Jogendra Ch. Das and Others vs State of Assam

V.D. Gyani, A.C.J.

This appeal is directed against the judgment dated 31.5.88 delivered by the Sessions Judge, Cachar, Silchar in Sessions Case No. 53/87 thereby holding the accused Appellants guilty of offence punishable u/s 304 Part II, IPC read with Section 149 IPC and sentenced them to undergo two years R.I. with fine of Rs. 500/- each, or in default in payment of fine, to suffer R.I. for 1 month. It is not indicated in the judgment if the sentences are to run concurrently.

Prosecution case, as can be gathered from the FIRExt.1, was that on 22.5.86 around 11 P.M. the accused-Appellants came to the house of the deceased, called him out and questioned him about alleged theft of a earring of the daughter of one of the accused, namely, Akkoi. It was denied by the deceased as well as his wife, but this denial did not satisfy the complainant. The incident was proceeded by a ''Bichar'', a community meeting to resolve the dispute which was not attended by the deceased. The accused-Appellant and the deceased are close relations, being first cousin. It was around mid-night that he was called out of his house and given a good thrashing of kicks and blows so much so the deceased started bleeding profusely from his nostril. Somehow the night passed. It was on the next day i.e. on 23rd evening that he started developing some symptoms. He vomited blood and was rushed to hospital where he succumbed to the injuries. On these allegations an ejahar Ext. I was lodged at Katigorah Police Station resulting in registration of a case under Sections 147/149/447/302 IPC. On completion of investigation the accused-Appellants were charged and tried for the above offence. Their defence at the trial, as can be gathered from their statements recorded u/s 313 Code of Criminal Procedure and the trend of cross-examination was plain denial of the prosecution story, dubbing it as false. Trial Court, however, found them guilty and sentenced them to terms of imprisonment as already noted above. Hence, this appeal.

Mr. B.L. Singh, learned Counsel for the Appellants has assailed the conviction recorded against the Appellants on the following grounds-(i) the FIR (Ext.I) was belated; (ii) eye-witnesses named therein have not been examined by the prosecution and the trial court failed to draw averse inference against the prosecution on that count; (iii) that the medical evidence of PW 9 does not at all support the prosecution case, the trial court was in error in over looking this material infirmity in the prosecution case: (iv) prosecution witnesses being close relations of the deceased are interested in implicating the accused Appellants; and (v) that Sections 147 and 149 IPC is not attracted to the facts of the present case, at best the accused Appellants can be held liable for their individual acts alone and not vicariously held responsible for the acts committed by others. This constructive liability has been erroneously invoked by the trial court.

Learned Public Prosecutor appearing for the Respondent State on the other hand maintained that the conviction and sentence as recorded by the trial court is well supported by reliable evidence. There is no such infirmity in the case as to call for any interference whatsoever.

The first question that has been raised by the learned Counsel relates to the Ejahar (Ext.I). No doubt there is delay, but the question is, whether the delay is such as to prove fatal to prosecution case? Incident having taken in the midnight intervening 22nd and 23rd, considering the fact that the symptoms of injuries were demonstrately clear so as to ascertain any action against the accused who were none else the kith and kin of the deceased, a natural inhibition and reservation as in mind for lodging report against such close relations was but natural. It was only after the death of Makhan that the report was lodged. Learned counsel for the Appellants placing reliance on a judgment of the Supreme Court as reported in Thulia Kali Vs. The State of Tamil Nadu, has urged that where delay is more than two days, it would be unsafe to base conviction on such-evidence and report. As a proposition of law there can be no quarrel what a promptly lodged F.I.R. does inspire confidence and delay in lodging F.I.R. raise doubt if delay is not explained by any cogent circumstance. Every case turns on its situational facts. In Thuliakali (Supra) there was suspicion about the accused. No one in the village had been informed of the incident and the police station was just two miles away from the place of occurrence. It is in this backdrop of facts that the Apex Court propounded the need for prompt lodging of F.I.R.

Now, adverting to the facts of the case at hand, deceased Makhan was the nephew/cousin of the accused-Appellants. He was severely beaten up by kicks and blows, on the night of 22nd/23rd, at that point of time no one could have foreseen the disastrous consequence of this beating. The matter was entirely and exclusively within the family fold and same considerations prevail with the injured and his wife, not to rush to the police station. There is nothing unusual about it. Even in the ordinary course of human relationship, even if aggrieved by the beating, people generally do not rush to police station. It was only after having realising the ruinous affect of beating that lodging of F.I.R. was thought of and was actually lodged on 24th. The police station is 18 Kms away from the place of occurrence as can be seen from the FIR Ext.I. The younger brother of the deceased PW 2 although stated about his presence, but he was not available at the house at the time of incident, who would have rushed to the police station at the dead of night. PW 4 Anjali Rani Das is the sister of the deceased. There was no adult male member male member left in the family who could have taken any prompt action. The other uncle and cousins were obviously busy to extend help to the injured and his female.

Learned counsel appearing for the Appellant argued that Sections 147 and 149 IPC is not attracted to the facts of the present case. Law on the point is well settled. It is the evidenciary aspect that needs to be considered. All the accused-Appellants coming together at the dead of night, one of them knocking at the door calling the deceased, dragging him out and accused Jogesh Das ordering others to give him a good thrashing. Two of the accused fell down the deceased in the ground while others squatted on his chest and started giving blows. All these acts, viewed in their totality, are indicative of bearing a common intention and object. The wife of the deceased came to the rescue, but she was pushed away. Learned counsel referring to the sketchmap (Ext.3) showing the compound as a whole where the house of the accused and the deceased are situated. It is nobody''s case that any one of those uncles/cousins came forward for the rescue of the deceased. Their case is one of outright blatant denial. The wife who rushed for rescue of her husband was not only prevented but was dragged aside. All these factors clearly establish the essential ingredients of Section 141 IPC and then-consorted act fully attracts Section 149 IPC. It was urged by learned Counsel for the Appellant mat offence u/s 447 IPC has not been made out, although the sketch map (Ext.3) strictly speaking is not admissible in evidence. It is nothing but a statement made to the investigating officer during the course of investigation. It can be made use of only to the extent of depict to the actual condition obtaining at the place of occurrence and as observed by the I.O. himself.

Since it has been referred by the learned Counsel for the Appellant that the houses of the accused Appellants and that of the deceased, the place of occurrence, form compact common conglomeration still there is separate identity of the house of each of the Appellants and the deceased. It is not a Englishmen''s house which has common castle, the deceased and the accused were living in their houses at Sripur can also equally claim their house to be their own castle and it can not be allowed encroach or trespass open. Ingredients of Section 447 are to be found in Section 441 which defines criminal trespass. Section 441 runs as under:

Whoever enters into or upon property in possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, is said to commit ''criminal trespass''.

Here, knocking at the door at the odd hour of mid-night with clear intent to commit offence, and ingredients are fully made out.

The other point raised by the learned Counsel for the Appellant relates to medical evidence and it is incompatible with the occular version of the case. The finding recorded by the PW 9 in his post mortem examination report are significant. Though PW 9 in his evidence has not elaborated the same to the extent expected of him as honest and expert witness, it appears that the report has been submitted in a very slip-shod manner rather an attempt is made to screen the real evidence coming to the fore.

Let us have a look on the finding recorded by the PW 9. What prevented the witness from saying as to why there was congestion on pleurae, lung, heart, spleen and kidney? If PW 9 could not explain the congestion of those vital parts of the body, what learned Public Prosecutor appearing for the State was doing? Was it not his duty to ask the witness to explain his findings? He may not be performing his duty, was not the duty of the Court to have ask PW 9 about connotation of findings recorded by him. If the kidney, spleen, pleasure etc were congested it should be expected of an ordinary man of prudence to have questioned to the doctor if he had failed in duty in not explaining the congestion in such a vital organ, is not an ordinary phenomena. It is a case of not mere failure, rather it is indicative of a calculative attempt at destroying the rule of evidence. Such a witness deserves to be prosecuted for offence punishable u/s 201 IPC. Visceras was preserved, but the report was not brought to the notice of the doctor performing autopsy. May be, it was negative so far as common test of poisoning is concerned. It was, therefore, all the more important for the witness PW 9 to explain his findings, the P.P. with little application of mind could have elicited from the witness the symptometology of congestion. They may all fail, but the presiding officer of the Court has also failed. The criminal trial is not a fairy tale, it is ought to be controlled by the presiding officer of the court more so when such so-called expert witness try to confuse the truth. A finding which was too apparent that the victim was bleeding from nonstril was enough to put any witness on his guard, and it was the duty of the forensic pathologist (a subject which is not even taught) to trace the origin, cause of this bleeding. It is only the medical officer performing the post-mortem examination who could find out the cause. With these glaring lapse on the part of the witness as well as those concerned with the administration of criminal justice, it would be nothing but a sort of travesty of justice, if the occular version as given out by the witness is rejected on the count that medical evidence does not support. Although there is ample support available, the implicit external'' congestion of organs instead of being made explicit and expected is sought to be suppressed.

There is no reason why PWs 2, 4 and 6 should be disbelieved, simply because PW 2 stated that PW 3 was present, whereas he was not, at the time of occurrence. That is not a ground for rejecting her testimony as a whole. PW 3 does not claim to have seen the incident. He is honest enough in admitting the fact that on his return he was narrated the incident by P.W 2. If he had also claimed that he was present and witnessed the incident, the matter would have been different. During the course of his submission, the learned Counsel referred to the fact that deceased Makhan died as his maternal uncle''s place. Here, again the plain fact is that on his way to hospital he had gone to the house of PW 10, his maternal uncle. It is not as if the place of death and place of occurrence are the same or the place of occurrence is thereby ruled out and it was there that he vomitted blood. If the evidence of PW 10 is read parallel to the findings, the medical report and evidence, there remains no doubt about the truthfulness of the statement as made by PW 2. There is by and large substantial and inter se corroboration of all witnesses, although PW 2 on her own needs no corroboration as such.

Offence u/s 304 Pt. II is punishable with life imprisonment or 10 years R.I. Going through the impugned judgment as a whole, there is not a single such extenuating circumstance worth considering for applying Section 304 Part II IPC. The only indication is to be found in paragraph 6 of the impugned judgment that the accused persons are near relations of the deceased and they are the sole bread earners. Now, at this distance of time any interference even in the matter of sentence would neither be expedient nor desirable. The conviction and sentence of imprisonment as imposed by the trial court are maintained. The genesis of the case made against false accusation of wife of the deceased and the ''Bichar'' held by the Appellants was not attended by the deceased and it was for that reason that he was dragged out of his house and beaten to death, imposing a fine of Rs. 500/- each is rather an apology for such sentence.

Mr. B.L. Singh has also referred to Mitter Sen and Others Vs. The State of U.P., This case turns on its own fact. Such is not a case obtaining in the instant case. The sentence as imposed by the trial court is confirmed. The Appellants who are on bail to surrender to their bail bonds to undergo the remaining part of sentence.

The appeal fails and accordingly dismissed.