Rupak Roy And Anr vs State Of Assam And Ors

AM Bujor Barua, J

Heard Mr. N. Haque, learned counsel for the appellant and Mr. M. Phukan, learned Additional Public Prosecutor appearing for the State of Assam. By the order of 29.01.2018, it was accepted that service on the informant respondent No.2 is complete. But none appears for the informant respondent No.2. We have been informed by the learned counsel for the appellants that the appellant Munna Barman had died on 13.04.2019 during the pendency of the appeal. Accordingly, the appeal filed by appellant Munna Barman stands abated and we proceed to decide the appeal of the appellant Rupak Roy.

This is an appeal against the judgment and order dated 12.04.2017 of the learned Sessions Judge, Dhubri, Assam passed in Sessions Case No.203/2012, whereby the accused/appellants were convicted under Sections 149/448/302 IPC and sentenced to undergo rigorous imprisonment for one year each and to pay a fine of Rs.1000/- (each) and in default of payment of fine to undergo rigorous imprisonment for another 03(three) months each for committing the offence under Section 149/448 as well as rigorous imprisonment for life and also to pay a fine of Rs.10000/- and in default, rigorous imprisonment for another 01(one) year each for committing the offence under Section 149/302 IPC.

An ejahar dated 08.03.2001 was lodged by Sorubala Devi before the in-charge of Salkocha Police Out Post of Dhubri district inter-alia stating that on 07.03.2001 a three years old radish brown colour cow of a co-villager Dakkhina Ranjan Barman had damaged the chili cultivation in the backside of the house of the informant whereupon her husband had caught hold of the cow and tethered it in the backside of their house. At around 7 p.m. the accused persons named in the ejahar trespassed to their house and after hurling abuse and assaulting her husband, took away the cow. At about 10.00 p.m., the accused persons armed with dao, daggers etc forcibly trespassed into their house once again and after injuring her husband Santeswar Barman with the weapons that they were carrying, had pulled him outside the house and when the other wife of Santeswar Barman and the informant had offered their resistance, the accused persons pushed them to the ground and dragged away their husband to some place by striking him with dao and dagger repeatedly. The informant further stated that thereafter they searched for their husband for the whole night and at last came to know that the accused persons had handed him to the police out post. As in the meantime the husband of the informant Santeswar Barman had died, the appellants were charged with the offence punishable under Sections 147/148/149/448/302 of the IPC.

PW-1 the informant in her deposition had stated that at about 11 p.m on the day of occurrence, the accused persons entered their house and dragged out her husband and took him to a club house where they killed him by giving several blows with dao. PW-1 further deposed that the accused persons had cut the body of her husband into several pieces and when she went to the club house, she saw the accused persons were hitting her husband with dao and again reiterated that they had cut the body of her husband into pieces. She also deposed that when she saw the incident, she became senseless, but before she became senseless, she saw the accused persons were cutting her husband with a sharp dao. On the next day, the ejahar was lodged before the in-charge of Salkocha Police Out post. In cross examination, PW-1 stated that when the accused persons had taken away her husband, then she and others started shouting, but the neighborhood people did not come out. It was stated that the incident occurred at night at about 10/11 p.m. and it was a dark night. She also stated that the police out post was about ½ mile away from her residence and there were several houses on both sides of the road, which goes towards the place of occurrence. She again reiterated that when the accused had taken away her husband, she and Kamala Devi started shouting but nobody came as the people were sleeping in the night. She also stated that the place of occurrence is about 100/150 meters away from the road. She also stated that she had stated before the Investigating Officer that she saw the accused persons killing her husband and they became senseless. Before being senseless, they were crying and shouting. She reiterated that when she saw the incident of killing, she became senseless and did not know what had happened thereafter.

PW-2 Kamala Devi, the other wife of the deceased, who was along with PW-1 as per her deposition, stated that on the night of occurrence, the accused persons came to their house and dragged out her husband and they took him to a club house name Burababa Club. She deposed that they followed them as their husband was forcibly taken away from their house by the accused persons. PW-2 further deposed that the accused persons had killed her husband and they saw the accused persons cutting her husband into pieces by a sharp dagger like weapon. She further deposed that the accused persons have brutally killed her husband and when she saw blood, she became senseless. In cross examination to a suggestion, she stated that it is not a fact that she did not state before the Investigating Officer that she followed the accused persons towards the place of occurrence. She also stated that she resides in the same house as that of PW-1, but in a separate room. She reiterated in cross examination that when the victim was taken away by the accused persons, they followed and when she saw the accused persons hitting the victim, they became senseless. She also reiterated that when they shouted after the victim was taken away, nobody came.

In respect of the evidence of PW-1 and Pw-2, it is noticed that both the witnesses state that the accused persons came and assaulted their husband in the house, then dragged him away to another place where they had dealt the blows with the sharp cutting weapon. But who were the accused persons have neither been stated nor the witnesses had made any attempt to state as to who they can be. From the point of view that the witnesses had not identified any person as to who had committed the offence, no reliance can be placed on the evidence of PW-1 and 2 in arriving at a conclusion that it is the two accused appellants who were involved in the incident. Further although PW-2 states that after their husband was taken away they had followed the accused persons, but there is a suggestion in the cross examination that she had not stated before the Investigating Officer that she had followed the accused persons towards the place of occurrence. When the same question was put to the Investigating Officer in his cross examination, the Investigating Officer stated that PW-2 Kamala Devi had stated before him during investigation that she had followed the accused persons towards the place of occurrence.

But we have verified the statement made by PW-2 under Section 161 Cr.P.C before the police from where it can be seen that PW-2 did not state before the police during investigation that she had followed the accused persons towards the place of occurrence. Accordingly, in spite of the incorrect deposition on oath being made by the Investigating Officer, we do not accept the statement of PW-2 that she had followed the accused persons up to the place of occurrence. Another reason for arriving at such conclusion would be that PW-1 and 2 were both together at the time of the incident and PW-1 nowhere stated that they had followed the accused persons, whereas the PW-2 makes an attempt to state that both of them had followed the accused persons. Secondly, PW-1 in her deposition had stated that after the accused persons had taken away their husband, both she and PW-2 had shouted, but as it was late in the night, no one came forward. From the said deposition of PW-1 also it can be inferred that PW-1 and 2 had not followed the accused persons up to the place of occurrence.

The doctor who had conducted the postmortem examination on the deceased, while deposing as PW-8 had stated the following injuries to be present on the deceased:-

"There was a haematoma present over the right temporal region. Size 3cm x 3cm. There was a liniar fracture on the fronto temporal region of the skull on the right side. Size 5cm x ½ cm X bone depth. Blood clots were seen. The layers of the membrane were torned. There was a subdural haematoma present size 10 cm x 6 cm. The brain matter was lacerated and blood clots were seen size 10 cm x 6 cm. The injuries described are ante mortem in nature."

The injury report clearly reveals that haematoma was present on the right temporal region being 3cm x 3cm in size and there was a liniar fracture on the fronto temporal region of the skull on the right side of 5 cm x ½ cm into bone deep size and further subdural haematoma was present of size 10cm x 6cm. The injury report clearly reveals that there was only one injury on the deceased. The doctor had further expressed the opinion that the injuries might have been caused by a blunt object.

When we look into the medical evidence with that of the deposition of PW-1 and 2 that they had seen the accused persons inflicting several blows with a dao and cutting him into pieces, is therefore have to be accepted to be an incorrect and false deposition. From all the aforesaid aspects, we are unable to accept the projected eye witness account as deposed by PW-1 and 2. Other than PW-1 and PW-2, none of the witnesses make a claim that they have seen the occurrence.

But PW-6 in his deposition had stated that on the day of occurrence he was in his grocery shop. Although he heard some hue and cry near his shop, but he did not come out as he was busy in selling the items in his shop to the customers. Later on, after he had his dinner, he went to sleep in his shop itself. While he was sleeping, the accused Rupak Roy came to him and told him that the husband of the informant was caught near a club called Burababa while he was stealing cows in the night. PW-6 further states that the accused told him that the husband of the complainant was nabbed as a cattle lifter and therefore he i.e. the accused Rupak and others had assault the thief, because of which the person concerned received grievous injuries. To a suggestion in cross examination, PW-6 stated that it is not a fact that he did not state before the police that accused Rupak came to him and told that he had assaulted the deceased. But in the cross examination of the Investigating Officer, no such confrontation was made by the defence to such statement of PW-6 as regards the extra judicial confession made before him by the accused Rupak. In the circumstance, we do not find any reason as to why we should not accept the evidence of extra judicial confession being made before the PW-6. The extra judicial confession made before PW-6 is as follows:-

"The husband of the complainant was caught while stealing cows in the night. The accused told me that the husband of the complainant was nabbed as a thief of cows and, therefore, he and others assaulted the said thief."

When the evidence of PW-6 refers that accused Rupak had told him about the incident, the extra judicial confession that the accused told him that the husband of the informant was nabbed as cow lifter and therefore he and other assaulted him, would have to be understood that it was the accused Rupak, who along with others had assaulted the deceased. Again we are confronted with the same situation that from the evidence of PW-6, it cannot be ascertain as to who were the others along with the accused Rupak, who had assaulted the deceased.

As regards the accused Rupak Roy all that the extra judicial confession states that he Rupak Roy and others had assaulted the deceased. Again when we look at the injuries of the deceased as indicated above, there was only one injury found on the right temporal region of the deceased and therefore it can be a case where there was only one fatal blow being given on the deceased, which had caused his death. When we believe the extra judicial confession that the accused Rupak and others had assaulted, it again cannot be ascertained as to who between the accused Rupak and the others had given the fatal blow causing the injuries on the right temporal region, which had resulted in the death of the deceased. In the absence of such definite material, even if we accept the extra judicial confession, what we can conclude is that he accused Rupak also had assaulted the deceased, but without a definite conclusion that the said assault had resulted in the single fatal blow which caused the death. In the circumstance, we only accept that the accused Rupak Roy had also participated in the assault without ascertaining the nature of injuries that he had caused and accordingly he can be held guilty only of an offence under Section 323 IPC.

We have also taken note of that by the judgment and order dated 12.04.2017 of the learned Sessions Judge, Dhubri in Sessions Case No.203/2012, the accuseds Rupak Roy and Munna Barman were convicted under Sections 448/302/149 IPC. In order to bring an offence within the purview of Section 149 IPC, it is necessary for the prosecution to prove that there was an unlawful assembly and there was a common object of the unlawful assembly which had resulted in the offence. Further in order to form an unlawful assembly, there is a requirement of assemble of at least five persons. From the evidence on record, we do not find that there was an assembly of five persons and therefore we cannot conclude that there was an unlawful assembly. In the absence of any unlawful assembly, we again cannot conclude that the incident involved can be brought within the purview of Section 149 IPC. In the circumstance, we are unable to sustain the conviction of the accused appellants under Section 149 IPC.

Although the PW-1 and 2 deposed that the accused persons had entered their house and dragged away their husband, but again we are confronted with the situation where the accused persons have not been named other than describing that the person concerned is the accused person. From the said point of view, we are again cannot conclude that it is the accused Rupak Roy who had entered the house of the informant and dragged away their husband. Consequently, we also cannot arrive at a conclusion that any offence under Section 448 IPC has been proved in the instant case.

In the circumstance, we set aside the conviction of the accused appellants under Sections 448/302/149 IPC as convicted by the learned Sessions Judge, Dhubri in Sessions Case No.203/2012. But as regards the accused Rupak Roy, we find that his assault on the deceased as per the extra judicial confession can be accepted, but again without conclusion that such assault had resulted in the single fatal blow resulting the death of the accused.

Accordingly, we convict the accused Rupak Roy under Section 323 IPC. It is stated that accused Rupak Roy has been in prison for a period of approximately 12 months 20 days. As he has been convicted under Section 323 IPC where the maximum sentence is of one year, we accordingly set at liberty the accused Rupak Roy by sentencing him to the period of imprisonment he had already undergone.

The bail bonds of accused appellant Rupak Roy stands discharged.

The appeal stands allowed to the extent indicated above.

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