Mahadev Munda And 14 Ors vs State Of Assam And Anr

AM Bujor Barua, J

Heard Mr. M Sarania, learned counsel appearing for the appellants and Mr. M Phukan, learned Additional Public Prosecutor for the State of Assam. Also heard Ms. G Sharma, learned counsel for the informant.

An ejahar dated 19.03.2015 was lodged by one Lala Orang of line No.13 of Bhutiachang Tea Estate before the Officer-in-charge of Paneri Police Station, District Udalguri inter-alia stating that at about 5 pm on 19.03.2013, the persons named therein, who were residents of the same line, went to their house and caught hold of his father and dragged him outside the house and thereafter assaulted his father with lathis, stones, bricks etc on the road. Thereafter, the assailants also assaulted the informant. As a result, the father of the informant died. The persons named in the ejahar were as follows:- 1. Mahana Uran, S/o Late Baghna, 2. Sira Munda, S/O Late Danlu, 3. Hatiram Mahli, S/o Late Gopal, 4. Mahadeu Munda , S/O Sri Manglu Munda, 5. Sunny cherowa Mahli, S/o Late Manbar Mahli, 6. Makhan Lachku, S/O Late Arun Lachku, 7. Arjun Munda, S/O Sri Kanak, 8. Smti Shonamoni Mahli, W/O Late Gopal, 9. Smti Rehula Mahli, W/O Late Somra, 10. Smti Pane Munda, W/O Lalu Munda, 11. Poren Munda, S/O unknown and many others.

PW-1 Ratan Orang, son of the deceased stated that the incident took place around 5 pm which he had witnessed. He stated that all the accused persons together dragged his father Jirga Orang out of their house and assaulted him with their hands and lathis. They also assaulted him on the road with stones and bricks. The witness also stated that when his father was dragged out, he had witnessed the same and he also called an ambulance. When the witness resisted the assault on his father, the accused persons also assaulted him. The witness stated that the accused persons had killed his father by suspecting him to be a witch.

PW-2 Smti Butan Orang who is the wife of PW-1 Ratan Orang stated that at the time of the incident she arrived home from her work and the accused persons were present in their house. She then saw the accused persons took her elder sister Amta Orang and assaulted her. Accused Mahadeb, Arjun, Masma, Makun, Sukra, Ratul, Tira, Sanchuria and Puran had assaulted her father-in-law and dragged him about 100 meters away. She stated that the accused persons had killed the father of the informant by assaulting him with hands, sticks, stones, bricks and by kicking him.

PW-3 Lala Orang who is also the son of the deceased in his deposition stated that on the given day at about 5 pm, when the incident took place, he was at his house. He stated that the accused persons dragged away his father from inside the house upto about 100 meters and assaulted him. They also assaulted his wife Akhta Orang who was returning home from work and she became unconscious. He stated that Manu Orang @ Mana Orang, Arjun Munda, Mahadeb, Puran Muda, Sanchurua Mahali, Hatiram Mahalia @ Ram, Pane Munda, Tira Munda, Sonamoni Mahali, Rohila Mahali and Ratul, Sukra, Chupai etc had assaulted him.

It is taken note of that PW-4 and PW-13 are also eye witnesses to the occurrence who had also deposed in the same manner as that of PWs-1, 2 and 3. The evidence of PWs- 2, 3, 4 and 13 having not been confronted by the defence, we are in a situation where we have to accept the eye-witnesses' account of the occurrence and that as per the eye-witnesses' account, the appellants herein, namely, 1.Mahadev Munda, S/O Mangdhu Munda, 2. Tira Munda, S/O Dhanu Munda, 3. Ratul Munda, S/O Lalu Munda, 4. Sukra Orang, S/O Late Sarua Orang, 5. Makum Rujput, S/O Late Arjun Rajput, 6. Mohan Orang, S/O Late Bunda Orang, 7. Chapai Munda, S/O Mangalu Munda, 8. Arjun Munda, S/O Pranab Munda, 9. Mahendra Proja, S/O Late Padu Proja, 10. Rahila Mahali, W/O Late Sanra Mahali, 11. Pane Munda, W/O Late Lalu Munda, 12. Sanshura Mahali, S/O Late Member Mahali, 13. Puran Munda, S/O Late Dilra Munda, 14. Hatiram Mahali, S/O Gopal Mahali and 15. Hatiram Mahali, W/O Gopal Mahali were named by them to have participated in the assault on the deceased.

From the evidence on record, it is also taken note of that formation of unlawful assembly has been established having satisfied the requirement of Section 141 (3rd) of the IPC. Further, a common object of the unlawful assembly is also evident from the evidence on record of the eye witnesses that there was an assault on the body of the deceased by dragging him out of the house.

In view of such evidence on record, we cannot but accept that the act of the accused appellants comes within the purview of Section 149 of the IPC and that they had caused the assault on the deceased. As per the evidence of the Dr. Pradip Kumar Nath, who had conducted the post-mortem examination, the following injuries were found on the body of the deceased person:

Injuries:

1) Massive ambrosial injury over back of the hip stained with mud, size-3 inches

2) Bruise over right hip, size 2 ½ inches

3) Multiple bruise (longitudinal) over back of the chest.

4) Cut injury over face in longitudinal manner dissecting the nose, size 4 inches x 1 inch.

5) Fracture mandible on right side

6) Grose lacerated injury over left eye

7) Multiple rib fracture in front of the chest on right side.

A perusal of the injury sustained gives an indication that no sharp cutting weapon as such was used in the assault. Further, from the evidence of PWs- 1, 2 and 3, it is seen that the assault was done on the deceased by assaulting him with lathis, hands by throwing stones and bricks and by kicking him.

Considering the nature of the injuries sustained and the kind of weapons used, we are of the view that none of the ingredients of Section 300 IPC has been satisfied in this respect so as to bring it within the purview of culpable homicide which amounted to murder. The act of the accused appellants being a culpable homicide not amounting to murder, we are of the view that they would be liable for an offence under Section 304 IPC. Again when we look into the nature of the injury and the means used for such assault, we are of the view that there was no intention on the part of the accused appellants to cause the death of the deceased. It is also taken note that as per the deposition of the doctor who had conducted the post mortem, no opinion had been rendered that the injuries sustained were sufficient in order to cause the death.

Accordingly, we hold that the accused appellants are guilty of offence under section 304 part-II of the IPC. The accused appellants are convicted under section 304 Part-II of the IPC and are sentenced to undergo rigorous imprisonment for 6 years each with a fine of Rs.2000/- and in default thereof to undergo a further imprisonment of 2 months.

The Judgment and the order of the learned Additional Sessions Judge, Udalguri, BTAD in Sessions Case No.90 ( D/U)/2013 stands modified to the extent indicated above.

The period of imprisonment already undergone by the appellants shall be set off.

The appeal stands party allowed.

Send back the LCR.