Mangala Tanti And 3 Ors vs State Of Assam

A.M. Bujor Barua, J

Heard Mr. A. Ahmed, learned counsel for the appellant. Also heard Mr. M. Phukan, learned Additional Public Prosecutor for the State.The informant who had lodged the ejahar by stating that he had been assaulted had subsequently died and as such we do not have the informant respondent No.2 in the present appeal.

The deceased Shyam Sawtal lodged the ejahar dated 24.07.2012 before the Officer-in-Charge of Bokakhat Police Station stating that at around 7.30 in the evening of 23.07.2012 some 200/250 people of Methoni Tea Estate had apprehended and brought him and his wife from their home on suspicion that they were witches. The ejahar reveals the name of 5 persons who were stated to have been the leader of the group of people who had brought the informant and his wife away from their home. Thereafter they kept them confined in the field of Methoni Puja Mandap and had assaulted them with an intention to kill. In the meantime, the police arrived and after rescuing the informant and his wife and got them admitted to the Bokakhat hospital. Thereafter, they were referred to the Golaghat Civil Hospital for further treatment.

The evidence on record reveals that the informant was initially given treatment at Bokakhat hospital and thereafter, he was shifted to the Golaghat Civil Hospital. About a fortnight later he was released from the hospital and stayed at his home for about two days when he developed some further complications and this time he was admitted to the Jorhat Medical College & Hospital where he died after two days. As the informant subsequently died, the ejahar lodged by him was treated to be a dying declaration of the deceased. In the ejahar/dying declaration the deceased had specifically named five persons under whose leadership the assault was made on him and his wife. Out of the five persons, four had been convicted by the judgment dated 16.03.2016 of the learned Sessions Judge, Golahat, but the person name Dipak Sahu was not convicted.

PW-1 who is the wife of the deceased informant and who was also assaulted along with him in her deposition stated that on the given day while she was proceeding to her house after having a bath in the house of her husband's elder brother, the accused Buda Sahu who was lying in ambush had dealt blows on her back and thereafter, the accused persons namely Bhaya Gowalla, Mangla Gowalla, Mangala Tanti and Budu assaulted her husband and also assaulted her. She stated that her husband was brought to road from home and was assaulted there. She stated that the accused persons assaulted her and her husband with fencing posts which were found on the field of Natya Mandir and thereafter both of them lost their senses and no one came to save them. The police brought them to the hospital by a vehicle of the garden. She deposed that they stayed in Bokakhat hospital for two weeks and thereafter admitted to the Golaghat Civil Hospital where they stayed for about five days and on being released from the hospital they were at home. Later on, when the condition of her husband had worsened he was shifted to the Golaghat hospital and thereafter to the hospital at Jorhat.

In cross, PW-1 stated that the police had not examined her. But we have verified the LCR which included the case diary and from it we find that the statement of PW-1 was recorded under Section 161 Cr.P.C. In her deposition, the PW-1 had stated that the accused persons had brought her and her husband out of their house and thereafter assaulted them and further that the assault was on the back of the PW-1. No further evidence is available as to what nature of injury the deceased and the PW-1 had sustained due to the assault.

PW-2 who is the son of the deceased stated that he had heard about the occurrence and when he went to the police station to find the two injured persons he was informed that they were taken to Golaghat Civil Hospital. He went to Golaghat Civil Hospital and found that the eyes of his father i.e the deceased was swollen. Beyond what has been stated no further evidence had been rendered by the PW-2 as to the nature and extent of the injury that the deceased had sustained.

The other witnesses i.e. PW- 3, 5 and 6 have all arrived at the place of occurrence after it had taken place and therefore, their evidences cannot be treated to be an eye witness account of the occurrence.

PW-4 who was the medical officer at K.K. Civil Hospital, Golaghat where the deceased was subsequently sent for treatment in his deposition had stated that he had seen the following injuries on the body of the deceased when he was given the medical treatment:-

"Description of injury: Multiple abrasions seen just below the bilateral scapular region.

Multiple lacerated injury on both legs.

Size of injury: 4 X 2 X .5 cm and 4 X 1 X .5 cm

Anatomical position of the injury: just below the bilateral side of scapular region.

Nature of injury: simple

Type of weapon: blunt

Age of injury: recent."

The inquest report after the death of the deceased shows the following:-

"Description of Injuries Found On Dead Body (If any)

a) Head-Normal

b) Face- Normal

c) In case of hanging cases the ligature mark to be noted whether circular (Homicidal) or oblique (Suicidal)-

d) Chest-

e) Stomach- Assault injuries seen

f) Limbs-

a) Right hand-

b) Left hand-

c) Right leg- Assault injuries seen

d) Left leg-

e) Private parts-

f) Back- Assault injuries seen

g) Other information like wound's Bruises and Marks of injuries/ Bleeding (if any)-

h) Whether the limbs/body is stiff or loose- Stiff"

As per the deposition of PW-7 Dr. Nitu Kr. Gogoi who had conducted the post mortem examination, the following injuries were found:-

"Injuries:

1) Partially healed contused-lacerated wounds of sizes-2 cm X 2 cm. to 4 Cm X 2 Cm. Present over back of chest and abdomen at places.

2) Partially healed lacerated injuries of size- 12 cm X 5 cm X muscle deep present over outer aspect of right hip joint.

3) No ligature mark around the neck. On dissection, neck tissues are healthy. Cranium and Spinal Canal:- (scalp, skull and vertebrae):-

Scalp:- contusion of size- 10 cm X 6 cm. Present over right fronto-temporal region.

Skull:- healthy

Vertebrae:- healthy

Membrane:- congested, diffused subdural haemorrhage (brownish) present over both cerebral hemisphere.

Brain:- congested.

All other organs are healthy"

As per the opinion of the doctor conducting the post mortem examination the cause of death was due to coma following injuries sustained over the head and all the injuries were ante mortem.

From the ejahar/dying declaration of the deceased, we find that the group of persons under the leadership of the accused persons had assaulted the deceased as well as his wife.

But nothing has been indicated as to in which part of the body the assault had  taken place.

PW-1 stated that she was assaulted on her back but she had not stated as to in which part of his body the deceased was assaulted.

PW-4 who had attended to the injuries of the deceased at K.K. Civil Hospital, Golaghat had stated about the injuries that were found around the scapular region and legs of the deceased.

We specifically take note of that PW-4 had not mentioned about any injuries being sustained by the deceased on his head. The inquest report after his death also does not reveal any injury on the head portion and the injuries stated to have found on the dead body in the inquest report are in conformity with the injuries as mentioned by the PW-4 who had attended to the deceased in the hospital.

The injury report of the doctor who conducted the post mortem examination, finds mention of the injuries present over the back of the chest and abdomen and on the outer aspect of right hip joint. But the doctor who conducted the post mortem examination also refers to the contusion of the size 10 X 6 cm present over the right fronto-temporal region of the deceased. Accordingly, it was the opinion of the doctor that death was due to coma following the injury on the head. We take note of that firstly the mention of the injuries in the right fronto-temporal region had been stated to have existed for the first time by the doctor conducted the post mortem examination, where such injury was neither found by the doctor who gave treatment to the injuries at the hospital and nor by the authority who conducted the inquest. We also take note of that as per the evidence of PW-1, the deceased was in Bokakhat Civil Hospital for about two weeks and thereafter, a further five days in the K.K. Civil Hospital, Golaghat after which he was released and was at home for two days where the condition of his wounds had worsened and was required to be again admitted, this time in the Jorhat Medical College & Hospital where he died after two days.

In view of the head injury not being found on the body of the deceased while he was in the treatment as well in the inquest which was conducted and it having been mentioned for the first time by the doctor who conducted the post mortem examination, we are hesitant to accept that the head injury, if present, was as a result of the assault that had taken place on the deceased on 23.07.2012. Although the doctor says that death was due to coma as a result of the head injury, we find that neither in the medical evidence nor in the evidence of any other witness, there is a mention that the deceased was in a state of coma at any point of time. From the said point of view, the opinion rendered by the doctor who conducted the post mortem examination is found to be inconsistent with the other evidences of the witnesses as well as the medical evidence of the doctor who had given treatment to the deceased.

But again from the ejahar/dying declaration of the deceased as well as the deposition of PW- 1 which remains unconfronted, it is established that the accused persons who had been identified in the dying declaration and others had assaulted the deceased resulting in the injuries that were found on his body. Even if we accept the evidence of PW-1 as well as the dying declaration of the deceased informant we can arrive at a conclusion to the extent that the accused persons had inflicted the assault on the deceased which resulted in the injuries on his back and hip, which again in nature were simple injuries as opined by the doctor giving the treatment .

Accordingly, we are of the view that on the basis of the material on record as indicated above, the accused persons can be held guilty of having committed an offence punishable under Section 323 IPC. Accordingly, having convicted the accused appellant under Section 323 IPC, we sentence to an imprisonment for 1 (one) year. The period of imprisonment already undergone by the accused appellant be set off. If the authorities find that the accused appellant had already undergone an imprisonment which may be equal or more than the sentence imposed, they be released forthwith.

The judgment and order dated 16.03.2016 stands modified to the extent as indicated above.

The appeal is partly allowed. Send back the LCR.