Gauhati High Court
Prafulla Bora And Ors. vs State Of Assam on 3 March, 1987
Equivalent citations: 1988CRILJ428
JUDGMENT Manisana, J.
1. This appeal arises from the judgment and order dt. 6-3-1979 passed by the learned Sessions Judge Nowgong in Sessions Case No. 61 (N) of 1977 convicting the appellants under Section 302 r/w Section 34, IPC and sentencing each of them to undergo R.I. for life.
2. The case of the prosecution is that the accused Kotia Bora is the brother of the deceased Loyram Bora. The accused Prafulla Bora, Bipul Bora alias Baba and Promode Bora alias Bup are sons of the accused Kotia. Accused Sibaram Bora is son of the maternal uncle of Prafulla. PW5 Senahi Bora is the mother of the accused Kotia and the deceased Loyram. PW 6 Krishna Bora is son of deceased Loyram. PW7 Renumai is daughter of the deceased. At the time of occurrence, the homestead land of the accused was situated contiguously to that of the deceased. On 12-5-1976 at about 8.30 p.m., Loyram heard Kotia's wife abusing him when he was returning his home after attending a meeting. Loyram enquired of his son Krishna (PW 6) and daughter Renumai (PW7) as to what has happened. They reported that Kotia's wife was abusing him as their cattle damaged the seedlings of Kotia. Loyram went to his. cow-shed to see his cattle and at that moment the accused persons, namely, Kotia, his sons Promode, Prafulla and Bipul, and his nephew Sibaram came armed with weapons and started assaulting Loyrarn ,at his court-yard. The accused dragged Loyram out to the court-yard of Kotia. Krishna (PW6) and Senahi (PW 5) raised alarm. PW 5 Senahi and PW 6 Krishna were also assaulted by some of the accused persons. Loyram sustained bleeding injuries and fell down over the ground unconscious. Accused Sibaram called the doctor (PW 2) in. At the advice of the doctor (PW 2), Loyram was taken to Nagaon Civil Hospital On that very night Loyram succumbed to his injuries. The accused Sibaram lodged an ejahar (Ext. 2) with the Nagaon Sadar Police Station. After investigation, the police submitted chargesheet against the said five accused persons under Sections 302, 323 and 34, IPC. The learned - Sessions Judge framed charges against the accused persons under Section 302 r/w Section 34, IPC and also under Section 323 r/w Section 34, IPC. The accused pleaded not guilty. The prosecution examined 12 witnesses and the defence examined 1 witness. On trial the learned Sessions Judge acquitted Kotia Bora of all the charges. The learned sessions Judge also acquitted Prafulla, Sibaram, Baba and Bup of the charges under Section 323 r/w Section 34, IPC. But the learned Sessions Judge convicted the four accused persons, namely, Prafulla, Sibaram, Baba and Bup under Section 302 r/w Section 34, IPC and sentenced each of them to undergo R.I. for life; hence this appeal in this Court.
3. Mr. D. N. Choudhury, the learned Counsel for the appellants, has submitted that the accused Kotia has been acquitted of all the charges, therefore, in the context and circumstances of the case, all the accused are also entitled to acquittal,
4. In a criminal trial in which more than one accused are involved, the Court has to deal with the case of each accused separately and has to ascertain and give findings as regards the act or acts to have been committed by each of the accused. Thereafter the Court has to see whether what is proved in respect of each accused amounts to an offence. It is also settled that the mere fact that out of many accused some are acquitted is not sufficient to entitle rejection of the entire prosecution case, and that the Court should make every effort to disengage the truth from the falsehood and to sift or separate the grain from the chaff rather than take the easy course of rejecting the entire prosecution case merely because there are some embellishments. It is equally settled that where the grain and the chaff are so inextricably mixed up that in the process of separation the Court will have to reconstruct an absolutely new case for the prosecution, then the principle to make an attempt to separate the grain from the chaff and the truth from the falsehood will not apply. If any authority is required on the proposition, we may refer to Balaka Singh v. State of Punjab and Molu v. State of Haryana . In this view of the matter, the acquittal of the accused Kotia by merely giving the benefit of doubt does not necessarily mean that the eye-witnesses have given false statements to implicate innocent persons. Therefore, the evidence of each of the witnesses is to be scrutinized keeping the above principles in view.
5. PW 5 Senahi Bora, PW 6 Krishna and PW-7 Renumai appear to be eye-witnesses. The evidence of PW 5 Senahi is that Kotia's wife was abusing Loyram as his cattle damaged some seedlings of Kotia. Loyram went to his cow-shed, to see his cattle and as soon as he came out of the cow-shed, Kotia cried to assault Loyram and then Kotia, Prafulla, Baba, Bup and Sibaram assaulted Loyram with lathi, jathi (spear) and iron rods. Her evidence is of a general nature, and is not in details with definiteness. There is no evidence as to who assaulted deceased with what weapon and on what part of the body of the deceased. On the same set of evidence accused Kotia has been acquitted. Her evidence is so mixed up that it is difficult to separate evidence concerning the accused Kotia from those concerning other accused persons in order to separate the truth from the falsehood. Further, her evidence is that her vision was not well and she was also hard of hearing. The occurrence took place after the dark while she was inside the house. She came out of the house hearing "Dhar"! "Mar" and found the accused persons dragging Loyram out to the court-yard of Kotia. Her evidence shows that she did not see the actual assault as she was inside the house and she came out of the house on hearing the alarrrt "Dhar" ! "Mar". She was aged about 80 and her vision was also weak, as stated by her Under these circumstances, it will be unsafe to rely on her evidence.
6. Before scrutinising the evidence of PWs 6 and 7, we feel to deal with the injuries found on the person of the accused Prafulla. PW1 Dr. Rabindra examined the accused Prafulla at about 5.35 p.m. on 13-1-1976 and found three fresh and simple injuries caused by blunt weapon. The injuries were (1) haemetoma 1" X 1/2" under the right shoulder, (2) haemetoma 2" X 1" over the left gluteal region, and (3) abrasion 1" X 1/4" over the right shoulder. The accused Prafulla, in his examination under Section 313, Cr PC has stated that on the day of occurrence his mother was abusing him and Loyram as the cattle of Loyram damaged their seedlings. Loyram chased him and assaulted him with a lathi on his back. As a result of it a scuffle took place and in that scuffle Loyram fell down over a stake of bamboos and received injuries.
7. The prosecution has not suggested any mutual fight. However, the statement of the accused Prafulla and the FIR reveal that there was a mutual fight between the deceased and the accused Prafulla and in that fight or scuffle Loyram received major injuries. Strictly speaking, an FIR can only be used to corroborate or contradict the maker of it However, in certain circumstances, an FIR may be relevant under Section 11 of the Evidence Act. In the present case, we are referring to the FIR assuming that the FIR is relevant or admissible without expressing our opinion about it as the matter can be disposed of without discussing it. The statements of the accused is to be considered in the light of the evidence adduced by the prosecution and weighing his statement with the probability of the case either in his favour or against him. It may be noted here that in the case of mutual fight, the fight must be between the person who has been killed and the person accused of. Therefore, in the present case, if there was any fight at all, the fight was between the deceased Loyram and accused Prafulla, and not between Prafulla's party and deceased Loyram or his party. PW 4 Dr. Bhattacharjee, who held post-mortem examination on the dead body of Loyram found the following four injuries - (1) fracture of right parietal bone, (2) two abrasions 5" X 2" and 1" X 1/2" on the left scapular region, (3) one abrasion 1" X 1/4" just above the left iliac spine, and (4) one external stitched wound 1/2" in length in the lower part of left side of chest corresponding to internal injuries of pleura and left lungh and fracture of 5th and 6th ribs at mid axillary line. The injury on the head and that on the chest were the cause of death of the deceased. It was not suggested to the doctor that all the injuries could be caused by falling down over a stake of bamboos. In view of the injuries received by the deceased and also for the if act that no witness is available to suggest the mutual fight, it is difficult to believe that the deceased received the injuries as stated by the accused Prafulla. But the prosecution has not explained the injuries found on the body of the accused Prafulla.
8. Question then is, - What would be the effect of the non-explanation? The above injuries on the body of the accused Prafulla were of minor characters. He was also examined by the doctor after about more than 20 hours of the occurrence.
9. In State of Gujarat v. Bai Fatima , the Supreme Court has observed that when a prosecution fails to explain injuries on the person by an accused, depending on the facts of its case, any of the three may follow:
1. That accused had inflicted injuries on the members of the prosecution party in exercise of right of self defence.
2. It makes prosecution version of the occurrence doubtful and the charges against the accused cannot be held to be proved beyond reasonable doubt.
3. It does not affect the prosecution case at all.
The injuries in the case before the Supreme Court were all of minor character and the Supreme Court has held that it did not affect the case of the prosecution on the facts and circumstances of the case.
10. In Jagadish v. State of Rajasthan , the Supreme Court has held:
It is true that where serious injuries are found on the person of the accused, as a principle of appreciation of evidence, it becomes obligatory on the prosecution to explain the injuries, so as to satisfy the Court has to the circumstances under which the occurrence originated. But before this obligation is placed on the prosecution, two conditions must be satisfied:
1. that the injuries on the person of the accused must be very serious and severe and not superficial;
2. that it must be shown that these injuries must have been caused at the time of the occurrence in question.
11. On the facts and circumstances of the case as discussed above and in view of the observations of the Supreme Court referred to above, the failure of the prosecution to explain the minor and superficial injuries found on the person of the accused Prafulla will not affect the cause of the prosecution.
12. As regards PW 6 Krishna and PW 7 Renumai, their evidence is that the accused Kotia assaulted Loyram on his head with a batten. The first blow on Loyram was given by the accused Kotia and accused Baba gave a jathi blow on the chest of Loyram. The accused Prafulla, Bup and Sibaram assaulted Loyram with iron rods. As already stated above, the medical evidence is that the injuries on the head and chest were of grievous nature. According to the prosecution, the head injury was caused by Kotia. There is no evidence that any of the accused Prafulla, Baba, Bup and Sibaram other than Kotia assaulted Loyram on his head, Therefore, the evidence relating to assault on the head of Loyram can be separated from other parts of the evidence of PWs 6 and 7. In other words, the evidence of PWs 6 and 7 can be scrutinized without considering the injury on the head of the deceased.
13. Going back to the evidence of PWs 6 and 7, at the time of the occurrence, PW 6 Krishna was aged about 12/13 and PW 7 Renumai was aged about 6/7 and they are the children of the deceased. But their evidence does not loose the credibility on that score. Their evidence, however, has only to be scrutinized with greater care and caution in order to find out whether it suffers from any embellishment or exaggeration due to interestness.
14. Dr. Rabindra (PW 1), who examined PW 6 Krishna at bout 10.00 am. on 13-5-76 found two injures on the person of PW 6. One of them was grievous injury, viz, fracture of the left humerus with displacement of middle 3rd. It is settled that the presence of a witness at the scene of occurrence cannot be doubted if he sustained grievous injury in course of the very transaction. It may be mentioned here also that the acquittal of the accused of the charge under Section 323 r/w Section 34, IPC in connection with the injuries sustained by PW 6 will not affect the case as the learned Sessions Judge has not held that PW 6 Krishna did not sustain the injuries and that he was not found at the place of occurrence.
15. In the light of the above discussions let us examine the evidence of PWs 6 and 7. With regard to the assault made by Bipul alias Baba on the chest of the deceased with jathi, Mr. Bora, the learned Counsel for the State, has submitted that the injury on the chest are relevant to the present case. The injury on the chest was one external stitched wound 1/2" in length at left side of the chest corresponding to the internal injuries of fracture of ribs, etc. as already stated above. In the evidence of the doctor (PW 4), there is no material to show that the injury on the chest could be caused by a jathi (spear) as whether the chest wound was punctured or penetrating wound or not, is not in evidence. There is vagueness in the medical evidence. There is also no other corroborative evidence of any independent witness. As already stated, their evidence is to be scrutinised with care and caution. Considering the overall circumstances of the case, the accused Baba is to be given the benefit of doubt.
16. The next question which arises for consideration is whether the accused Prafulla, Promode (Bup) and Sibaram assaulted the deceased by iron rods. First we are dealing with the case of the accused Prafulla At the time of the occurrence, the age of the accused Prafulla was 18/19 years. Mr. Bora has submitted that if Baba was not the author of the chest injury, the chest injury and the other injuries, namely, the abrasions on the left scapular region and on the left iliac spinal could be caused by iron rods. As already stated above, the presence of PW 6 Krishna cannot be doubted as he received a grievous injury. The accused Prafulla admitted his presence at the time of the occurrence although his explanation was that he was assaulted by the deceased. The accused Prafulla also received minor injuries. The injury on the chest of the deceased, if it could not be caused by jathi (spear) it could be caused by an iron rod. PW 6 Krishna and PW 7 Renumai have specifically stated that Prafulla assaulted their father Loyram by iron rod. The medical evidence does not compete against the evidence of PWs 6 and 7. The medical evidence shows that the deceased, in fact, sustained injuries. It is a matter of reading and interpretation of the medical evidence relating to two probabilities. In Karnail Singh v. State of Haryana the Supreme Court observed:
The only contention raised was that medical evidence is inconsistent with the direct testimony. The contention must fail for two reasons:
(i) that if direct evidence is satisfactory and reliable the same cannot be rejected on hypothetical medical evidence; and
(ii) as pointed out by Mr. K. G. Bhagat, learned Additional Solicitor General appearing for the State of Haryana, that if medical records properly read, it only shows two alternative possibilities but not inconsistency. That appears to be correct.
17. As already stated above the presence of the witnesses PW 6 Krishna and accused Prafulla in course of the transaction cannot be doubted. The presence of the deceased also cannot be doubted in view of the statement of the accused and the evidence of PWs 6 and 7. In other words, it can safely be concluded that the deceased Loyram, the accused Prafulla and the witness PW 6 Krishna were present together at the time and the place of occurrence. As regards the explanation of the accused Prafulla that he received injuries as assaulted by the deceased, it has already been concluded that the minor injuries found on the person of the accused Prafulla in no way affect the prosecution case. It has also been concluded that the deceased did not sustain the injures as stated by the accused Profulla. Therefore, the failure of the accused to satisfactorily account for the injuries sustained by the deceased is a circumstance of a highly criminating character. In such a situation, the evidence of PWs 6 and 7 is corroborated by the presence of the accused Prafulla at the place and time of the occurrence and the incriminating circumstance stated above. Therefore, there is no reason as to why the evidence of PWs 6 and 7 with regard to Prafulla should not be reliable. The Criminal law does nor require conclusive proof, it only requires proof beyond reasonable doubt. (See State of U.P. v. Ranjha Ram , and State of Kerala v. Bahubyan . In this view of the above discussions, it is held that the prosecution has proved beyond reasonable doubt that the accused Prafulla assaulted the deceased with an iron rod.
18. As regards other two accused, namely, Promo'de alias Bup and Sibaram are concerned, at the time of the occurrence Bup was aged 11/12 and Sibaram was aged 15/16. The medical evidence is that the cause of death was as a result of the injuries on the head and chest. In the evidence of PWs 6 and 7, there is no evidence that on what part of the body of the deceased each of the two accused gave blows. If Prafulla, Promode and Sibaram assaulted with iron rods there should have been at least three injuries caused by the iron rods. The evidence on record shows that the deceased was dragged out to the court-yard of Kotia. The abrasions are also produced by a blow, a fall or a slide on a rough surface or while dragging. But the prosecution has not explained how the abrasions were caused. The prosecution did not even suggest to the medical witness that the injuries could be caused by iron rods or while dragging. It may also be noted here that the facts concerned "must" and not "may be" established. There is a distinction between "may be proved" and "must be proved". The mental distance between "may be" and "must be" is long and it keeps "definite conclusion" separate from "indefinite conclusion." As already stated above, the evidence of PWs 6 and 7 are to be scrutinized carefully and cautiously. There is no corroborative evidence unlike that of the accused Prafulla. In view of the above discussions, the accused Promode and Sibaram are also to be given the benefit of doubt.
19. The next question which arises for consideration is what offence the accused Prafulla has committed. The evidence of the doctor is that the injuries on the head and chest were themselves sufficient to cause death. But the doctor has not stated that the injury on chest alone was sufficient to cause death. The bare statement of the evidence of PWs 6 and 7 that Prafulla assaulted their father by an iron rod is not sufficient to attract the provisions of Sections 299 and 300, IPC. Therefore, we are of the view that the accused Prafulla is liable to be convicted under Section 325 IPC.
20. The next question which arises for consideration is whether the accused Promode and Sibaram can be made vicariously liable by the operation of Section 34, IPC. When they were examined under Section 313, Cr PC, no question relating to common intention was put to the accused. That apart, on perusal of records, we do not find any materials to saddle them with liability with the help of Section 34, IPC. Therefore, they are entitled to acquittal.
21. The last question which arises for consideration is what sentence is to be awarded to the accused Prafulla. At the time of the occurrence, the age of the accused Prafulla was 18/19 as already stated above. The occurrence took place on 12-5-1976, that is to say, more than 11 years ago. There is no materials on record to indicate that the accused Prafulla had any previous conviction. In the absence of such evidence, we treat the appellant Prafulla as a first offender. Considering the over-all circumstances of the case, we are of the view that the sentence of imprisonment for 2 (two) years will meet the ends of justice. However, instead of sending the appellant Prafulla to jail, we are inclined to allow him to be released on probation of good conduct taking into consideration of the circumstances of the case, nature of the offence and the character of the appellant.
22. For the foregoing reasons, we set aside the conviction and the sentences passed by the learned Sessions Judge Nawgong and the accused Promode Bora alias Bup, Bipul alias Baba and Sibaram are acquitted of the charges of the offence under Section 302 r/w Section 34, IPC and their bail bonds are discharged. The appellant Prafulla Bora is convicted for having committed an offence under Section 325, IPC and is sentenced to undergo R.I. for 2 years. However, in view of the above discussions, we direct that the appellant Prafulla shall be released on entering into a bond of Rs. 5,000/-( Rupees five thousand only) with one surety of the like amount to receive sentence when called upon during the period of one year and in the meantime to keep peace and be of good behaviour. Meanwhile, the execution of the sentence is suspended. The bond shall be executed before the learned Sessions Judge Nowgong within 6 (six) weeks from today.
23. It is submitted at the bar that the appellant Prafulla is in service as a Jawan in the Indian Army. In Rajbir v. State of Haryana , the Supreme Court, while releasing the accused on probation of good conduct, considering the circumstances of the case observed:
We are of the view that in particular facts of the case, the conviction should not affect his service.
In the light of the above decision of the Supreme Court, we are also of the view that on the facts and circumstances of the case, the conviction should not affect the service of the appellant Prafulla.
24. With the said observations and directions, the appeal is partly allowed and disposed of.
T.C. DAS, J.
25. I agree.