Bhumidhar Nath (Accused 1), Darrang (Assam) and Others Vs. State of Assam - Court Judgment

SooperKanoon Citationsooperkanoon.com/1172871
CourtGuwahati High Court
Decided OnFeb-21-2014
Case NumberCriminal Appeal 15 of 2010 & Criminal Appeal(J) 1 of 2010 & 2 of 2010
JudgeK. SREEDHAR RAO & P. K. SAIKIA
AppellantBhumidhar Nath (Accused 1), Darrang (Assam) and Others
RespondentState of Assam
Excerpt:
sreedhar rao, j. 1. the material-facts of the prosecution case disclose that one troilokya nath alias tulukan is deceased. he is mater-uncle of the accused-persons. there was a property dispute between them. earlier to the incident in question, the deceased had assaulted indra, a family member of the accused-persons. on 21.10.2004 at around 8.30 pm, the accused-persons picked a quarrel and assaulted the deceased. deceased managed to escape and entered the room of the mother of pw-4, where all the accused-persons came chasing him and the accused 1, 4 and 6 ~ bhumidhar nath, jiten nath and pitambar nath ~ entered the room and dragged him out and assaulted him. the other accused-persons also abated the commission of the offence. as a result the deceased sustained severe injuries and later, on the same day he had been admitted to a hospital where he succumbed to the injuries. 3 2. after receiving a complaint about the incident from basanta kumar nath(pw-2), police visited the spot, sent the dead body for post-mortem, recorded statement of the witnesses and on completion of the investigation filed charge-sheet against all the accused-persons for committing offence under section 302, read with section 34 of the ipc. post-mortem report discloses that the death is said to be homicidal and is caused due to grave injuries. 3. in the evidence before the trial court pw-4 deposed that he was present in the house when the accused-persons chasing the deceased trespassed into their house while the accused 1 to 3 entered the room of his mother where the deceased hid himself while the other-accused persons were standing outside. 4. the accused 6 in his examination-in-chief deposed that all the accused-persons dragged troilokya out and later assaulted him. pw-5 who is brother of pw-4 has corroborated the version of the accused 6 that all the accused-persons entered the room and drag the deceased out and assaulted him. 5. the trial court on the basis of the evidence of pw-4 and pw-5, coupled with the post-mortem report has convicted the accused 1, 4 and 6 while acquitted the other accused-persons because there are no overt acts attributed against them. the convicted-accused have thus filed these appeals separately. 4 6. sri sc biswas, the counsel for the appellant in criminal appeal 15/2010, has strenuously submitted that the trial court has failed to appreciate the evidence of pw-4 and pw-5 in its proper perspective: the evidence of pw-4 and pw-5 discloses that it is the accused 6 who dragged the deceased out and assaulted him with a lathi. there is no overt act attributed against the accused 1 and 4 by pw-4 and pw-5: merely because the accused 1 and 4 trespassed into the house of pw-4 and pw-5 they cannot be held responsible for the overt acts of the accused 6; there is also no substantiating material to establish that the accused 1 and 4 had common intention. therefore the conviction of the accused 1 is bad in law and he is entitled to acquittal 7. ms anjali das, the amicus curia in criminal appeal 1/2010 has attuned the arguments of sri sc biswas and submitted that the conviction of the accused 4 is bad in law because there were no overt acts attributed against the accused 4 by pw-4 and pw-5. 8. sri a sarma, the amicus curiae in criminal appeal 2/2010 has submitted that the assault was not the intention to cause the murder: therefore the conviction of the accused 6 for committing offence under section 302 of the ipc is bad in law and he is entitled to acquittal. 9. upon a thorough consideration of the materials on record we find from the cross-examination of pw-4 and pw-5 ~ witness to the incident ~ that it is the accused 6 who indiscriminately assaulted the deceased and caused the death. the injuries caused to the deceased according to the post-mortem report are grave in nature and those are sufficient to cause the death in ordinary course. no over act has been attributed against the accused 1 and 4 by pw-4 and pw-5. therefore, keeping in view the evidence of pw-4 and pw-5 coupled with the post-mortem report we find that the conviction of the accused 6 ~ pitambar nath ~ is sound and proper. accordingly the conviction and sentence of the accused 6 is confirmed. consequently, criminal appeal 1/2010 is dismissed. ~ however, the conviction of the accused 1 and 4 for committing offence under section 302 of the ipc appears to be bad in law because there has been no overt act attributed against them by pw-4 and pw-5. in that view of the matter criminal appeal 15/2010 and 2/2010 are allowed. accused 1 and 4 ~ bhumidhar nath and jiten nath ~ are acquitted, and are directed to be released forthwith if not required in any other case. operative portion of the order be communicated to the trial court and jail authorities. 11. fee of the amicus curiaes who assisted the court in the matter is fixed at rupees seven thousand each which will be paid to them by the state.
Judgment:

Sreedhar Rao, J.

1. The material-facts of the prosecution case disclose that one Troilokya Nath alias Tulukan is deceased. He is mater-uncle of the accused-persons. There was a property dispute between them. Earlier to the incident in question, the deceased had assaulted Indra, a family member of the accused-persons. On 21.10.2004 at around 8.30 PM, the accused-persons picked a quarrel and assaulted the deceased. Deceased managed to escape and entered the room of the mother of PW-4, where all the accused-persons came chasing him and the accused 1, 4 and 6 ~ Bhumidhar Nath, Jiten Nath and Pitambar Nath ~ entered the room and dragged him out and assaulted him. The other accused-persons also abated the commission of the offence. As a result the deceased sustained severe injuries and later, on the same day he had been admitted to a hospital where he succumbed to the injuries. 3

2. After receiving a complaint about the incident from Basanta Kumar Nath(PW-2), police visited the spot, sent the dead body for post-mortem, recorded statement of the witnesses and on completion of the investigation filed charge-sheet against all the accused-persons for committing offence under section 302, read with section 34 of the IPC. Post-mortem report discloses that the death is said to be homicidal and is caused due to grave injuries.

3. In the evidence before the trial court PW-4 deposed that he was present in the house when the accused-persons chasing the deceased trespassed into their house while the accused 1 to 3 entered the room of his mother where the deceased hid himself while the other-accused persons were standing outside.

4. The accused 6 in his examination-in-chief deposed that all the accused-persons dragged Troilokya out and later assaulted him. PW-5 who is brother of PW-4 has corroborated the version of the accused 6 that all the accused-persons entered the room and drag the deceased out and assaulted him.

5. The trial court on the basis of the evidence of PW-4 and PW-5, coupled with the post-mortem report has convicted the accused 1, 4 and 6 while acquitted the other accused-persons because there are no overt acts attributed against them. The convicted-accused have thus filed these appeals separately. 4

6. Sri SC Biswas, the counsel for the appellant in criminal appeal 15/2010, has strenuously submitted that the trial court has failed to appreciate the evidence of PW-4 and PW-5 in its proper perspective: the evidence of PW-4 and PW-5 discloses that it is the accused 6 who dragged the deceased out and assaulted him with a lathi. There is no overt act attributed against the accused 1 and 4 by PW-4 and PW-5: merely because the accused 1 and 4 trespassed into the house of PW-4 and PW-5 they cannot be held responsible for the overt acts of the accused 6; there is also no substantiating material to establish that the accused 1 and 4 had common intention. Therefore the conviction of the accused 1 is bad in law and he is entitled to acquittal

7. Ms Anjali Das, the amicus curia in criminal appeal 1/2010 has attuned the arguments of Sri SC Biswas and submitted that the conviction of the accused 4 is bad in law because there were no overt acts attributed against the accused 4 by PW-4 and PW-5. 8. Sri A Sarma, the amicus curiae in criminal appeal 2/2010 has submitted that the assault was not the intention to cause the murder: therefore the conviction of the accused 6 for committing offence under section 302 of the IPC is bad in law and he is entitled to acquittal.

9. Upon a thorough consideration of the materials on record we find from the cross-examination of PW-4 and PW-5 ~ witness to the incident ~ that it is the accused 6 who indiscriminately assaulted the deceased and caused the death. The injuries caused to the deceased according to the post-mortem report are grave in nature and those are sufficient to cause the death in ordinary course. No over act has been attributed against the accused 1 and 4 by PW-4 and PW-5. Therefore, keeping in view the evidence of PW-4 and PW-5 coupled with the post-mortem report we find that the conviction of the accused 6 ~ Pitambar Nath ~ is sound and proper. Accordingly the conviction and sentence of the accused 6 is confirmed. Consequently, criminal appeal 1/2010 is dismissed. ~ However, the conviction of the accused 1 and 4 for committing offence under section 302 of the IPC appears to be bad in law because there has been no overt act attributed against them by PW-4 and PW-5. In that view of the matter criminal appeal 15/2010 and 2/2010 are allowed. Accused 1 and 4 ~ Bhumidhar Nath and Jiten Nath ~ are acquitted, and are directed to be released forthwith if not required in any other case. Operative portion of the order be communicated to the trial court and jail authorities. 11. Fee of the amicus curiaes who assisted the Court in the matter is fixed at rupees seven thousand each which will be paid to them by the State.