he was sleeping at his house, on receipt information over phone that the A-1 had hacked Manash and Diganta who were at his shop and that people had chased him and he had entered in the police outpost in the Civil Hospital campus itself. He had intercepted the maruti car being driven in a high speed by the A-2 by a Tata Sumo vehicle. His further evidence is that A-2 was apprehended by him while trying to flee. Then, he went to the hospital and found there Manash and Diganta were lying in injured state. Thereafter, they were taken to Dibrugarh for treatment, and in the next morning, Manash succumbed to his injuries and Diganta had to stay in the hospital for about a month.
This witness, in his cross-examination, admitted that he came to the place of occurrence after half an hour of the incident. After apprehending A-2 in the Maruti Car, he handed over him to Jaysagar Police Outpost. He denied that the A-1 had not hacked Manash and Diganta and that he did not apprehended and handed over A-2 to police
25. The evidence of PW13, Biren Baruah, is to the effect that the place of occurrence, i.e. 'Poly Drug' is situated near his pharmacy. At the time of the incident, hearing hue and cry, he came out and found a large number of people gathered there and A-1 was proceeding towards the police outpost with a dao in his hand. He also noticed Manash and Diganta lying in a pool of blood inside the 'Poly Drug' and took both the injured to the Civil Hospital and therefrom to AMCH, Dibrugarh. In the next morning, Manash succumbed to his injuries and Page No.# 16/27 Diganta had to stay in the hospital for about a month.
During his cross-examination, the defense could not put any dent in his evidence that he had seen both the injured persons lying in an injured state in the 'Poly Drug' and that he has seen the A-1 proceeding towards the police outpost with a dao in his hand.
26. The PW14, Mantu Gowala, who was an employee in another pharmacy near the place of occurrence, deposed that he had came out after hearing hue and cry. Then he had seen the A-1 sitting in the police outpost and had also heard from others that the A-1 had hacked Manash and Diganta. This witness was declared hostile by the prosecution.
In his cross-examination by the prosecution, he denied having made statement to the police to the effect that "At about 11:30 p.m. having heard a hue and cry 'Hacked! Hacked!' I immediately came out and saw Putul Dutta proceeding towards the gate with a blood stained dao in his hand and then I along with Binod went to the Poly Drugs situated adjacently and saw Manas and Diganta lying in pool of blood on the bed in moribund state. I also noticed several cuts caused with dao on the person of both of them. I along with the nearby persons immediately took both of them to hospital". But, the Investigating Police Officer (PW21) who had recorded the statement of this witness deposed that PW14 had stated before him that at about 11:30 p.m. he heard a hue and cry "katilay" and on waking up say Putul going towards the gate carrying a blood soaked dao. Then, I and Binod went to Poly Drugs and saw Manash and Diganta lying in a blood soaked about dead condition in the bed. He also stated that he saw injuries caused by dao in both the person and thereafter they were taken to Hospital.
27. PW17, Suren Neog, is a Constable who was serving at the Jaysagar Police Outpost Page No.# 17/27 at the relevant time of occurrence. He deposed that at about 11:00 p.m., on the date of occurrence, the A-1 had rushed to the police outpost with a blood stained dao in his hand and said that he had hacked two persons in the pharmacy and that he should be protected. This witness then informed the matter to the In-charge of the police outpost over phone. Thereafter, the dao was seized by the Investigating Police Officer from the possession of the A-1 vide Ext. 4. This also exhibited the dao in the court as M.Ext. 1.
In his cross-examination, this witness deposed that he had come to know about the occurrence while the A-1 had come to the police outpost shouting. He also deposed that a crowd had gheraoed the police outpost from outside. This witness also denied the defense suggestion that the A-1 did not come to the police outpost with a dao in his hand.
28. The PW18, Mrs. Renu Borah Handique, is a Senior Scientific Assistant in the Serelogy Division, F.S.L., Guwahati. She had examined the vest (ganji) and one wooden handled dao with suspected blood stains and found human blood in both the articles. She had given her report vide Ext.9. She has also denied that the blood found in the articles were not human blood.
29. The PW20, A.S.I. of Police, Sri Abhimanya Das had performed the inquest of the dead body of the deceased, Manash Dutta vide Ext. 7 and sent the dead body for post- mortem examination. Defense could not elicit anything from his cross-examination to discredit his evidence.
30. The PW21, Sri Rajiv Kr. Saikia, is the Investigating Police Officer. He is the In-charge of Joysagar Police Outpost. He got information from Suren Neog (PW17) that there was a fight in the Civil Hospital Pharmacy at Jaysagar and that a person had come to the police Page No.# 18/27 petrol post with a dao. Thereafter, this witness made the GD Entry, vide No. 56 dated 03.11.2003, and rushed to the place of occurrence. He found a boy having a blood soaked dao and also found that his hands were bleeding. He seized the said dao in presence of the witnesses. The A-1 was also detained by him. In the meantime, both the injured were sent to Civil Hospital. He went to the hospital and found both the injured being treated there. The injured were referred to AMCH, Dibrugarh as their injuries were critical. He also seized the blood stained vest of the injured. The A-1 was accompanied by his brother Manoranjan(A-2) in a Maruti Car. This witness apprehended A-2 and also seized the Maruti Car. As per his evidence, the appellants had confessed their guilt before him. This witness forwarded the appellants to the CRPF Sadar Police Station as the situation was not conducive for keeping them in the police outpost. He recorded the statements of the witnesses. During the investigation, the injured Manash Dutta died. After completion of investigation, charge-sheet against the appellants was laid, vide Ext. 13 by another Police Officer on the basis of investigation carried out by him. This witness has also confirmed the statement made by PWs 2, 4, 5, 6, 8, 11 and 14 before him while his attention was drawn to their previous statements implicating the appellants.
31. It appears from the evidence, reproduced above, that PW6 is one of the vital witnesses in this case. It has come out from his evidence that just before the occurrence, the A-1 had come to the pharmacy 'Poly Drug' and had some altercations with injured Diganta Dihingia. He had asked them to stop quarrelling. Then A-1 left saying that he would be coming back to Diganta Dihingia. The deceased Manash and injured Diganta were sleeping together. He had also retired to bed. About 20 - 30 minutes thereafter, the A-1 had come back and had enquired about Diganta Dihingia although Diganta did not come out. But, he Page No.# 19/27 had heard sounds which seemed to him that the A-1 was inflicting blows with lathi inside the pharmacy. Thereafter, the customers who had come to the pharmacy were heard saying that somebody had been cut. Then this witness got up and found that Manash Dutta and Diganta Dihingia were lying in an injured state. He found injuries on the fingers and hand of Diganta and also injuries on the back of Manash. He took both of them to the Civil Hospital. The evidence of PW6 is thoroughly supported by the PW15, i.e., injured Diganta Dihingia. It has come out from the evidence of PW15 that at the relevant time of occurrence, himself, PW6 and Manash Dutta were sleeping in the place of occurrence, i.e., 'Poly Drug'. He himself being the injured is an eye-witness to the occurrence. At about, 9:30 p.m., on the date of occurrence, the A-1 was making noise with filthy language infront of their pharmacy and Manash Dutta and himself had scolded A-1 and had sent him to his house. Thereafter, when they were asleep inside the pharmacy, the A-1 had dealt cut blows in his right arm. He woke up and found that A-1 had hacked them and his three fingers got cut and Manash Dutta was lying in an injured state in a pool of blood. The evidence of Ranjit Borthakur (PW6) and Diganta Dihingia (PW15/injured) is very clear to the effect that it was the A-1, who had hacked both of them, ultimately, resulting in the injuries to PW15 and death of Manash Dutta.
The eye-witness account of the PW15 is very categorical that he had seen the A-1 inflicting cut injuries to him and Manash Dutta. Such eye-witness account is reinforced by the fact appearing from the evidence of PW6 that about 20 - 30 minutes prior to the occurrence, there had taken place an altercation amongst the A-1 and the injured persons, i.e., the PW15 and the Manash. Then, the A-1 left them there saying that he would come back. Such evidence means that he had left PW15 and Manash with a threat to pay off scores.
32. The evidence of PWs 2, 4, 5, 8 and 11, as reproduced above, leaves no doubt that Page No.# 20/27 the A-1 had hacked Manash Dutta and the injured Diganta Dihingia with the seized dao and immediately thereafter he had surrendered in the police outpost with the seized dao in his hands. All these witnesses had seen the A-1 proceeding with the weapon of offence in his hands and the PWs 4, 5, 8 and 11 had also heard the A-1 shouting that he had hacked somebody. Such evidence also receives corroboration from PW10 and PW14 as they had also witnessed the A-1 proceeding with a blood stained dao in his hands.
33. On the other hand, the evidence of the PW9 is very categorical that he had seen the A-1 coming out of the place of occurrence, i.e., 'Poly Drug' with the blood stained dao in his hands. The proved previous statement of the PW11 also corroborates such evidence of PW9 as he had also seen the A-1 coming out of 'Poly Drug' after the occurrence with the weapon of offence in his hands.
34. From such evidence, it is clear that there is direct as well as circumstantial evidence. The evidence of PW15 directly implicates the A-1 with causing injuries to his person as well as deceased Manash Dutta. The evidence of PWs 2, 4, 5, 6, 8, 9,10, 11, 13 and 14 is in respect of the fact that the A-1 was seen coming from the direction of the place of occurrence, i.e., 'Poly Drug' with a blood stained dao in his hand and shouting with words indicating that he had cut somebody. Most of the aforesaid witnesses, thereafter, had seen the injured persons either at the place of occurrence itself or in the hospital with injuries. We have already found that the death of the deceased is homicidal in nature resulting from the injuries caused by heavy sharp cutting weapon. The M.Ext.1 is a sharp cutting weapon and evidently the injuries were caused on the person of the deceased as well as the injured/PW15 with M.Ext.1.
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35. So far the A-2 (Manoranjan Dutta) is concerned, the learned counsel for the appellants has submitted that the evidence on record does not implicate the A-2 in any manner. It is submitted further that the evidence available on record, even if wholly believed, it is found to have implicated the A-1 of causing the fatal injuries to deceased Manash and injuries to Diganta Dihingia and A-2 was never found present at the place of occurrence, i.e., the 'Poly Drug'. It has also been submitted by the learned counsel for the appellants that there was no meeting of minds and pre-concert and pre-meditation between the appellants. Therefore, in view of the evidence on record, Section 34 of the IPC is not applicable to hold the A-2 guilty of commission of the crime for which he is charged.
36. In view of the above submissions made by the learned counsel for the appellants, let us examine the law laid down by the Hon'ble Supreme Court in respect of applicability of Section 34 of the IPC.
37. The Supreme Court in the case of Suresh vs. State of UP, reported in (2001) 3 SCC 673, has held in paragraphs 38 and 40 has follows:-
"38. Section 34 of the Indian Penal Code recognises the principle of vicarious liability in the criminal jurisprudence. It makes a person liable for action of an offence not committed by him but by another person with whom he shared the common intention. It is a rule of evidence and does not create a substantive offence. The section gives statutory recognition to the commonsense principle that if more than two persons intentionally do a thing jointly, it is just the same as if each of them had done it individually. There is no gainsaying that a common intention pre-supposes prior concert, which requires a pre- arranged plan of the accused participating in an offence. Such a pre- concert or pre-planning may develop on the spot or during the course of commission of the offence but the crucial test is that such plan must precede the act constituting an offence. Common intention can be formed previously or in the course of occurrence and on a spur of moment. The existence of a common intention is a question of fact in each case to be proved mainly as a matter of inference from the circumstances of the case.
XXXX XXXX XXXX XXXX XXXX XXXX
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40. Participation in the crime in furtherance of the common intention cannot conceive of some independent criminal act by all accused persons, besides the ultimate criminal act because for that individual act law takes care of making such accused responsible under the other provisions of the Code. The word "act" used in Section 34 denotes a series of acts as a single act. What is required under law is that the accused persons sharing the common intention must be physically present at the scene of occurrence and be shown to not have dissauded themselves from the intended criminal act for which they shared the common intention. Culpability under Section 34 cannot be excluded by mere distance from the scene of occurrence. The presumption of constructive intention, however, has to be arrived at only when the court can, with judicial servitude, hold that the accused must have pre-conceived result that ensued in furtherance of the common intention. A Division Bench of the Patna High Court in Shatrughan Patar & Ors. v. Emperor [AIR 1919 Patna 111] held that it is only when a court with some certainty hold that a particular accused must have pre-conceived or pre-meditated the result which ensued or acted in concert with others in order to bring about that result, that Section 34 may be applied."
38. The Hon'ble Supreme Court, in the case of Balu alias Bala Subramaniam and another vs. State (UT of Pondicherry), reported in (2016) 15 SCC 471, in paragraphs 14 and 15, has laid the following principles:
"14. Common intention is seldom capable of direct proof, it is almost invariably to be inferred from proved circumstances relating to the entire conduct of all the persons and not only from the individual act actually performed. The inference to be drawn from the manner of the origin of the occurrence, the manner in which the accused arrived at the scene and the concert with which attack was made and from the injuries caused by one or some of them. The criminal act actually committed would certainly be one of the important factor to be taken into consideration but should not be taken to be the sole factor.
15. Under Section 34 IPC, a pre-concert in the sense of a distinct previous plan is not necessary to be proved. The common intention to bring about a particular result may well develop on the spot as between a number of persons, with reference to the facts of the case and circumstances of the situation. The question whether there was any common intention or not depends upon the inference to be drawn from the proving facts and circumstances of each case. The totality of the circumstances must be taken into consideration in arriving at the conclusion whether the accused had a common intention to commit an offence with which they could be convicted".
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39. To appreciate such argument canvassed on behalf of A-2, we have scanned the evidence on record. The evidence of PW1 shows that both A-1 and A-2 had hacked the injured persons which was told to him by the PW6, over phone. But, the PW6 has not corroborated such evidence of PW1 and rather his evidence is that it was the A-1 who had hacked the injured. Therefore, the evidence of the PW1 has no relevance so far A-2 is concerned.
40. The evidence of PWs 3, 4, 5, and 8 shows that the A-1 was proceeding towards the police outpost shouting that he had hacked someone. At that time, the A-2 was shouting at the A-1 asking him to come hurriedly and board the car. A-2 was in the Maruti car at that time. Such fact has been corroborated by the evidence of PWs 8 and 11.
41. The evidence of PW12 shows that the A-2 was intercepted by him with his vehicle. The A-2 was driving the car at high speed. But, the evidence of PW12 shows that he had heard that the A-1 had hacked the deceased and the injured. His further evidence is that he came to the place of occurrence half-an-hour after the occurrence. However, the evidence of the Investigating Police Officer (PW21) shows that he had apprehended the A-2. The PW21 has nowhere deposed that it was the PW12 who had intercepted the car driven by A-2, and handed A-2 over to police. Therefore, there is a clear contradiction between the evidence of PW12 and PW21.
42. The witnesses had noticed that the A-1 had a dao in his hand and was also shouting that he had hacked somebody and was moving towards the police outpost. The evidence discussed at para 31 and 32 shows that the A-2 was not with the A-1 at the relevant point of time of occurrence. The only evidence against the A-2 is that he was around the Page No.# 24/27 place of occurrence with the car owned by the A-1 and that after the occurrence, he had asked A-1 to board the car. There is no evidence to the effect that the A-2 had meeting of minds with the A-1 in respect of commission of the crime. Even there is no evidence to show that the A-1 came to the place of occurrence in the car owned by him and driven by the A-2. The seizure list Ext. 6 shows that the owner of the car was the A-1. He also used to drive the same as found from the evidence of PW5. There is no evidence to show that both the appellants had come together to the place of occurrence and in the same vehicle or to show that the A-2 knew that the A-1 had come to the place of occurrence with a view to commit the crime.
43. The evidence shows that none of the witnesses had ascribed any role to the A-2 in the assault on the deceased Manash Dutta and the injured Diganta Dihingia. Therefore, the only way in which the conviction of the A-2 can be sustained with the aid of Section 34 of the IPC, is if the attack on the deceased and the injured was in furtherance of his common intention with the A-1.
44. In the light of the principles laid down in the above decisions, we have scrutinised the evidence on record as regards A-2. The only evidence against the A-2 is that immediately after the occurrence, A-2 had shouted at his brother A-1 to come in a hurry and board the Maruti car which was subsequently seized by police. However, the evidence of PWs 2 and 4 shows that instead of coming to the car, A-1 went to the nearby police outpost with the weapon of offence in his hands. The evidence of PWs 5, 6, 9, 11 and 13 also shows that although the A-1 wanted to flee, yet, he had gone to the police outpost as the public wanted to apprehend him. Their evidence also shows that the A-1, before A-2 had asked him to board the car, was shouting, raising an alert, that he had cut someone. Such evidence clearly Page No.# 25/27 suggest that had there been meeting of minds between A-1 and A-2 and the A-2 was aware of the plan/design, A-1 would have come and boarded the waiting car instead of shouting, as aforesaid, as till then, the public was not aware of the occurrence. The only witness who was aware of the occurrence (PW6) did not raise any alarm and even did not inform any of the witnesses, except PW12, about the occurrence. PW12, admittedly, had come to the place of occurrence from his house after about half-an-hour.
45. There is absolutely no evidence even to remotely suggest that the A-2 knew about the design of the A-1 and that he had come to the place of occurrence with the weapon of offence in his hand. There is no evidence that the A-2 was physically present at the place of occurrence. Even to presume constructive intention of the A-2, we have no materials on record. In the absence of such facts, it is unsafe to infer that there was common intention of the A-2 and A-1 to commit the crime and therefore, A-2, in our view, deserves to be extended the benefit of reasonable doubt.
46. In view of Suresh (supra) common intention presupposes prior concert, which requires a prearranged plan of accused participating in an offence. Such plan must precede the act constituting the offence. We have already recorded that there is no evidence direct or circumstantial that there was any plan of A-2 to commit the crime with A-1. What is further required, as per Suresh (supra), is that the accused persons sharing common intention must be physically present at the place of occurrence and be shown not to have dissuaded themselves from the intended criminal act for which they shared common intention. We have already found that the A-2 was not physically present at the place of occurrence and participated in the criminal act of causing injuries to the injured and the deceased. From this point of view, the A-2 cannot be said to have shared common intention with A-1.
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47. On the other hand, the origin of the offence is also in no way connected with the A-
2. The evidence of PW6 also clearly shows that 20 - 30 minutes before the occurrence, the A- 1 had some altercation with injured Diganta Dihingia and thereafter he left the place saying that he would come back. Such evidence of the PW6 means that the A-1 left with a warning that he would come back and take injured Diganta Dihingia to task. Evidently, the occurrence took place thereafter. Therefore, it does not appear that the origin of the occurrence has any connection with the A-2 as required by Balu alias Bala Subramaniam (supra).
48. In view of the above, we find that there is no such evidence against the A-2 to convict him for the charges involved in this case, with the aid of Section 34 of the IPC, beyond all reasonable doubt.
49. The direct evidence of PW15 (injured) and the circumstantial evidence appearing from the evidence of PWs 2, 4, 5, 6, 8, 9, 10, 11, 13 and 14, discussed above, prove, beyond reasonable doubt, that the A-1 had caused the fatal injuries on the person of the deceased Manash Dutta causing his death and also caused grievous injuries to Diganta Dihingia with a sharp cutting weapon.
50. The order of conviction in respect of A-1 (Putul Dutta) is based on evidence on record and does not call for any interference. Accordingly, the conviction of A-1 is upheld for offence punishable under Sections 302/457/326/307 of the IPC. The sentences being proportionate to the offences no interference is called for in respect of the sentences also. The sentences shall run concurrently. The fine imposed upon the A-1 (Putul Dutta) with the default clauses on various counts remain undisturbed.
51. However, the A-2 (Manoranjan Dutta) is acquitted, on benefit of doubt, and he be set Page No.# 27/27 at liberty forthwith.
52. Accordingly, the appeal stands partly allowed.
53. Send down the LCR along with a copy of this judgment.
JUDGE JUDGE Comparing Assistant