High Court · 2012

2. The case of the prosecution may, in brief, be described thus: On 18.08.2 003, at about 12 noon, while the first informant, Dara Singh Pegu (PW1), son of Umak Pegu, had gone to work in the field, Umak Pegu (since deceased) was present with his wife, Samita Pegu (PW2). His daughter-in-law, Jaya Pegu (PW3), wife of the first informant, had also gone to field. However, when PW3 came back home f rom the field, her father-in-law, Umak Pegu, rebuked her for coming late. Hearin g Umak Pegu rebuking his daughter-in-law, accused Joy Chandra and Mabuk came to the house of the said deceased and questioned Umak Pegu as to why he was quarrel ling with his daughter-in-law. The questioning of Umak Pegu, by accused Joy Chan dra, led to an altercation between Umak Pegu and accused Joy Chandra. Accused Jo y Chandra, then, picked up a spade, which was lying in the courtyard, and hit th e wall of the house of Umak Pegu by means of the said spade. Feeling frightened, Umak Pegu entered into his room and closed the door. However, accused Joy Chand ra pulled the door of the room and tried to enter into the room; whereupon Umak Pegu gave a blow with dao on Joy Chandra’s hand causing injuries on his fingers. At that point of time, co-accused, Mabuk Pegu, arrived there and accused Joy Ch andra, along with accused Mabuk, assaulted Umak Pegu with a rod, which is used f or husking paddy, and also by a piece of bamboo. When Umak Pegu’s wife, Samita ( PW2), tried to intervene and save her husband, she, too, was assaulted by both t he accused. On being so assaulted, PW2 ran away from her house. Seeing her fathe r-in-law being assaulted by the two accused, Umak Pegu’s daughter-in-law (PW3) r an away from her house and came to the house of her neighbour. When Umak Pegu’s son, Dara Singh Pegu (PW1), arrived at home, he found his parents and also his w ife (PW3) absent. PW1, then, started a search for his wife (PW3) and found her ( PW3) at the house of one of his co-villagers, Nuni Pegu, and, on bringing his wi fe (PW3) back to their home, when he (PW1) enquired from his wife, PW3, PW3 repo rted to her husband that Joy Chandra and Mubak had assaulted her parents-in-law and Umak Pegu had died. On the following day (i.e., on 19.08.2003), Umak Pegu’s dead body was found lying in a nearby jungle. PW1, then, lodged a written infor mation with the police. Based on the said written information, Boginodi Police S tation Case No.20/2003 was registered, under Sections 302/201 IPC, against both the accused-appellants.

3. During investigation, police came to the house of the deceased and held inquest over the dead body of Umak Pegu. Police also seized the husking rod and the piece of bamboo, which had been used by the two accused-appellants for assa ulting Umak Pegu and, on completion of investigation, laid charge-sheet against both of them under Sections 302/201/34 IPC. 4. During trial, when charges, under Sections 302 and 201 read with Section 34 IPC, were framed against the accused-appellants, they pleaded not guilty the reto.

5. In support of their case, prosecution examined altogether 8 (eight) witn esses including the doctor. The accused-appellants were, then, examined under Se ction 313 Cr.PC and, in their examinations aforementioned, they denied to have c ommitted the offences, which were alleged to have been committed by them, the ca se of defence being that it was the deceased, who had attacked Joy Chandra with a dao, when Joy Chandra went to the house of the deceased to prevent him from ab using his daughter-in-law, and that the whole case, as alleged against the accus ed-appellants, was false. In support of their case, defence, too, adduced eviden ce by examining two witnesses. 6. However, having found the two accused-appellants guilty of the charges f ramed against them, the learned trial Court convicted them accordingly and passe d sentences against them as mentioned above. Aggrieved by their conviction and t he sentences passed against them, the convicted persons have preferred this appe al.

7. ants, and Mr. D. Das, learned Additional Public Prosecutor, Assam. We have heard Mr. B. D. Goswami, learned counsel, for the accused-appell

8. Before entering into the oral evidence, which has been adduced by the pr osecution for the purpose of proving the charges, which were framed against the two accused-appellants, we refer to the evidence of the doctor (PW7), who had, o n 19.08.2003, admittedly, conducted post mortem examination on the dead body of Umak Pegu. The findings of the doctor read as under: (cid:28)Blood mixed discharge was coming from the mouth and nostrils. Post mortem ::Hypostatic stain was present. Multiple bruise were present over th e chest, left upper abdomen and back. There was haematoma with bruise left parie tal and temporal region. On cranium and spine : Scalp : Haematoma on left parietal and temporal regions. Brain membrane : There was subdural haematoma and bleeding in the left parietal region but membrane was intact. Brain : Brain was congested and bruised in the left parietal region. Thorax : Bruise on the left side of the chest. Abdomen : Bruise on upper abdomen wall. Peritoneal cavity was full with blood. Spleen : Spleen was ruptured causing extensive hemorrhage to the abdominal cavit y. (cid:29) 9. It is in the evidence of the doctor (PW7) that all the injuries were ant e mortem in nature and the death was caused due to shock and hemorrhage as a res ult of the injuries sustained, particularly, rupture of the spleen, which was se rious inasmuch as there was excessive bleeding from spleen of the injured and hi s peritoneal cavity was full with blood, which was reflective of the fact that U mak Pegu had died within half-an-hour of receiving the injury. 10. From the medical evidence on record, it becomes transparent that there w ere multiple injuries on Umak Pegu and even on his abdomen, more than one blow w as given so severely that his spleen got ruptured. 11. Bearing in mind the medical evidence on record, we come to the evidence of the two persons, who have been examined as eye-witnesses to the alleged occur rence of assault on Umak Pegu, the witnesses being Samita Pegu (PW2), widow of t he said deceased, and Jaya Pegu (PW3), daughter-in-law of the said deceased. 12. As far as PW2 is concerned, her evidence is that on the day of the occur rence, she was present at home along with her husband, her son, Dara Singh Pegu (PW1), had gone to the paddy field and their daughter-in-law (PW3), too, had gon e to the field and she came back at noon; but when their daughter-in-law returne d home, her husband rebuked her for coming late and, at that point of time, accu sed Joy Chandra and Mabuk came to their house and questioned Umak Pegu as to why he had been rebuking his daughter-in-law. It is in the evidence of PW2 that the arrival of Joy Chandra and his questioning, as indicated above, led to an alter cation between the deceased and accused Joy Chandra, whereupon accused Joy Chand ra picked up a spade and hit the wall of the house with the said spade. It is al so in the evidence of PW2 that both the accused assaulted her husband on differe nt parts of his body and when she (PW2) intervened to save her husband, she, too , was assaulted by them. It is also in the evidence of PW2 that she, feeling fri ghtened, ran away from her house and, in the morning, on being informed about th e death of her husband, she came back and found her husband’s dead body lying i n a nearby jungle. 13. Close on the heels of the evidence of PW2, PW3, daughter-in-law of the s aid deceased, has deposed that when she came home from the field, her father-in- law rebuked her, whereupon accused Joy Chandra came to her house and asked her f ather-in-law (Umak Pegu) as to why he had been rebuking his daughter-in-law and this led to an altercation between both of them. PW3 has also deposed that Joy C handra picked up a spade lying in the courtyard and hit the wall of the house by the said spade and, on being frightened, her father-in-law entered into the roo m and closed the door, but accused Joy Chandra pulled the door in order to enter into the room, whereupon her father-in-law gave a blow on Joy Chandra causing i njuries on his fingers and, it was at that point of time, that accused Mabuk als o arrived there and, then, Joy Chandra, along with co-accused Mabuk, assaulted h er father-in-law by means of a rod, which is used for husking paddy, and also by a piece of bamboo. It is in the evidence of PW3 that the two accused had also a ssaulted her mother-in-law (PW2) and, out of fear, her mother-in-law (PW2) ran o ut of her house and that she (PW3), too, ran away from her house and when her hu sband returned, she (PW3) reported the incident to her husband. 14. Broadly in tune with the evidence of PW2 and PW3, PW1, son of the deceas ed, has deposed that on the day of the occurrence, when he returned home from th e field, he did not find anyone in his house, where his parents and wife used to live with him (PW1). It is in the evidence of PW1 that on not finding his pare nts and his wife, he started looking for them and found his wife at the house of their co-villager, Nuni Pegu, and, on making enquiry from her (PW3), he was tol d that accused Joy Chandra and Mubak had assaulted his parents and, as a result thereof, his father had died. PW1 has deposed that on the following day, his fat her’s dead body was found lying in the nearby jungle, whereupon he lodged a writ ten Ejahar with the police. We have very carefully and minutely scanned the cross-examination of PW1 15. , PW2 and PW3 at the hands of the defence and we find that their evidence has re mained unshaken so far as coming of the two accused-appellants to the house of t he deceased is concerned inasmuch as PWs 2 and 3 are consistent, in their eviden ce, that after the deceased had rebuked PW3, accused-appellant, Joy Chandra, cam e and started questioning the deceased as to why he was rebuking his daughter-in -law and this led to an altercation between the deceased and accused Joy Chandra . It has also surfaced unscathed from the evidence of PW2 and PW3 that the two a ccused-appellants not merely assaulted Umak Pegu, but also his wife Samita (PW2) , when she tried to save her husband. There is nothing in the evidence on record to show that anyone, other than the two accused-appellants, had come to the hou se of the said deceased and/or had quarreled with him or had assaulted him. 16. Situated thus, there can be no escape from the conclusion that none but two accused-appellants were the ones, who had caused serious injuries, which had been, in the light of the evidence of the doctor (PW7), found on the dead body of Umak Pegu resulting into his death. 17. Though there is no direct evidence to show that the accused-appellants were the ones, who had removed Umak Pegu’s dead body, but they were the ones, wh o had been seen last with the said deceased and, in the context of the facts and attending circumstances of the present case, none but the two appellants had to be held responsible for removing the dead body of Umak Pegu and putting the sam e in a nearby jungle in order to destroy the evidence of the offence, which had been committed by them and to screen themselves from being caught as offenders. 18. Turning to the question as to what offence the accused-appellants had co mmitted, it needs to be noted that none of the two accused-appellants came to th e house of the deceased armed with any weapon. The assault, therefore, which too k place on Umak Pegu, cannot be held to be pre-meditated. In fact, the evidence of PW3 shows that the accused-appellant, Joy Chandra, picked up a spade lying in the courtyard of the deceased and hit with the same merely the wall of the hous e and, on being frightened, Umak Pegu entered into his room and closed the door, but accused-appellant, Joy Chandra, tried to open the door and, it was at that point of time, that Umak Pegu gave a blow with a dao on Joy Chandra’s hand injur ing his fingers. 19. In the backdrop of the facts, which have emerged from the evidence on re cord, it is clear that Umak Pegu was assaulted and killed by the two appellants without any pre-determined mind and, as a result of grave and sudden provocation , on being deprived of their power of self-control. Thus, the two appellants had committed, in furtherance of their common intention, offence of culpable homici de not amounting to murder. However, in the light of the injuries, which had bee n found on the dead body of Umak Pegu, there can be no escape from the conclusio n that they intended to cause Umak Pegu’s death, or else, there would not have b een multiple injuries on the dead body of Umak Pegu and his spleen would not hav e been ruptured so badly that peritoneal cavity was found filled with blood. 20. Thus, the evidence on record was not sufficient to hold the two accused- appellants guilty of the offence of murder punishable under Section 302 read wit h Section 34 IPC. There were, however, sufficient unimpeachable evidence on reco rd proving that the two accused-appellants had committed the offence of culpable homicide not amounting to murder and the offence, so committed, fell within the ambit of Section 304 (Part-I) IPC inasmuch as Umak Pegu was killed in furtheran ce of the common intention of the two accused-appellants. 21. While, thus, the conviction of the two accused-appellants, under Sectio n 302 read with Section 34 IPC, cannot be sustained, they must be held guilty, a nd we do hereby hold them guilty, of offence under Sections 304 (Part-I) IPC rea d with Section 34 IPC and we convict them accordingly. This apart, both the accu sed-appellants are also liable to be convicted for causing disappearance of evid ence under Section 201 read with Section 34 IPC in order to screen themselves fr om being caught as offenders. We, therefore, uphold the conviction of the two ac cused-appellants under Section 201 read with Section 34 IPC. 22. Coming to the sentences, which could have been passed against the accuse d-appellants, we are of the view that in the facts and attending circumstances o f the present case, the two accused-appellants ought to have been sentenced, for their conviction under Section 304 (Part-I) read with Section 34 IPC, to suffer rigorous imprisonment for a period of seven years and pay fine of Rs.1,000/- ea ch, and, in default of payment of fine, suffer rigorous imprisonment for a furth er period of three months. As far as the sentence, for their conviction under Se ction 201 read with Section 34 IPC, is concerned, we are of the view that each o ne of the appellants ought to have been sentenced to suffer rigorous imprisonm ent for a period of three years and pay fine of Rs.500/- and, in default of paym ent of fine, suffer simple imprisonment for a further period of 45 days. We acco rdingly sentenced the two accused-appellants as mentioned hereinbefore. 23. Because of what have been discussed and pointed out above, this appeal p artly succeeds. While the judgment and order, under appeal, shall stand set asid e to the extent that the accused appellant have been convicted under Section 302 read with Section 34 IPC, we uphold their conviction under Section 201 read wit h Section 34 IPC and we also convict the accused-appellants under Section 304 (P art-I) IPC read with Section 34 IPC and we hereby sentence each of them to suffe r, for their conviction under Section 304 (Part-I) read with Section 34 IPC, rig orous imprisonment for a period of seven years and pay fine of Rs.1,000/- and, i n default of payment of fine, suffer rigorous imprisonment for a further period of three months. For their conviction, under Section 201 read with Section 34 IP C, we sentence the two accused-appellants to suffer rigorous imprisonment for a period of three years and pay fine of Rs.500/- and, in default of payment of fin e, suffer simple imprisonment for a further period of 45 days 24. osed of. 25. With the above observations and directions, this appeal shall stand disp Send back the LCR.