Criminal Appeal No. 249 of 2005 · Gauhati High Court

o appeals are being disposed of by a common judgment and order.

By the impugned judgment and order, dated 30-09-2005, passed, in Session s Case No. 62 of 2003, by the learned Sessionos Judge, Nalbari, the two accused- appellants have been convicted under Section 304 (Part-II) read with Section 34 IPC. However, while the accused-appellant, namely, Pradip Das, has been sentence d to suffer rigorous imprisonment for 8 years and pay fine of Rs. 500/- and , in default of payment of fine, suffer rigorous imprisonment for 15 days, the other appellant, namely, Atul Das, has been sentenced to suffer rigorous imprisonment for four years and pay fine of Rs. 500/- and, in default of payment of fine, fu rther rigorous imprisonment for 15 days.

The case of the prosecution, as unfolded at the trial, may, in brief, be described thus: On 09-02-2002, in the afternoon, when Khiroda Das (PW4) and her daughter, Saraswati Das (PW5), were weaving clothes by placing the materials on the road near the entrance of the house of Ramesh Das (since deceased), Ramesh Das, on returning from the market, noticed that PWs 4 and 5 had been carrying on the act of weaving, as described hereinbefore, on the entrance of his house, he (Ramesh Das) asked them (PWs 4 and 5) to remove the instruments of weaving and, then, entered into his house. After some time, when Ramesh Das came out of his house, accused-appellant, Atul Das, called him, the house of Atul Das being situ ated opposite the house of accused-appellant, Pradip Das. On being called, when Ramesh Das went near accused Atul, Atul caught hold of Ramesh by both his hands and, at that point of time, Pradip Das came out of his house and assaulted Rames h with a dao on the latter’s neck killing Ramesh Das on the spot. On witnessing the occurrence, not only PWs 4 and 5, but some other persons, who were present n ear the place of occurrence, raised hullah and as the neighbours gathered at the place of occurrence, the two accused-appellants fled away. On 09-02-2002 itself , accused Pradip Das went to Komarkuchi outpost, at about 2.45 pm, with a dao in his hand and his clothes having stains of blood, whereupon he made a statement and based, on his statement, a GD Entry was made. The said dao and the blood sta ined shirt of the appellant, Pradip Das, were seized by the police. The police, then, visited the place of occurrence, held inquest over the said dead body, pre pared sketch map, examined the witnesses and also received a formal written Ejah ar from PW1 (Hitesh Das). Based on the said Ejahar and treating the same as the First Information Report (in short, ’the FIR’), a case, against both the accused -appellants, was registered under Section 302 read with Section 34 IPC and, on c ompletion of investigation, a charge-sheet was laid accordingly against both the accused.

To the charge, framed under Section 302 read with Section 34 IPC, at the trial, both the accused-appellants pleaded not guilty.

In support of their case, prosecution examined as many as 11 (eleven) wi tnesses. The two accused-appellants were, then, examined under Section 313 Cr.P. C. and, in their examinations aforementioned, they denied to have committed the offence, which they were alleged to have committed, their case being that of ali bi.

Having found the two accused-appellants guilty of the offence under Sect ion 304 (Part-II) IPC read with Section 34 IPC thereof, the learned trial Court convicted them accordingly and passed sentence against them as mentioned above. Aggrieved by their conviction and the sentence passed against them, the two conv icted persons have preferred this appeal.

I have heard Mr. PP Dutta, learned Amicus Curiae, appearing in Criminal Appeal No. 249 of 2005, and Ms. P Choudhury, learned Amicus Curiae, in Criminal Appeal No. 220 of 2005. I have also heard Mr. D Das, learned Additional Public P rosecutor, Assam.

In tune with each other, both PW4 and PW5 have deposed that on the day o f the occurrence, they, along with each other, were doing, on the road, Tatbati (i.e., weaving by placing instrument) and at that time, Ramesh came from the mar ket and asked them to remove the Tatbati and entered into his house. It is in th e evidence of these two witnesses that thereafter, Ramesh came out of his house, whereupon accused Atul Das called Ramesh Das near him and when Ramesh reached n ear accused Atul, accused Atul caught hold of Ramesh and accused Pradip came and gave blow with a dao on Rmesh’s neck and Ramesh, having sustained injury on his neck, fell down and died on the spot.

Though the defence cross-examined both the witnesses, namely, PWs 4 and 5, nothing could be elicited from their cross-examination to show that what they had deposed were untrue or false. In fact, the defence, while cross-examining t hese two witnesses, admitted involvement of accused Pradip Das in the occurrence by suggesting to PWs 4 and 5 that a scuffle had taken place between Pradip and Ramesh, who had a dao in his hand, but this suggestion remained as a suggestion inasmuch as there is no evidence on record translating the suggestion into evide nce and making the evidence believable. As the evidence of PWs 4 and 5 remained completely unshaken in the cross-examination, their evidence is sufficient to co nclude that Ramesh was killed by the two accused-appellants in furtherance of th eir common intention inasmuch as the accused-appellant, Atul, caught hold of Ram esh and the accused-appellant, Pradip Das, gave a blow with dao on Ramesh’s neck and Ramesh, having received injury on his neck, died on the spot. Close on the heels of the above evidence of PWs 4 and 5, the doctor (PW1 10. 0), who had, admittedly, conducted, on 10-02-2002, the post mortem examination o n the dead body of Ramesh, has deposed, inter alia, that there was cut injury, m easuring 10cm x 2cm x 4cm, on the left side of the neck resulting into massive h aemorrhage and it was due to such haemorrhage that the death was caused.

ness’s narration of the occurrence. Thus, the medical evidence on record completely corroborates the eye wit

As far as the remaining witnesses are concerned, namely, PW1, who is the informant, PW2, PW6 and PW7, who claim to be eye witnesses , it is necessary to note that the defence has successfully elicited from the investigating officer that none of these witnesses had claimed, when their respective statements were recorded by the investigating officer, during investigation, that they had witne ssed the occurrence. Though the learned trial Court has placed reliance on the e vidence of PWs 2, 6 and 7 too, apart from placing reliance on the evidence of PW s 4, 5 and 10, I keep the evidence of PWs 2, 6 and 7 excluded as unreliable, bec ause of the material omission, as indicated hereinbefore, between their previous statements made before the police and the evidence given in the Court.

Even then, what remains unscathered, in the evidence on record, is the e vidence of PWs 4 and 5, which I have already discussed above and whose evidence have received complete support and corroboration from the medical evidence on re cord.

Situated thus, this Court does not find that the learned trial Court com mitted any error in holding the two accused-appellants guilty of having killed R amesh Das in furtherance of their common intention inasmuch as accused Atul caug ht hold of Ramesh and accused Pradip gave a blow with a dao on Ramesh’s neck, wh ich resulted into Ramesh’s death at the very spot, where he was so assaulted. Th ough the two appellants had taken the plea of alibi, the same remained without h aving received any support from the materials on record.

Though the learned trial Court has held that in the absence of the fact that there was any previous enmity between the deceased, on the one hand, and t he two accused, on the other, the accused cannot be held to be guilty of offence under Section 302 IPC, suffice it to point out that when the eye witnesses acco unt of the occurrence clearly prove that the two appellants had killed Ramesh in furtherance of their common intention, in the manner as described hereinabove, the fact that no previous enmity was proved between the deceased and the two acc used was wholly immaterial and is irrelevant. However, as the State has not come in appeal against the conviction of the two appellants under Section 304 Part-I I IPC, I do not deem it appropriate to, now, hold that the accused-appellants ou ght to have been convicted under Section 302 IPC.

In the light of the evidence discussed above, the finding of guilt, reac hed against the two appellants by the learned trial Court, cannot be interfered with at the instance of the present appellants. The conviction of the accused-ap pellants is, therefore, not interfered with.

As far as the sentences passed against the accused-appellants are concer ned, the same being not excessive, unreasonable, harsh or illegal, do not call f or any interference.

s, therefore, fail and the same shall accordingly stand dismissed. This Court does not see any merit in these two appeals. These two appeal

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