Bhim Kanta Dutta and Anr. Vs the State of Assam

2. This appeal is being presented against the judgment & order dated 14.03.2011 passed by the Court of learned Additional Sessions Judge (FTC), Sivasagar, in Sessions Case No. 34(S-C)/2009, whereby the appellants/accused persons were convicted under Section 304 (Part-II), read with Section 34 of the Indian Penal Code (hereinafter referred to as “IPC”).

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3. The case of the prosecution is that on 29.07.2007 at about 5 p.m. the appellants/accused persons i.e. Bhimkanta Dutta and Pradip Changmai came to the house of the informant and quarreled with her husband for firewood and gave fist and blows on his person, for which he sustained injuries and succumbed to death. Accordingly, the informant lodged an FIR on 30.07.2007 being Sonari P.S. Case No. 155/2007, registered under Section 302/34 of the IPC.

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4. Thereafter, the Investigating Officer (PW-14) investigated the case and submitted charge-sheet against the appellants/accused persons under Section 302/34 of IPC.

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5. The matter being exclusively triable by the Court of Sessions, the learned Judicial Magistrate, First Class, Sonari committed the case records under Section 209 of Code of Criminal Procedure (hereinafter referred to as “Cr.P.C”) before the Sessions Judge. Accordingly, the learned trial Court framed charge under Section 302 of IPC, read with Section 34 of IPC against the appellants/accused persons and held the trial.

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6. During trial the prosecution adduced the evidence of 14 prosecution witnesses along with 14 nos. of exhibits. The list of prosecution witnesses and the list of prosecution exhibits are extracted hereunder for ready reference: -

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“List of Prosectuion Witnesses:

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1. P.W.1 --- Smti Shanti Ruhi Das.

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2. P.W.2 --- Sri Anil Bhumiz.

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3. P.W.3 --- Sri Sadhu Digar.

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4. P.W.4 --- Sri Bharat Newar.

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5. P.W.5 --- Sri Gopal Gowala.

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6. P.W.6 --- Sri Lohit Kr. Saikia, J.M.

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7. P.W.7 --- Sri. Rajo Ruhi Das.

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8. P.W.8 --- Smti Rukmini Ruhi Das.

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9. P.W.9 --- Sri Nimai Bauri.

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10. P.W.10 --- Sri Kuleswar Kurmi.

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11. P.W.11 --- Sri Dharma Kanta Dutta.

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12. P.W.12 --- Sri Pradip Dutta.

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13. P.W.13 --- Dr. Biswajeet Dutta.

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14. P.W.14 --- Sri Suren Bailung, I.O.

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List of Prosectuion Exhibits:

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1. Ext.1 --- Seizure list.

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2. Ext.2 --- Statement of witness Gopal Gowala recorded U/S 164, Cr.P.C.

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3. Ext.3 --- Statement of witness Smti Shanti Ruhi Das recorded U/S 164, Cr.P.C.

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4. Ext.4 --- Statement of witness Sri Anil Bhumiz recorded U/S 164,Cr.P.C.

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5. Ext.5 --- Statement of witness Sri Sadhu Digar recorded U/S 164,Cr.P.C.

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6. Ext.6 --- Inquest report.

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7. Ext.7 --- Post-Mortem Report.

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8. Ext.8 --- Ejahar.

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9. Ext.9 --- Sketch map.

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10. Ext.10 --- Charge-Sheet.

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11. Ext.11 --- Statement of Smti Rukmini Ruhi Das U/S 161, Cr.P.C.

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12. Ext.12 --- Statement of Sri Nimai Bauri U/S 161, Cr.P.C.

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13. Ext.13 --- Statement of Sri Dharmakanta Dutta. 14. Ext.14 --- Statement of Sri Pradip Dutta U/S 161, Cr.P.C.”

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7. Upon the evidence of the prosecution being closed, incriminating circumstances were put to the appellants/accused persons under Section 313 of Cr.P.C., wherein the appellants/accused persons generally denied the allegations and adduced two defence witnesses being D.W.1- Sri Bolin Dutta and D.W.2 -Sri Rangila Newar.

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8. Thereafter, upon conclusion of the trial, the learned trial Court found the appellants/accused persons guilty under Section 304 (Part-II), read with Section 34 of IPC and accordingly, sentenced the appellants/accused persons to Rigorous Imprisonment for 5(five) years each and also to pay fine of Rs. 1,000/- each; in default to simple imprisonment for another 1(one) month each. Against the aforesaid conviction and sentence, the present appeal has been filed.

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9. Mr. S. Dey, learned Counsel for the appellants/accused persons submits that the conviction under Section 304 (Part-II) of IPC is unsustainable in law

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as much as it is clearly discernible from the evidence itself that the appellants/accused persons did not have guilty knowledge to attract Section 304 (Part-II) of IPC. In support of the aforesaid submission, he relies upon the decision of the Apex Court in the case of Jagriti Devi Vs State of Himachal Pradesh , reported in (2009) 14 Supreme Court Cases 771 . He further submits that it has clearly come out from the Post-mortem Report that there was no internal or external injury noticed in the body of the deceased. He further submits that the opinion of the Medical Officer who conducted the post-mortem is that the death has occurred due to cardiac arrest due to prolonged heart disease suffered by the deceased. He accordingly submits that the act of the appellants/accused persons shall not fall under Section 304 (Part-II) of IPC and therefore the conviction is bad in law. In support of the aforesaid submission, he relies upon the following decisions of the Apex Court: -

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(i) Anbazhagan Vs State Represented by the Inspector of Police , reported in 2023 SCC OnLine SC 857 .

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(ii) Rupinder Singh Sandhu Vs State of Punjab and Others , reported in (2018) 16 Supreme Court Cases 475 .

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10. On the other hand, Mr. P. S. Lahkar, learned Additional Public Prosecutor for the State respondent in his usual fairness submits that the Medical Report does not corroborate the oral testimonies of the eyewitnesses. He

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further fairly submits that the FIR is also not exhibited by the informant PW-1.

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11. I have heard the submissions made by the learned Counsels of both the parties and have also perused the material available on record. I have also considered the case laws cited at the bar.

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12. In exercise of my appellate power, I shall have to analyze and re-appreciate the evidence in order to ascertain the correctness of the impugned judgment & order of the learned trial Court under appeal. It appears that the informant in this case is the wife of the deceased. Out of the 14 prosecution witnesses, PW-1, PW-2 and PW5 are eyewitnesses to the incident.

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13. Apt to examine the testimonies of the said 3(three) witnesses at the outset. PW-1 deposed that about 1 ½ years back, the two accused persons came to their house and charged her husband/deceased for committing theft of firewood and assaulted him severely by kicking him on his whole body, pursuant to which the deceased had blood vomiting and died. She further deposed that she accordingly lodged the ejahar on that day.

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14. During her cross-examination she clarified that the deceased died after 1 hour of the occurrence. She further clarified that there was altercation between the deceased and the accused persons as regards stealing of firewood. She further clarified that during assault she

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raised noise and then PW-11 and PW-12 came to her house and took away the accused persons from the place of occurrence.

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15. PW-2 who is a daily labourer and was working in the house of PW-1 on the date of incident deposed that the two accused persons came on the date of occurrence at about 4 p.m. to the house of the deceased and assaulted him by giving fist blows after charging him for theft of firewood. He further deposed that on the same date at about 10-11 p.m., he was reported by PW-1 about the death of the deceased.

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During cross-examination, he clarified that there was a scuffle between the accused persons and the deceased and during such course of scuffle, the deceased fell down on the ground.

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16. PW-5 who was sitting in the house of the deceased at the time of the occurrence similarly deposed that the accused persons came there and charged the deceased for theft of firewood and assaulted the deceased with fist.

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17. It appears from the above three testimonies of the eyewitnesses that the appellants/accused persons came to the house of the deceased and charged him for stealing firewood. It further appears that during such altercation, the appellants/accused persons had assaulted the deceased. It appears that though PW-1 has deposed that the appellants/accused persons have severely kicked

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the deceased in his whole body, however, PW-2 and PW-5 have deposed that the appellants/accused persons had punched the deceased on his body. It appears from the testimonies of the eyewitnesses that there is inconsistency as regards the accounting of the nature of the assault.

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18. In order to find support as regards the nature of the assault, apt now to refer to the evidence of the Medical Officer (PW-13) , who has conducted the post-mortem over the body of the deceased. The findings of the Postmortem Report as regards the wounds, position and character is “ No internal or external injury or ligature mark is seen ”. It further appears from the Post-mortem Report that the Medical Officer opined that death is due to cardiac arrest. PW-13 exhibited the Post-mortem Report as Exhibit-7. He further deposed in the Court that the deceased was physically weak and he was suffering from heart disease and in those circumstances, if any pressure was applied on him from outside or anybody punched him, he may suffer cardiac arrest on his person.

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19. During cross-examination, he clarified that during post-mortem examination, he detected no internal or external injury on the person of the deceased and according to him cardiac arrest may caused due to heart disease suffered by any person at anytime.

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20. That being so, the Medical Report does not corroborate the testimonies of the witnesses as regards the infliction of kicks and blows on the body of the deceased.

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It is pertinent to mention that apart from the aforesaid 3(three) eyewitnesses PW-1, PW-2 and PW-5, there were other eyewitnesses as well i.e. PW-3, PW-8, PW-9, PW-11 and PW-12. However, they have turned hostile and therefore, the same is of no support to the prosecution story.

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21. From the above, it is evident that the present case is a case of homicide but whether Section 304 of IPC would be attracted or not is a question to be examined.

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22. Section 304 of IPC provides for punishment for culpable homicide not amounting to murder. Culpable homicide is defined under Section 299 of IPC which is reproduced herein below for ready reference: -

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“ Section 299. Culpable homicide.- Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide .”

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23. From reading of section 299 of IPC, it is apparent that firstly death has to be caused by an act, which if done has to satisfy at least three contingencies which are: (i) with intention of causing death, (ii) with intention of causing such bodily injury as is likely to cause death, (iii) with knowledge that the act is likely to cause death. Therefore, to attract section 299 of IPC an accused should have caused death by doing an act either with the

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intention of causing death or with the intention of causing such bodily injury which is likely to cause death or by doing an act with the knowledge that it is likely by such act to cause death. Thus, in order to bring home an offence under Section 299 of IPC, the accused must do an act by which the death is caused. It is only if such an act is done, either of the three contingencies has to be satisfied to constitute the offence of culpable homicide.

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24. In the case in hand, it is evident that the Postmortem Report rules out the injury as is claimed to have been inflicted as per the oral testimonies of PW-1, PW-2 and PW-5. Undoubtedly oral evidence gets primacy and medical evidence is opinionative, but when the medical evidence rules out the injury in terms of the oral testimony, adverse inference can be drawn. Reference is made to the decision of the Apex Court in the case of Ramanand Yadav Vs. Prabhu Nath Jha and Others , reported in (2003) 12 Supreme Court Cases 606 . Paragraph 17 of the aforesaid judgment is reproduced hereunder for ready reference: -

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“17. So far as the alleged variance between medical evidence and ocular evidence is concerned, it is trite law that oral evidence has to get primacy and medical evidence is basically opinionative. It is only when the medical evidence specifically rules out the injury as is claimed to have been inflicted as per the oral testimony, then only in a given case the Court has to draw adverse inference.”

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25. Therefore, in the instant case, the question of culpable homicide not amounting to murder coming into

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play does not arise. In fact, the basic ingredients of Section 299 of IPC are not satisfied and therefore, conviction of appellants/accused persons under Section 304 (Part-II) of IPC for having committed culpable homicide is unsustainable in law.

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26. Be it reiterated that there is no internal or external injury marks noted in the body of the deceased during post-mortem. In fact, no ligature mark or any other sign of injury was also detected or seen during postmortem. On the contrary, it has come out from the Postmortem Report that the deceased was suffering from a heart disease and the death was due to cardiac arrest. It appears clearly from the evidence of the prosecution witnesses that the alleged altercation/assault had taken place around 4-5 p.m. whereas the death had taken place at around 10-11 p.m. Therefore, the death of the deceased cannot be said to have been caused due to any act done by the accused persons. Accordingly, I am unable to accept the view taken by the learned trial Court as regards the appellants/accused persons assaulting the deceased.

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27. For the foregoing reasons, I am of the considered view that the prosecution has not been able to prove the guilt of the appellants/accused persons beyond all reasonable doubts and therefore, the impugned judgment & order of conviction is liable to be set aside.

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28. Accordingly, the judgment & order dated 14.03.2011 passed by the Court of learned Additional

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Sessions Judge (FTC), Sivasagar in Sessions Case No. 34(S-C)/2009 is hereby set aside and quashed.

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29. Resultantly, the criminal appeal stands allowed.

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30. As such, the appellants stand acquitted. The bail bonds furnished by the appellants accordingly, stand discharged.

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31. Before parting with the records, this Court appreciates the assistance of Mr. P. S. Lahkar, learned Additional Public Prosecutor, in order to ascertain the truth of the matter.

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32. Send back the trial Court Record.

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JUDGE

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Comparing Assistant

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Bhim Kanta Dutta and Anr. v. the State of Assam

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Bhim Kanta Dutta and Anr. v. the State of Assam

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