Nibaran Mudi And Anr vs State Of West Bengal

Bibek Chaudhuri, J

This an appeal under Section 374(2) of the Code of Criminal Procedure filed by the convicts in Session Case No.1 of 1993 (Sessions Trial No.19 of

1995) assailing the judgment and order of conviction and sentence to suffer imprisonment for life and also to pay fine of Rs.2000/- each, in default

rigorous imprisonment for two months for committing offence punishable under Section 302/34 of the Indian Penal Code.

On the basis of a written complaint submitted by one Subodh Chandra Gorai on 14th June, 1989 alleging, inter alia, that on the self same day at

about 7 a.m his father Prankrishna Garai went to his agricultural land with an agricultural labourer (Bagal), named, Tarani Rajwar for cultivation. The

cousin brothers of the said Prankrishna, namely Manik and Adhir Garai also reached the land with seeds. Immediately thereafter, the appellants,

namely Nibaran Mudi being armed with ‘tangi’ and Bishu Mudi with a lathi in his hand came to the place of occurrence and asked Tarani to

stop cultivation. When the father of the defacto complainant asked the reason as to why they would stop cultivation, Nibaran assaulted him with the

help of tangi on his head as a result of such assault Pran Krishna fell down on the field. When the defacto complainant tried to lift his father from the

ground. Nibaran then assaulted him with the help of tangi on his back and leg. In order to save himself, he fled away from the spot. At that time both

the accused persons assaulted Prankrishna with tangi and lathi. The defacto complainant rushed to the village and informed the incident to the villagers

and his family members.

Pran Krishna was taken to Nadiha Hospital in the district of Purulia where he was declared dead.

On the basis of the said complaint police registered Para P.S Case No.28 of 1989 against both the appellants under Section 302/34 I.P.C and took

up the case for investigation. At completion of investigation, charge sheet was submitted against the appellants under Section 302/34 I.P.C.

After commitment of the case to the learned court of Sessions, it was transferred to the Court of the learned Additional Sessions Judge, 1st Court at

Purulia for trial and disposal.

The learned trial judge framed charge against both the appellants under Section 302/34 of the Indian Penal Code. As the appellants pleaded not

guilty, trial of the case commenced.

During trial, prosecution examined as many as 12 witnesses. The written complaint and the signature of the complainant thereon are marked as

Exhibit-1 and 1/1 respectively. During investigation, police collected blood stain mark and control earth from the place of occurrence and the seizure

list is marked as Exhibit-2.

Exhibit-4 is Post Mortem report of deceased Prankrishna Garai. Exhibit-6 is the certified copy of the decree passed in Title Suit No.58 of 1975

instituted by Pran Krishna Gorai, deceased against the predecessor of the appellants. Exhibit-

15 is the seizure list in respect of a tangi with wooden handle and a bamboo lathi which were seized leading to discovery statements made by the

appellants. The learned Additional Sessions Judge, 1st Court at Purulia held the appellants guilty for committing offence under Section 302/34 I.P.C

and convicted and sentenced them accordingly.

It is submitted by the learned Public Prosecutor that the defacto complainant is the son of the deceased. He lodged FIR after the incident on the

date of occurrence itself. In his evidence, he corroborated the prosecution case. It is ascertained from his evidence that when the appellants attacked

his father, Prankrishna he was present at the place of occurrence. After being assaulted on his head, the father of the defacto complainant fell down

on the ground and he tried to lift his father from the ground. At that time, appellant Nibaran Mudi assaulted him with the help of tangi on his back and

leg. In order to save his life, he fled away from the place of occurrence. PW2 Adhuri Gorai and PW6 Manik Gorai are the cousins of the defacto

complainant. They claimed that Prankrishna was assaulted by the appellants in their presence and they are the eye witnesses of the occurrence. It is

pointed out by the learned P.P that the defacto complainant also received injury on his person. He saw his father being assaulted fatally by the

appellants. There is no reason to disbelieve the evidence of PW1. The evidence of PW2 and PW6 can also not be disbelieved only on the ground that

they are the relatives of the defacto complainant. There is no reason for the defacto complainant to implead the appellants falsely in this case, due to

dispute between them and the appellants over landed property. It is further urged by the learned P.P that the learned Additional Sessions Judge, 1st

Court at Purulia meticulously scanned and appreciated the evidence on record along with the ocular statement of the witnesses, the weapons of the

offence were recovered on the basis of discovery statement made by the appellants under Section 27 of the Indian Evidence Act before the

investigating officer while they were in custody.

It is further submitted by the learned P.P that the deceased was brought dead at Nadiha PHC and death certificate was issued by PW10, Dr.

Amiya Kr. Mondal. The PW7, Dr. Kiriti Bhusan Sinha held P.M examination over the dead body of the deceased and found the following injuries on

his person. On dissection, the autopsy surgeon found fracture of right parietal bone into pieces causing serious injury of brain matters. According to

the autopsy surgeon (PW7), the cause of death of deceased Pran Krishna was due to the effect of head injury which was antemortem and might be

homicidal in nature. PW7 was cross examined in detail. Specific suggestion was made that similar type of head injury may be effected on a person by

fall on the ground. PW7 denied such suggestion and opined that the head injury was caused by sharp cutting weapon.

In view of such circumstances, it is submitted by the learned P.P that on independent consideration of the evidence on record this Court should

hold that the instant appeal has devoid of any merit and it should be set aside.

Learned Advocate for the appellants, on the other hand submits that from Exhibit-5 and Exhibit-6, it is ascertained that a long standing enmity

between them was going on over landed property. There is every possibility of false implication of the appellants due to land dispute. Moreover, in the

instant case one Tarani was the most vital and independent witness who, according to the prosecution went to the agricultural field to sow seeds with

the deceased. But the prosecution failed to examine the said Tarani as a witness during trial of the case. All the witnesses on behalf of the prosecution

who claimed themselves to be the eye witnesses are closely related with the deceased. Therefore, possibility of adduction of false evidence by them

cannot be ruled out. Moreover, admittedly there is long standing enmity between the parties.

It is further contended by the learned Advocate for the appellants that the trial court wrongly held Bishu Mudi guilty for committing offence under

Section 302 I.P.C with the aid of Section 34. Even if the prosecution case is held to be true, there is absolutely no evidence against appellant Bishu

Mudi to hold him guilty for committing offence under Section 302/34 I.P.C.

It is found from the evidence on record that appellant Nibaran and Bishu Mudi went to the place of occurrence together being armed with tangi

and lathi respectively. When the deceased refused to stop cultivation, Nibaran Mudi assaulted him on his head with the help of tangi. He fell down on

the ground. The defacto complainant tried to lift him from the ground. At that time Nibaran also assaulted the defacto complainant with the help of

tangi. The defacto complainant fled away from the spot. While fleeing away, he saw both the appellants assaulting Prankrishna with the help of tangi

and lathi. Such evidence of PW1 was corroborated by PW2 and PW6 who are the eye witnesses of the occurrence.

In Sunny Kapoor vs. State of U.T of Chandigarh reported in AIR 2006 SC 224,2 it is held by the Hon’ble Supreme Court that in order to

establish common intention of several persons to attract the mischief of Section 34, I.P.C, the following two fundamental facts have to be established;

(i) common intention to commit an offence, and (ii) participation of the accused in commission of the offence. If the above two ingredients are

satisfied, even overt act on the part of some of the persons sharing the common intention was held to be not necessary. A finding that the assailant

concerned had a common intention with the other accused is necessary for taking resort to Section 34, IPC. The decision of the Hon’ble Supreme

Court in Nandu Rastogi vs. State of Bihar reported in (2002) 8 SCC 9 and Major Singh vs. State of Punjab reported in AIR 2003 SC 34 2also share

the same principle with regard to application of Section 34 IPC.

In the instant case both the appellants went to agricultural land of the deceased being armed with tangi and lathi respectively. As soon as the

deceased refused to stop cultivation, appellant No.1 assaulted him on the most vital part of his body with tangi causing vital injury. When he fell down,

appellant No.2 also assaulted him with the lathi. The specific overt act committed by both the appellants conclusively point out in favour of common

intention of both the appellants to commit murder of Prankrishna Garai.

In view of the above discussion, the order of conviction and sentence do not call for any interference. However it is submitted by the learned

Advocate for the appellants that they are in custody since 2004. Therefore, upon the appellants serving out the period of fourteen years or more, if an

appropriate application is made for remission, the same shall be considered by the statutory authority in accordance with law and as expeditiously as

may be convenient.

CRA 54 of 2005 stands dismissed.

A copy of this order be made over as expeditiously as possible to the convicts and a further copy thereof be sent to the correctional home where

he is lodged.

A copy of this judgment be sent down to the Court below along with the Lower Court record.