Crl.A. 286/2004 BEFORE HON’BLE MR. JUSTICE AMITAVA ROY HON’BLE MR. JUSTICE C.R.SARMA JUDGMENT & ORDER (ORAL) Amitava Roy, J Under challenge is the judgment and order dated 11.10.2004 passe d by the learned Ad-hoc Additional Sessions Judge No.1, Kamrup, Guwahati in Ses sions Case No. 107(K)/96 convicting the present appellants under Section 148/149 /447/302 of the Indian Penal Code (for short, hereinafter referred to as ’the IP C’) and sentencing them, amongst others, with imprisonment for life and to pay a fine of Rs. 2000/- each, in default, to undergo imprisonment for a further peri od of six months. They were also additionally sentenced for the other offences a s well. 2. We have heard Mr. BS Basumatary, learned counsel for the appella nts being assisted by Ms J Wari, learned counsel and Mr KA Mazumdar, learned Pub lic Prosecutor, Assam. 3. A F.I.R. was lodged on 13.12.94 by one Madhab Ch. Kalita with th e Officer-in-Charge of Kamalpur Police Station alleging that the appellant Nos. 1 to 6 had on the very same day at about 7.30 a.m. assaulted him with deadly wap ons i.e. dagger, dao, axe, spear and cudgel. On the basis of the said F.I.R. Kam alpur P.S. Case No. 191/94 under Section 147/ 447/324/325 IPC was registered and on completion of the investigation chargesheet was laid against them along with one Smt. Sarubala Kalita. Charge was framed against the accused/appellants by t he learned Trial Court under Section 148/149/447/302 IPC. The accused/appellants pleaded ’not guilty’ and claimed to be tried. The prosecution, thereafter, exam ined eight witnesses including the doctor who had performed the post mortem exam ination as well as the Investigating Officers. The defence also examined two wit nesses. Subsequent thereto, the statements of the accused/appellants under Secti on 313 Cr.P.C. were recorded and by the impugned judgment and order they were co nvicted and sentenced as above. 4. Before adverting to the rival submissions it would be appropriat e to notice the evidence on record in short. It is significant to record at this stage that the informant had succumbed to his injuries. The prosecution has pro jected P.W.1, Hiten Saloi; P.W.2, Mohan Kalita; P.W.3, Nabin Kalita and P.W.4, S arat Ch. Kalita as the eye witnesses to the incident. Having regard to the numbe r of the alleged assailants and the variety of weapons wielded by them as charge d, it would be appropriate to indicate their complicity as testified by these wi tnesses in a tabular form. Witness Name of accused/ appellant Weapon of assault used Portion of the body where assault was made Hiten Saloi (P.W.1) Pratap Kalita Dagger Maheswar Kalita Axe Anil Ch. Kalita Spear Kabin Kalita Dao Saru Bala Kalita Spear Minati Kalita Cudgel Champa Kalita Axe Mohan Kalita (P.W.2) Pratap Kalita Hand Maheswar Kalita Legs Kabin Kalita Leg (below the knee) Nabin Kalita (P.W.3) Pratap Kalita Dagger Head Maheswar Kalita Axe Head Anil Ch. Kalita Spear Right knee Minati Kalita Spear Below left knee Saru Bala Kalita Cudgel Legs and hands Champa Kalita Axe Head P.W.4, Sarat Ch. Kalita stated in his cross-examination that he had not seen as to who had caused injuries to the deceased. 5. Out of these witnesses, P.W.1, P.W.2 and P.W.3 claimed to be pre sent at the place of occurrence and stated that before the incident the accused/ appellants were armed with deadly weapons as above. They mentioned inter alia ab out a dispute between the parties over the plot of land on which the occurrence had taken place and stated that a case relatable thereto had been pending in con nection with which a Magistrate was supposed to visit it later in the day. They also referred to a quarrel between the parties preceding the assaults. According to them, after Madhab Ch. Kalita had been assaulted he was removed to the Gauha ti Medical College & Hospital for treatment and after seven days he died. P.W.1, P.W.2 and P.W.3 proved the seizure of the weapons of assault from the accused/a ppellants in their presence on being led by the accused/appellants vide Exhibit- 1. P.W.3 also proved the FIR (Exhibit-2) written by him and on which the injured had put his thumb impression. All these witnesses mentioned about bleeding inju ries of the injured who later on died therefrom. 6. P.W.5, Dhiren Ch. Kalita is a witness to the inquest proved Exhi bit-3, the report in connection therewith. P.W.6, Bimal Deka and P.W.8, Bhaben C h. Bora are the police officers who had conducted the investigation in the case in phases. P.W.8 inter alia proved Exhibit-4, the dead body challan by which the corpse was forwarded for post mortem examination. P.W.7, Dr. Dipak Ch. Das who had performed the said examination found the following injuries on the dead body : 1. Stitched wound three black seal stitches on left side of fore head 5 cm from bridge of nose and 2 cm left from the midline. Direction of the wound above dow n wards. 2. Transversed stitched wound with 4 black seal stitches on right side of forehe ad 7 cm from right eye ridge. 3. Stitched wound with 4 black silk stitches on scalp antero posteriorly over ri ght parietal region 9 cm from right eye ridge. 4. Lacerated wound 4 cm x 1 cm over left parietal region partially healed 7 cm f rom left mastoid pores. On removal of stitches all the wounds are partially hea led. 5. Abrasion 6 cm x 3 cm on the middle of the forehead. 6. Incised wound 3 cm x 2 cm on the posterior aspect of left elbow wound is infe cted pus adherent. 7. Contusion present over whole posterior aspect of right upper limb with fractu re of upper limb of right ulna. 5 cm below elbow. 8. Contusion and multiple abrasion of varying sizes present over whole left uppe r limb at places. 9. Fracture of both tibia and fibula of (left side) at the junction of upper and middle third. Lacerated (infected and pus adherent) 6 cm x 5 cm x 3 cm of upper end of left leg below knee with gap of 4 cm in between. 10. Patterned abrasions (of rod like substance) and contusions at places over po sterior aspect of both legs. Both legs swollen. . According to him, the cause of death was coma resulting from the head injury which was ante mortem and homicidal in nature. In cross-examination , however, the witness stated that the injury Nos. 1,2 and 3 were partially heal ed and that he had not mentioned about the nature thereof - grievous or simple. He also conceded that the depth of injury No.4 had not been mentioned by him. He proved the post mortem report (Exhibit-5). 7. D.W.1, Phanidhar Haloi and D.W.2, Holiram Kalita were introduced by the defence with an endeavour to prove the subsisting land dispute between t he parties and a quarrel preceding the incident on the date of the occurrence. 8. Mr Basumatary has urged in the backdrop of the above evidence th at the testimony of the so called eye witnesses is contradictory in material ter ms and, therefore, the prosecution having failed to prove its case beyond all re asonable doubt, the accused/appellants are entitled to acquittal. According to h im, as a land dispute between the parties was in existence at the time of the in cident as has been deposed of by the prosecution witnesses and that there was an animated quarrel between them, the accused/ appellants, in any view of the matt er, cannot be said to be possessed of any intention of doing away with the decea sed even if their involvement in the incident is accepted. The learned counsel b rushed aside the evidence of P.W.4 in particular stating that he was a chance wi tness indicating that the actual cause of death was medical negligence and not t he injuries said to have been suffered by the deceased. Mr Basumatary has insist ed that non-examination of the doctor, in the facts and circumstances of the cas e, is fatal for the prosecution and that, therefore, the impugned judgment and o rder ought to be interfered with in the interest of justice. Without prejudice t o the above, the learned counsel has urged that as a land dispute was the root c ause of the incident, the conviction of the accused/ appellants under Section 30 2 IPC is apparently unsustainable in law and on facts and that, therefore, they ought to be acquitted. 9. Mr Majumdar, in reply, has submitted that the prosecution having been able to prove the charges against the accused/appellants on the basis of t he evidence adduced by its witness read with the post mortem report proved by P. W.7, there is no scope for any interference with their conviction and sentence a nd that, therefore, the appeal ought to be dismissed. 10. Noticeably, the defence has not denied the presence and involvem ent of the accused/ appellants in the incident of assault on the date and at the time of the occurrence referred to in the FIR. On a comparison of the roles att ributed to the accused/appellants in the FIR and the evidence of P.W.1, P.W.2 an d P.W.3, we are of the view that their involvement in the assaults, as alleged, stands proved. That there was a pending dispute between the parties over the lan d on which the incident had taken place and that there was a quarrel between the m before the assaults has also been substantiated by P.W.1, P.W.2 and P.W.3 in p articular. On a cumulative reading of the evidence of these three witnesses, it appears that in connection with the said dispute that was subjudice in a Court a t Rangia, a Magistrate on the very date of the occurrence was expected to visit for necessary survey. It is, therefore not unlikely in such a state of affairs s eeing the deceased on the land the accused/ appellants were alarmed and annoyed so much so that they armed with weapons rushed thereto so as to prevent him (dec eased) from asserting his ownership thereon or from taking any overtact in endor sement thereof. Admittedly, there is no evidence to the effect that the deceased at that point of time was armed. He was alone as well. The conduct of the accus ed/ appellants in entering into a quarrel with him and then in a group assaultin g him with deadly weapons is clearly in excess of their right of private defence of property claimed by them. This per se, however, does not establish lack of g ood faith on their part in pursuing their said claim in the background of a subs isting dispute and a pending Court case. In the singular facts and circumstances leading to the incident we are, thus, left unconvinced that the accused/appella nts in their bid to defend their right over their property as claimed by them ha d formed an unlawful assembly as contemplated under Section 141 of the Indian Pe nal Code so as to attract the consequences of Section 148 and 149 of the Code. T hey, however, having regard to their proved involvement in the assaults are liab le therefor individually. 11. Noticeably, out of the injuries detected on the dead body those at serial Nos. 1,2,3,4 and 5 are on the forehead/ parietal region. P.W.7 in his cross-examination in clear terms has stated that the injury Nos. 1,2, and 3 at t he time of examination had partially healed. There was no indication in the rep ort as to whether those injuries were grievous or simple. The doctor did not men tion either the depth of the injury at serial No.4 though it had been opined tha t the death was due to coma resulting from head injuries which were ante mortem. Having regard to the circumstances in which the occurrence had taken place and also the time lag between the assaults and the death, the nexus between the caus e and the consequence is remote. Moreover, having regard to the unequal situatio ns, the former being visibly outnumbered by persons armed with deadly weapons, w e are inclined to conclude that the assaults made though might have been with th e knowledge of inflicting injuries likely to cause death, the intention therefor did not necessarily accompany the same. With a helpless and unarmed person befo re them the assailants, if they had intended to do so, could have butchered him to death on the spot itself. We are, thus, inclined to extend the benefit of dou bt to them on this count. It is, therefore, our considered view that though the accused/appellants had assaulted the deceased with the weapons said to be wielde d by them, they had as such no intention to kill him. 12. In the above view of the matter, we feel persuaded to convert th e conviction of the accused/ appellants to one only under Section 304, Part-II o f the IPC and scale down the sentences to the period already undergone. Ordered accordingly. 13. The appeal, therefore, is partly allowed. The impugned judgment and order dated 11.10.2004 stands modified to the extent indicated above. The ac cused/ appellants be released forthwith.