Khagen Deka And 3 Ors vs State Of Assam

AM Bujor Barua, J

Heard Mr. A. Ahmed, learned Amicus Curiae appearing for the appellants and Ms. S Jahan, learned Additional Public Prosecutor appearing for the State of Assam. Service report of the Officer-in-Charge of Dimakuchi Police Station shows that notice was served on the informant respondent No.2 on 04.03.2016. In spite of such service, none appears for the respondent No.2.

This is an appeal against the judgment and order dated 11.12.2015 of the learned Sessions Judge, Udalguri, passed in Sessions Case No.155(U)/2012, whereby the accused appellants were convicted under Section 302/149 IPC and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.1000/- each and in default of payment of fine, to undergo further rigorous imprisonment for 01(one) month. Being aggrieved, the appellants have preferred this appeal.

An ejahar dated 04.07.2007 was lodged by Rita Mani Medhi before the In-charge of Dimakuchi Police Outpost stating inter-alia that around 6.00 a.m. on the given day, when her husband Kukheswar Medhi was ploughing their field, the persons named therein in a planned manner suddenly attacked her husband with lathi, spear, dagger etc without any reason. Thereafter the injured was taken to Tangla Government Hospital by some of the villagers, where he died. Accordingly the appellants herein were charged of causing death of the husband of the informant and thereby committed an offence punishable under Sections 302/149 IPC.

The PW-1 Rita Mani Medhi in her deposition stated that prior to the occurrence, there was a dispute between the accused persons and the deceased over a cultivable plot of land and for the purpose a Bichar was also held in the village. In the Bichar, it was decided that the accused persons give the possession of the land to the deceased side. As the possession was not handed over, a few days later, her husband had ploughed over the land, which was till that time under the possession of the accused persons. The witness stated that when she went to provide tea to her husband around 6.00 a.m, she saw the accuseds Khagen, Bolin, Gobinda Deka, Rudra Deka, Primila Deka, Joychandra Deka, Sarat Deka and Kandarpa Deka were assaulting her husband with lathi, spear and dagger. When she went near, the accused Indra had threatened to kill her by showing a dagger. She stated that her husband had sustained injury on his head, which was caused with a dagger and also fracture in his leg and both hands. When the local people started coming, the accused persons fled away from the place of occurrence.

PW-2 Monika Medhi who was examined as a child witness, in her deposition stated that around 6.00 a.m. when the occurrence took place, she and her brother had gone to the field with their mother for providing tea to their father. Upon reaching, they saw the accused persons were assaulting their father with dao, lathi, spear and dagger. The witness stated that the accused Indra was armed with a dagger, Gahin had a spear in his hand and Khagen had a dao, Pramila was holding a pestle and Sarat, Joychandra and Kandarpa were armed with lathis. She also stated that the accused Indra had threatened her mother that he would cut her after five years with a dagger. In cross examination, PW-2 stated that she had learnt from her mother that she is about 12 years old and further that her mother told her how to give statement in the Court and further that except for that given day she had never gone to any Court or police station.

PW-3 Lankeswar Medhi, who was about 10 years when the deposition was made, stated that he along with her sister who was two years older to him and his mother had gone to the field to provide some tea to their father. Upon reaching the place, he saw that accused persons who were named, were assaulting his father with lathi, spear, dagger and pestle. The witness also stated that when they were crying, the accused Indra told them that even after five years he would cut his mother with the same dagger with which he had cut his father.

PW-4 Golap Deka, who was ploughing in the field at a distance of about 100 meters stated that Sarat Deka, Maju Lara and younger son Joychandra and Gajendra went to the field where the deceased was ploughing and prevented the deceased. When the deceased continued with his ploughing, the accused Sarat Deka assaulted him with a lathi on his head and the deceased ran away from the place in the direction where the witness was ploughing. Then all the accused persons chased him and deceased was assaulted by accused Indra Deka near the cultivation of the witness. The deceased fell down on the ground. The witness stated that he also saw a dao tied in the waist of Indra Deka and Khagen and Indra had dragged the deceased to the land where the deceased was earlier ploughing. Upon a hue and cry being raised, the other family members of the deceased came to the place of occurrence. Then the accused persons ran away from that place.

The Investigating Officer Khagen Deka had stated that the witness PW-1 Rita Mani Medhi had not stated before him that the accused Indra had threatened to kill her by showing a dagger. He also stated that the PW-2 Monika Medhi had stated before him that after sometime, she heard that their co-villagers Khagen Deka and his sons and wife had been assaulting his father. He also stated that the PW-2 Monika Medhi had not stated before him that accused Indra was armed with a dagger, Gahin was armed with a spear, Pramila was holding a Pestle in her hand while Joychandra and Kandarpa had lathis in their hands. He stated that the PW-3 Lankeswar Medhi had stated before him that before he got up from bed, his mother had raised hue and cry that the co-villagers Khagen, Gahin etc had assaulted his father. The Investigating Officer deposed that PW-3 had not stated before him that he had gone to the field to give tea to his father. The Investigating Officer further stated that the PW-4 Golap Deka had not stated before him that the accused Indra had assaulted the deceased with a lathi near the gourd cultivation of the witness and that he had a dao tied in his waist.

The medical evidence of PW-7 shows the following injuries on the body of the deceased:-

"INJURIES

Penetrating injury on left leg at 3 places. One at upper then on middle and lower part anterior left. Size 0.5 x 0.5 cm. then multiple fracture of left tibia and fibula present.

Fracture of right humorous in upper part with penetrating injury on right shoulder. Size 0.5cm x 0.5 cm.

Penetrating injury at right ankle joint. Size 0.5 cm x 1 cm.

Blood in the peritoneal cavity present. Greater corveture of stomach and omentum injured with rupture of vessels.

One abraded haematoma present on occipital region of scalp present. Size 2cm x 2cm."

When we take a look at the evidence of PW-4, we find that the witness is a natural witness, who was ploughing on the adjacent plot of land about 100 meters away and he could see the incident. Further after being hit with a lathi on his head by the accused Sarat Deka, the deceased started running towards the field where the witness was ploughing and therefore the incident thereafter would be even more clearly visible to him. PW-4 further stated that upon seeing the occurrence he had raised hue and cry because of which the other family members of the deceased had arrived at the place of occurrence. He further stated that then the accused persons ran away from the place, which we would have to understand that the accused had fled away after the other family members of the deceased had arrived at the place of occurrence. The evidence of PW-4 is also not inconsistent with the evidence of the Investigating Officer who stated that the PW-2 Monika Medhi had stated before him that after some time she heard that their co-villagers Khagen Deka and his sons and wife had been assaulting her father. The expression 'had been' is an indication that the occurrence of the assault took place over a period of time and as PW-2 immediately thereafter went to the place of occurrence with her mother, her eye witness account of the incident would have to be viewed from the said perspective that there is a possibility that she may have witnessed some part of the occurrence. The evidence of PW-4 also appears to be consistent with the evidence of PW-1, who is the wife of the deceased, who also stated that when she went to the place of occurrence with her daughter and son i.e. PW-2 and Pw-3, she saw the accused Khagen, Bolin, Gobinda Deka, Rudra Deka, Primila Deka, Joychandra Deka, Sarat Deka and Kandarpa Deka were assaulting her husband with lathi, spear and dagger. As PW-1 had also gone to the place of occurrence with PW-2 while the assault was going on, the eye witness account of PW-1 that she had seen the aforementioned persons assaulting her husband also cannot be totally disbelieved.

From the evidence on record, as indicated above, it is discernible that all the prosecution witnesses namely PW-1, PW-2 and PW-4 had seen and identified the presence of the accused persons in the place of occurrence and further that they were assaulting the deceased. The injury report as deposed by the PW-7 Dr. Pramod Deka, who had conducted the postmortem examination showed that the deceased had suffered the aforementioned four injuries out of which the injury on the head appears to be more serious in nature, which shows the intention of the accused persons to cause death to the deceased, although it cannot be said with certainty that the other three injuries also ultimately would not have lead to death to the deceased.

Further, the evidence on record by the prosecution witnesses and also as stated by the accused persons in their statement under Section 313 Cr.P.C establishes that there was a land dispute between the accused persons and the deceased side over a plot of land where the land was actually in possession of the accused persons, but it was being ploughed forcefully by the deceased. Further, the dispute continued for some time prior to the incident, which also resulted in a village Bichar on the issue. It is also the admitted position of the PW-1 being the wife of the deceased that her deceased husband was ploughing the field when at that point of time the land was actually in possession of the accused persons.

The evidence of the prosecution witnesses, more particularly PW-1, Pw-2 and PW-4, where PW-4 is an independent witness, who was ploughing in the adjacent field shows the presence of the accused appellants at the place of occurrence and also their participation in the assault on the deceased, which had resulted in his death.

Section 141 of the IPC provides that an assembly of five or more persons is designated an unlawful assembly, if the common object of the persons composing that assembly is, amongst others, to commit any mischief or criminal trespass, or other offence or by means of criminal force, or show of criminal force, to any person, to take or obtain possession of any property. In the instant case, the evidence on record satisfies both the condition that the persons whose presence had been established had formed an assembly with the object to commit a mischief or criminal trespass or any other offence and also to take or obtain possession of any property by means of criminal force or show of criminal force to any person.

The evidence of PW-1 is clear that the deceased was ploughing a plot of land which admittedly according to the witness was in possession of the accused persons, which again as per the decision in the Bichar was required to be given by the accused persons to the deceased. Further the evidence on record also establishes that the accused persons upon forming the assembly had used criminal force as well as assaulted the deceased which satisfies all the requirement of the aforesaid two conditions of Section 141 IPC. Accordingly, we are of the view that the prosecution witnesses had established the constitution of an unlawful assembly.

The evidence on record also shows that the persons comprising of the unlawful assembly had also assaulted the deceased with weapons like lathis, dao etc and such assault had resulted in the four injuries as described hereinabove. The act of the accused persons in forming the assembly and assaulting the deceased resulting in the injuries as deposed by the PW-7 shows that upon formation of the unlawful assembly, the accused persons also formed a common object to be achieved. In view of the above, we are of the view that all the ingredients of Section 149 of the IPC has been satisfied in the present case in order to bring the act of the accused persons within the provision of the said section. As the act of the appellants apparently comes within the purview of Section 149 of the IPC, no further requirement is to be established by the prosecution as to individually which of the accused persons had caused which of the injuries on the deceased person, so as to evaluate their individual liabilities. It will be sufficient to take note of that one of the injuries was on the head of the deceased, which is a vital place satisfies the requirement that the accused persons had the intention to cause death.

Although we can take note of that the evidence of PW-4 which remains un-confronted that accused Sarat Deka had inflicted a lathi blow on the head, whereas the accused Indra was carrying a dao in his possession, but as we have brought the act of the accused appellants within the purview of Section 149 IPC, we do not further go to the said question to actually identify as to which of the accused had inflicted which of the possible blows on the deceased.

But at the same time we also take note of that there was a continuing quarrel between the parties over a plot of land, which ultimately resulted in the accused persons assaulting the deceased, whereby the death was caused to him. Considering the said factor, we bring the act of the accused persons within the purview of exception 4 to Section 300 of IPC and accordingly form a view that the act of the accused appellants is not a murder.

It being so, we are of the view that the act of the accused appellants in causing the death of the deceased amounts to a culpable homicide not amounting to murder. But at the same time, we also take note of that because of the injury as deposed by the doctor conducting the postmortem examination which was on the head portion of the deceased and the head being a vital part, we form the view that the accused persons while assaulting the deceased also had the intention to cause his death.

Accordingly, we bring the act of the accused appellants in causing the death of the deceased to be under Section 304 Part-I of IPC. Accordingly, the accused appellants are convicted for an offence under Section 304 Part-I IPC and we sentence all the accused appellants for a rigorous imprisonment of 07(seven) years by retaining the fine of Rs.1000/-each imposed by the learned Sessions Judge, Udalguri in its judgment dated 11.12.2015 in Sessions Case No.155(U)/2012 and in default thereof, a further rigorous imprisonment for one month.

The judgment and order dated 11.12.2015 of the learned Sessions Judge, Udalguri in Sessions Case No.155(U)/2012 stands modified to the extent indicated above.

The appeal is partly allowed.

Send back the LCR along with a copy of this judgment immediately.

Before parting with the record, we appreciate the valuable service rendered by Mr. Azad Ahmed, learned Amicus Curiae. Accordingly, it is directed that an amount of Rs.7,500/-as legal fees be paid to him by the High Court Legal Service Committee upon production of a copy of this judgment and order.