Gauhati High Court
Toseswar Chutia And Ors. vs State Of Assam on 1 February, 2002
Equivalent citations: 2002CRILJ1465
Author: A.K. Patnaik
Bench: A.K. Patnaik
JUDGMENT A.K. Patnaik, J.
1. This is an appeal against the judgment dated 20-8-1996 of learned Sessions Judge, Dhemaji, in Sessions Case No. 103(DH)/1992. By the said judgment, the learned Sessions Judge has convicted the appellants under Section 147,I.P.C. and also under Section 302, I.P.C. For the offence under Section 147, I.P.C. the learned Sessions Judge has imposed a sentence of rigorous imprisonment for two years on all five appellants and for the offence under Section 302, I.P.C. he has imposed a sentence of rigorous imprisonment for life and fine of Rs. 1000/- each and in default, further rigorous imprisonment for one year, sentences are to run concurrently. All the five persons who have been convicted and sentenced have filed this appeal.
2. The case started with an FIR lodged by Smt. Mukheswari Chutia on 10-1-1988 with the Officer-in-charge, Demaji Sadar Police Station alleging that in the evening of 9-1-1988, five appellants surrounded her husband Narayan in front of the gateway of the house and assaulted him and badly injured his eyes, mouth and waist. Narayan was thereafter sent by the police to hospital for treatment where he succumbed to his injuries on 14-1-1988. Investigation was carried out and a charge-sheet was filed. On 2-1-1992, the learned Judicial Magistrate, 1st Class, passed order in GR Case No. 30/1988 committing the case to the Court of learned Sessions Judge for trial. On 5-7-1993, the learned Sessions Judge framed charges against the appellants under Sub-section 147/302, I.P.C. Appellants pleaded not guilty and the case proceeded for trial.
3. At the trial, Smt. Mukheswari Chutia, who lodged the FIR, was examined as P.W. 1. She stated that there was a dispute relating to purchase of a plot of land from the appellant, Tarun Chutia and in the evening of the date of occurrence, appellants-Tosheswar, Sarbeswar, Tarun, Loheswar and Phuleswar being armed with lathis, iron ods, etc. came to her house and when they beat the fence her husband Naryan came out to courtyard enquiring as to who was beating the fence and Tosheswar dealt a blow on the head of her husband. Immediately her husband fell down on the ground and as soon as he fell down, other accused persons also beat her husband. She came out of the house shouting as to why he was screaming and he said that Tosheswar hit him. She has further stated that he (Tosheswar) also beat her son Sunil Chutia and after beating them the appellants fled away. P.W. 1 has further stated that she and her son lost their sense and regained their sense only in the next morning and found Narayan lying with injuries on his head, eyes, chest and legs. She went to police station and got an ejahar written. Police took them including Narayan to the hospital in a police vehicle and after six days her husband Narayan died in the hospital. P.W. 2, the son of Narayan and P.W. 1, was also examined who has generally corroborated the aforesaid story given out by P.W. 1, but has stated that he could not recognise the persons who assaulted in the dark. P.W. 3 is a local resident who has stated that he came to know from the public that Naryan had died following a fight, but he did not know who assaulted whom in the fight. P.W. 4 is another local resident who has stated that she does not know how Narayan died. P.W. 5 is the daughter of Narayan and she has stated that she does not know how he died. The doctor who carried on post-mortem examination on the dead body of Narayan at Dhemaji Civil Hospital has been examined as P.W. 6. The postmortem report has been exhibited as Ext. 1. He has stated that during post-mortem examination on 15-1-1988, a stitch wound over the left temporal region of the dead body of Narayan was seen and on removal of stitches, lacerated wound of the size 2" x 1/2" bone deep was found and on dissection there was linear fracture of temporal bone at the side of the wound. According to his opinion, the cause of death was due to shock and haemorrhage complicated with the injury to the vital organ (brain). The IO has been examined as P.W. 7 and he has stated that he has prepared the inquest report, Ext. 2 and that after investigation he submitted charge-sheet against the accused persons and the accused persons who were earlier absconding surrundered before the Court. After the prosecution evidence, all five accused persons were examined on the evidence against them on 24-7-1996. On 20-8-1996, the learned Sessions Judge delivered the impugned judgment holding the appellants guilty of the offences under Sub-section 147 and 302, I.P.C. Aggrieved by the said judgment of the learned Sessions Judge, the appellants have filed this appeal.
4. Mr. P. Kataky, learned counsel for the appellants, submitted that the charges framed against the appellants were defective as no charge under Sub-section 302/149, I.P.C. or under Sub-section 302/34, I.P.C, had been framed against the appellants. He further submitted that no charge under Section 302, I.P.C. simpliciter against any of the appellants has been framed. He argued that the appellants were highly prejudiced in taking the defence and on this ground alone the appellants are entitled to be acquitted. In support of this contention, he cited a decision of the Division Bench of this Court in Mukul Mandal v. State of Assam 1997 (3) GLT 256. Mr. Kataky next submitted that the only witness who has named the appellants in the evidence is P.W. 1, but before the IO in her statement recorded under Section 161, Cr. P.C. she has not named Tarun and Loheswar, appellants Nos. 2 and 3 and hence her statement before the Court that all the appellants participated in the assault on the deceased stood contradicted by her previous statement and the appellants Nos. 2 and 3 are entitled to acquittal. He cited the decision of the Supreme Court in Mahabir Singh v. State of Haryana AIR 2001 SC 2503 : 2001 Cri LJ 3945, in which a similar contradiction in the statement of the solitary eye-witness before the Court and the statement before the police on a crucial aspect pertaining to complicity of co-accused was a ground for acquitting the co-accused for the offence under Section 302, I.P.C. read with Section 34. Mr. Kataky vehemently argued that unless the solitary eye-witness is wholly a reliable witness, the Court should insist upon some independent corroboration of testimony of such eye-witness in material particulars before recording conviction and for this proposition, he relied on the decision of the Supreme Court in Anil Phukan v. State of Assam (1993) 3 SCC 282 : 1993 Cri LJ 1796. According to Mr. Kataky, the evidence of P.W. 1 is not wholly reliable inasmuch she has implicated in her evidence before the Court appellants 2 and 3, namely, Tarun and Loheswar although she has not implicated them in her statement before the police. Since the evidence of P.W. 1 has not been corroborated in material particulars by the evidence of P.W. 2, the conviction of the appellants is bad in law and all the appellants are entitled to acquittal. He also argued that since no overt acts have been attributed to appellants 2 and 5, namely, Tarun, Loheswar, Sarbeshwar and Phuleswar, the said appellants 2 to 5 cannot be convicted under Section 302, I.P.C. read with Section 149. In support of this submission, he cited the decision of the Supreme Court in Manoj v. State of Maharashtra 1999 Cri LJ 2284 : AIR 1999 SC 1620. Finally, he argued that from the evidence of P.W. 1, it is clear that appellant No. 1 Toseswar gave only a single blow to Narayan after which he fell down on the ground and next day Narayan was taken to hospital and after 6 days he expired. According to Mr. Kataky, such a single blow given by Toseswar during night time, when it was dark, might have landed on the head of Narayan, but from this it cannot be held that the blow was given by appellant-Toseswar with the intent to cause death of Narayan and, therefore, the offence, if any, committed by Toseswar is not. under Section 302, I.P.C, but under Section 304, Part II, I.P.C. and the sentence of imprisonment for life should be converted to one already undergone. He cited the decisions of the Supreme Court in Jagrup Singh v. State of Haryana AIR 1981 SC 1552 : 1981 Cri LJ 1136; Jawahar Lal v. State of Punjab AIR 1983 SC 284 : 1983 Cri LJ 429; Hari Ram v. State of Haryana (1983) 1 SCC 193 : 1983 Cri LJ 346 and the decision of this Court in Ramesh Bora v. State of Assam (1996) 3 GLR 5, in support of this submission.
5. In reply, Mrs. K. Deka, learned Public Prosecutor, Assam, contended that the fact that a single blow was given which resulted, in the death of Narayan would not take the offence out of the purview of Section 302, I.P.C. and the Court will have to take into consideration all other facts and circumstances for deciding as to whether the offence under Section 302, I.P.C. has been committed or not. She cited the decision of the Supreme Court in Mahesh Balmiki v. State of M.P. (2000) 1 SCC 318 : 1999 Cri LJ 4301, in support of her contention. She also relied on the decision of the Supreme Court in Jagtar Singh v. State of Punjab (1999) 2 SCC 174 : 1999 Cri LJ 20, wherein the appellant was found to have inflicted one 'gandasa' blow on the head of the deceased who died after 16 days of the incident due to septicaemia caused by head injury and the Supreme Court held that the appellant was rightly convicted under Section 302, I.P.C. According to Mrs. Deka, therefore, the submission of Mr. Kataky that appellant No. 1, Toseswar, cannot be held to be guilty of offence under Section 302, I.P.C. for the single blow on the deceased should be rejected by the Court. She further argued that if the Court finds that the other appellants 2 to 5 did not share the common object or common intention with appellant No. 1 to commit the offence under Section 302, I.P.C, they are liable to conviction for their individual acts for other offences. This has also been laid down by the Supreme Court in Jagtar Singh v. State of Punjab (supra).
6. The first question to be decided in this case is whether the conviction of all the appellants under Section 302, I.P.C, by the impugned judgment of the learned Sessions Judge is sustainable. P.W. 1, the wife of the deceased-Narayan, who is the eye-witness to the incident has stated :
...In the evening on the day of occurrence Toseswar, Sarbeswar, Tarun Chutia, Loheram and Phuleswar Chutia, being armed with lathis and iron rods, etc., came to our house. Coming there when they beat the fence,my husband Narayan Chutia went out to the courtyard and said, 'who beats the fence.' At that time I was inside the house. Tosheswar Chutia dealt blow on the head of my husband. Immediately he (my husband) fell down on the ground. As soon as he fell down on the ground the other accused persons also beat my husband. We came out of the house. "Why are you screaming" ? Saying this Tosheswar Chutia hit me. He beat my son Sunil Chutia also. After beating us, the accused persons fled away....
It would be clear from the aforesaid evidence that although P.W. 1 has stated that Tosheswar, Sarbeswar, Tarun, Loheswar and Phuleswar all armed with lathis and iron rods, etc. came to their house, it was only Tosheswar who dealt the blow on the head of her husband. She has however stated that the other accused persons also beat her husband, but she has not specifically stated as to how the other accused persons beat her husband and on which part of the body. P.W. 2, the son of the deceased and P.W. 1, has generally corroborated the incident as narrated by P.W. 1, but has stated in his cross-examination that he could not recognise the persons who had assaulted his father because it was dark. There is no other eye-witness to the incident. In the absence of any clear evidence as to the exact role played by appellants-Sarbeswar, Tarun, Loheswar and Phuleswar, it is difficult to sustain the conviction of the said appellants 2 to 5 under Section 302, I.P.C. In Manoj v. State of Maharashtra 1999 Cri LJ 2284 : AIR 1999 SC 1620 (supra), cited by Mr. Kataky, learned counsel for the appellants, the Supreme Court found that so far as the role ascribed to accused 2 and 3 in that case was concerned, the concerned witness had not given any definite overt acts except making the general version that all accused surrounded and assaulted and the Supreme Court held that the evidence of the witnesses did not bring home the charge of murder against accused Nos. 2 and 3.
7. In the aforesaid decision in the case of Manoj v. State of Maharashtra, the Supreme Court found that the nature of injuries found on the deceased and the medical evidence of the Doctor fully corroborated the oral evidence of P.W. 1 in which the role of accused No. 1 had been clearly ascribed and the Supreme Court held that so far as accused No. 1 was concerned, the prosecution case could be said to have been proved beyond reasonable doubt on the basis of the evidence of P.W. 1. In the present case also, P.W. 1 has clearly stated that accused-Tosheswar dealt a blow on the head of her husband and immediately her husband fell down on the ground. P.W. 6, Doctor who examined the dead body of the deceased-Narayan and prepared the post-mortem report, has stated that during post-mortem examination he found a stitch would over the left temporal region and on removal of stitches he found a lacerated wound of the size 2" x 1/2" bone deep and on dissection there was a linear fracture of left temporal bone at the side of the wound and on further dissection, the dura was found tear at the side of the fracture and the subdural space contained blood. P.W. 6 has also opined that the cause of death was due to shock and haemorrhage complicated with the injury to the vital organ (brain). It is thus clear that the blow given by Tosheswar with lathi or iron rod on the head of the deceased-Narayan was the cause of his death. The evidence of P.W. 1 as corroborated by the injury on the temporal region of the head of the deceased and the medical evidence of the doctor, P.W. 6, as well as the postmortem, report, Ext. 1, therefore, establish beyond reasonable doubt that the death of the deceased was caused by appellant No. 1 Tosheswar.
8. According to Mr. Kataky, however, the fact that the appellant-Tosheswar dealt only one blow on the deceased-Narayan would show that he had no intention to cause the death of Narayan. He further argued that in the darkness of evening Tosheswar could not possibly know as to whether the blow which he was giving would land on the head of the deceased or on any other part of the body. He relied on the decisions of the Supreme Court in Jagrup Singh v. State of Harayana, Jawahar Lal v. State of Punjab and Hari Ram v. State of Haryana (supra), wherein it was held that the accused could not be said to have the intention to cause the death by a solitary blow. In Jagrup Singh v. State of Haryana AIR 1981 SC 1552 (supra), the Supreme Court had found on facts that the appellant in that case had struck the deceased with the blunt side of the 'gandhala' in the heat of the moment, without premeditation and in a sudden fight and the case was covered by Exception 4 to Section 300, I.P.C and had accordingly set aside the conviction of the appellant-Jagrup Singh and altered the conviction to one under Section 304, Part II. But in the present case, the appellant-Tosheswar had come armed with lathi or iron rod ready to fight and the Court can not possibly record a finding that he had given the blow to the deceased-Narayan without pre-meditation, in a sudden light and in the heat of passion or upon sudden quarrel so as to bring the case within Exception 4 to Section 300, I.P.C. In Jawahar Lal v. State of Punjab AIR 1983 SC 284 (supra), the Supreme Court found that the first ap-pellant-Jawahar Lal was a young immature boy aged about 19 years and gave one blow with knife to the deceased and incident occurred at about 10 p.m. and there was no attempt on his part to give a second blow and the blow that he gave in the available dimlight landed on the chest of the deceased and in these circumstances it was difficult to say that the first appellant intended to cause that particular injury on the chest and, therefore, even if the injury was proved to be fatal, the case would not be covered by para 3 of Section 300, I.P.C. The facts of the present case are entirely different. The ap-pellant-Tosheswar came armed with lathi or iron rod, as indicated above. He along with others beat the fence of the house of the deceased-Narayan and when the deceased-Narayan came out to courtyard of the house, Tosheswar dealt the blow on his head afterwhich the deceased-Narayan fell down on the ground and even thereafter he was beaten by the appellants. Post-mortem report, Ext.1, prepared by P.W. 6, the Doctor, indicates that besides the wound over the temporal region of the head of the deceased, there were other injuries on the person of the deceased. These injuries were:
1. Multiple bruises over the back of varying sizes.
2. Bruise over post aspect of left thigh size 3" x 2."
3. Abrasion over lateral aspect of natal cleft in leftside size 3" x 1."
4. Linear are abrasion over back of the neck extending from the nape of the neck to back of the left shoulder size 5" x 1/4."
Thus, this is just not a case of single blow, but several blows given on the deceased out of which one blow landed on the head of the deceased. On these facts, it is difficult to hold that there was no intention on the part of the appellant-Tosheswar to cause the death of the deceased and that the case is not covered under Section 300, I.P.C. In Mahesh Balmiki v. State of M.P. (2000) 1 SCC 318 (supra), cited by Mrs. Deka, learned Public Prosecutor, Assam, the Supreme Court has held that there is no principle that in all cases of a single blow Section 302, I.P.C. is not attracted and the question with regard to the nature of offence has to be determined on the facts and circumstances of each case. In Jagtar Singh v. State of Punjab (1999) 2 SCC 174 (supra), the Supreme Court found that Naib Singh, the deceased in that case, died 16 days after the incident due to septicaemia, but P.W. 1 in that case, the doctor who held the post-mortem examination categorically stated that, the septicaemia was due to the head injury sustained by Naib Singh and that the injury was sufficient in the ordinary course of nature to cause death. The Supreme Court agreed with the view taken by the High Court that the injury which was intended to be caused was sufficient in the ordinary course of nature to cause death and that the case fell under Section 300, I.P.C. In our considered opinion, in the facts and circumstances as available from the evidence of P.W. 1, P.W. 6 and the postmortem report, Ext. 1, the injury that Tosheswar intended to cause was sufficient in the ordinary course of nature to cause the death of the deceased-Narayan and the appellant-Tosheswar is guilty of the offence under Section 300, I.P.C.
9. Coming to the submission of Mr. Kataky that the charge framed against the appellant-Tosheswar was not for the substantive offence under Section 302, I.P.C. and, therefore, the appellant-Tosheswar cannot be convicted under Section 302, I.P.C. we find on perusal of the charge that all the appellants including Tosheswar were charged for having formed in unlawful assembly and with the common object of causing the death of Narayan Chutia by means of Lakhuti, Jongra, etc. and for having committed the offences punishable under Sub-section 147/302, I.P.C. The appellant-Tosheswar was thus fully aware from the very beginning of the trial that the charge against him was one under Section 302, I.P.C. The appellant-Tosheswar has, therefore, not suffered any prejudice in his defence. Assuming that there was some defect in the charge, Section 215, Cr. P.C. 1973, clearly states that no error in stating either the offence or the particulars required to be stated in the charge and no omission to state the offence or those particulars, shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission and it has occasioned a failure of justice. Mr. Kataky has not been able to show before this Court as to how the appellant Tosheswar was in fact misled by error or omission, if any, in the charge and such error has occasioned a failure of justice. In Ramesh Bora v. State of Assam (1996) 3 GLR 5 (supra), relied on by Mr. Kataky, a Division Bench of this Court found that charge was framed against the accused under Sub-section 323/34, I.P.C. in respect of simple hurt caused to Smt. Rashmi Rekha Bora and that no charge had been framed under Section 302 read with Section 34, I.P.C. and the Division Bench held that in absence of such a charge, the accused had suffered prejudice as he had no knowledge or the nature of the case that he was supposed to meet at the trial in respect of Smt Rashmi Rekha Bora. But in the instant case, a clear charge has, been framed against all the appellants including the appellant-Tosheswar for the offence under Section 302. I.P.C, In Mukul Mandal v. State of Assam 1997 (3) GLI 256 (supra), relied on by Mr. Kataky, a Division Bench of this Court found that there was no eye-witness and the prosecution case was based on circumstantial evidence coupled with the recoveries made at the instance of the accused and that charge had been framed against the two accused persons under Section 302 read with Section 34, I.P.C. The Division Bench held that after the acquittal of the co-accused for murder, the individual and not the conjoint liability of the appellant was to be established by the prosecution before the appellant could be convicted under Section 302, I.P.C. simipliciter. The reason was that there was no evidence whatsoever of eye-witness as to who out of the two co-accused gave the stab injury on the neck of the deceased. In the present case, on the other hand, evidence of P.W. 1 is clear that the blow on the head of the deceased-Narayan was given by none other than the appellant-Tosheswar. The aforesaid individual act of appellant-Tosheswar including other facts clearly establish beyond reasonable doubt that the appellant-Tosheswar is guilty of the offence under Section 302, I.P.C.
10. The next question to be decided is whether the conviction of all the appellants by the impugned judgment of the learned Sessions Judge under Section 147, I.P.C. is sustainable. Section 147, I.P.C. provides that whoever is guilty of rioting, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. Offence of 'rioting' has been defined in Section 146, I.P.C. which states that whenever force or violence is used by an unlawful assembly, or by any member thereof, in prosecution of the common object of such assembly, every member of such assembly is guilty of the offence of rioting. P.W. 1 in her evidence, quoted above, has stated that in the evening on the day of occurrence Tosheswar, Sarbeswar, Tarun, Loheswar and Phuleswar being armed with lathi, iron rods, etc. came to their house and they beat the fence. The evidence of P.W. 1 further discloses that after all the appellants came to the house of the deceased armed with lathi, iron rods, etc., force or violence was used by the appellants and in particular by the appellant-Tosheswar as a result of which Narayan (deceased) died. The common object of all the five appellants in this case appears to be to assault Narayan and not to cause the death of Narayan and the appellants other than Tosheswar may not be guilty of the offence under Section 302, I.P.C. but they were members of an unlawful assembly which had a common object and force or violence was used in pursuance of such common object. Thus, all the appellants were guilty of the offence under Section 147, I.P.C.
11. Mr. Kataky, of course, argued that P.W. 1 did not tell the police in her statement under Section 161, Cr. P.C. that Tarun and Loheswar had assaulted her husband. Statement of a witness recorded by the police may be used by an accused to contradict such witness in the manner provided in Section 145 of the Indian Evidence Act, 1872. This would be clearly from the proviso to Sub-section (1) of Section 162, Cr. P.C. 1973. Section 145 of the Indian Evidence Act, 1872, provides that a witness may be cross-examined as to previous statements made by him in writing or reduced into writing and relevant to matters in question, without such writing being shown to him, or being proved; but if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him. In the present case, in the cross-examination of P.W. 1, only a suggestion had been put to her that she did not tell the police in her statement that Tarun and Loheswar had assaulted her husband and P.W. 1 had denied the said suggestion. There was no question put to P.W. 1 that she had not stated before the police that Tarun and Loheswar did not at all come armed with lathi and iron rods to the house. Thus, no question had been put to P.W. 1 to show contradiction in his statement before the Court and before the police with regard to the fact of Tarun and Loheswar coming with lathi and iron rods with other appellants to the house in the evening of the day of occurrence. For the offence of rioting as defined in Section 146, I.P.C It is not necessary for the prosecution to establish that Tarun and Loheswar assaulted the deceased and it is enough for the prosecution to establish that Loheswar and Tarun were also members of the unlawful assembly and that force or violence was used by any member of the said unlawful assembly in prosecution of the common object of such assembly. Hence, Tarun and Loheswar were also guilty of the offence of rioting along with other appellants and were punishable under Section 147, I.P.C.
12. In the result, while upholding the conviction of the appellant-Tosheswar under Section 302, I.P.C and the sentence of rigorous imprisonment for life and fine of Rs. 1000/- in default further rigorous imprisonment for one year, we set aside the conviction of other appellants, namely, Tarun Chutia, Sarbeswar Chutia, Loheswar Chutia and Phuleswar Chutia, under Section 302, I.P.C. We, however, uphold the conviction of all the appellants under Section 147, I.P.C. We find that the appellants-Tarun, Loheswar, Sarbeswar and Phuleswar after their conviction by the impugned judgment of the learned Sessions Judge on 20-8-1996 were in custody until they were released on bail pursuant to order dated 9-7-1997. We reduce the sentence in case of all the appellants under Section 147, I.P.C. to the period already undergone by them.
The appeal is partly allowed.