CRL.A(J)/97/2015
2022 Latest Caselaw 3431 Gua

GAHC010179012015




                             THE GAUHATI HIGH COURT AT GUWAHATI
                          (The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
                                          PRINCIPAL SEAT AT GUWAHATI

                                                CRL.A.(J) No. 97/2015


                             Prodip Kumar,
                             S/O Late Baburam Sindhkari,
                             Resident of Vill-Panna,
                             PS-Satibazar (Satna),
                             Madhya Pradesh.
                                                                                     ......Appellant.

                                   -Versus-
                   1.        The State of Assam.
                   2.        Shri Manomohan Das,
                             S/O Late Rammohan Das,
                             Resident of Tengabari, PS-Mornoi,
                             District-Goalpara, Assam.
                                                                                  ......Respondents.

BEFORE HON'BLE MR. JUSTICE N. KOTISWAR SINGH HON'BLE MRS. JUSTICE SUSMITA PHUKAN KHAUND

For the Appellant: Mr. R.M. Choudhury, Amicus Curiae. ......Advocate.

                   For the Respondents:                Ms. B. Bhuyan, Sr. Adv., Addl. PP, Assam,
                                                       Ms. R.D. Mazumdar.         ......Advocates.


                   Date of Hearing & Judgment          :     8th September, 2022





                                   JUDGMENT AND ORDER (ORAL)

             [N. Kotiswar Singh, J.]

Heard Mr. R.M. Choudhury, learned amicus curiae for the appellant.

Also heard Ms. B. Bhuyan, learned Senior counsel and Additional Public

Prosecutor, Assam, appearing for the respondent No.1, and Ms. R.D.

Mazumdar, learned counsel, appearing for informant/respondent No.2.

2. This is a jail appeal in which Mr. R.M. Choudhury, legal aid counsel, has

been appointed as amicus curiae by the Court to assist the appellant. So is Ms.

R.D. Mazumdar, learned counsel appointed by the Court to represent the

informant/respondent No.2.

3. The present appeal has been preferred against the judgment dated

29.08.2015 passed by the learned Sessions Judge at Goalpara in Sessions

Case No.305/2013, by which the accused Prodip Kumar has been convicted

under Section 302 of IPC and sentenced to suffer rigorous imprisonment for

life with fine of ` 5,000/- and also convicted under Section 307 of IPC and

sentenced to suffer rigorous imprisonment for five years and both the

sentences are to run concurrently.

4. It has been submitted by Mr. Choudhury, learned amicus curiae that

though one of the persons who was injured and allegedly thrown out of the

train by the appellant had given testimony, the same is not free of doubts and

it is primarily on the statement of that survivor that the learned Trial Court

had convicted the appellant under Sections 302 and 307 of IPC. It has been

submitted that in fact, the prosecution has failed to prove the charges against

the appellant beyond reasonable doubt and as such, he is entitled to be

acquitted.

5. Before we appreciate the aforesaid submissions advanced, it may be

necessary to briefly refer to the facts and evidences on record on the basis of

which the learned Trial Court convicted the appellant under Section 307 of IPC

as well as under Section 302 of IPC for committing murder of the deceased

one Girish Chandra Das.

6. An FIR was lodged on 11.04.2013 by one Manomohan Das, the

younger brother of the deceased Girish Chandra Das, to the effect that at

around 7 p.m. on 10.04.2013 when the deceased Girish Chandra Das, who

was a mason by profession, was returning home by train after completing his

day's work along with three others, one of whom also suffered injury, he was

pushed out of the train by the appellant at a place called Balla under the

Krishnai Police Station whereupon the deceased suffered severe injuries.

Though he was rushed to the Goalpara Civil Hospital, he succumbed to his

injuries. Another person, namely, Uttam Rai, who was part of the said group,

was also allegedly pushed out of the train by the appellant and sustained

injuries.

7. On the basis of the said FIR, a police case being Krishnai P.S. Case

No.84/2013 under Section 307/302/325 of IPC was registered. On completion

of the investigation, the appellant was charge-sheeted of committing murder

intentionally by causing death of Girish Chandra Das punishable under Section

302 of IPC and also was charged of pushing Shri Uttam Rai from the speeding

train though he survived, thus, committing offence under Section 307 of IPC.

8. In order to substantiate the aforesaid two charges, the prosecution

examined as many as 10(ten) witnesses including the survivor Shri Uttam Rai

as PW-4. On the basis of the evidence so adduced by the prosecution, the

learned Trial Court convicted the appellant under Section 307/302 of IPC as

mentioned above.

9. We will now proceed to examine the evidence on record.

10. PW-1 is the informant Manomohan Das. He was not an eye witness to

the incident, who was subsequently informed by his niece that the deceased

Girish was no more and he was pushed out of the train and also the other

person, namely, Uttam was also pushed out of the train. On being so

informed, he along with others went to the place of occurrence and when they

reached near the rail track, he heard someone crying for help and there he

saw Uttam lying in an injured condition. When he asked the injured Uttam

about Girish, he showed with his hands that Girish had been hit by the train

and accordingly, he proceeded towards the railway line and found Girish lying

on the red soil. Though he was alive at that time, he was not in a position to

speak and he was immediately rushed to Goalpara hospital and the injured

Uttam was also taken to the hospital. Later on PW-1 came to know that Girish

had died. He stated that at that time his nephew Ujjal Das was with him who

apprehended the appellant and he took him to his house. Thereafter, the

appellant was handed over to the police station. In his cross-examination, he

admitted that he was not an eye witness to the incident.

11. The next witness is one Ujjal Das (PW-2), who was accompanying the

deceased while returning home on completion of work. He stated that he was

sitting with another companion Amzad Ali (PW-3), a labourer, in the front

seat, and the deceased, who was his father, was sitting on a separate seat.

He stated that when they reached near the place called Balla near Krishnai,

they heard a hue and cry that someone had pushed out his father and

brother-in-law from the train. The passengers in the train then apprehended

the appellant inside the coach. Later on, they could find out his father and the

brother-in-law. His father though was alive for some time, was not in a

position to speak and he was taken to hospital where he was declared dead.

His brother-in-law Uttam Rai who was examined as PW-4 also sustained

injuries and he was treated in the Goalpara Civil Hospital.

In the cross-examination, though he stated that the appellant had

pushed his father and brother-in-law out of the train, PW-2 stated that he was

so informed by the public. Thus, from the evidence of PW-2 it appears that he

was not an eye witness though he was in the same compartment of the train

where the deceased and the injured were travelling.

12. The next witness is PW-3 Amzad Ali, the labourer, who was returning

from work along with the deceased and injured. He also stated that he and

Ujjal (PW-2) were sitting in the front seat while Girish (deceased) and Uttam

(injured) examined as PW-4, were sitting behind them. He stated that he

heard a hue and cry and the public stated that the appellant had pushed

Girish and Uttam out of the train. Then on being told so, he and Ujjal detained

the appellant.

In the cross-examination, he stated that a person amongst the public

said that the appellant had pushed the deceased and the injured out of the

train but he did not know the name of the person who had stated so.

13. The next witness is Uttam Rai (PW-4), the injured witness, who was

also allegedly pushed out of the train by the appellant. He appears to be the

star witness. Primarily relying on his evidence, the learned Trial Court

convicted the appellant. In his deposition, he stated that Ujjal Das (PW-2), the

deceased, Amzad Ali (PW-3) and himself had gone to Singra by train and for

returning home they boarded a train at Singra around 6 p.m. He stated that

Ujjal Das (PW-2) and Amzad Ali (PW-3) were sitting in the front and he and

the deceased Girish were seated in the back together. He stated that Girish

then got up and proceeded towards the toilet for urinating, while he remained

seated in his place. He also stated that when the deceased came out after

urinating, the appellant attacked Girish and assaulted him and pushed him out

of the train. When he came forward to ask what had happened, the appellant

dealt a fisted blow near his right ear because of which he sustained injury on

the hand. Thereafter, the appellant pushed him too out of the train because of

which he sustained injuries. He also stated that on that day they received their

payments.

Thus, from the evidence-in-chief of the said witness, PW-4, it appears

that he had seen the appellant pushing Girish out of the train and he was also

pushed by the appellant out of the train resulting in the injuries to himself and

the death of the deceased. However, we have also noted that in the cross-

examination when a suggestion was made by the defence counsel that he did

not inform the police that Ujjal Das (PW-2) and Amzad Ali (PW-3) were sitting

in the front while the deceased and himself (PW-4) were seated in the back

and that the deceased had gone to the toilet to urinate and he remained

seated and that they had received their payments on that day and that a

fisted blow had been dealt near his right ear, he denied having not said so.

During the cross-examination, he stated that after hearing a hue and

cry when he proceeded to the place he found that the deceased Girish had

already been pushed away. He also stated that he went there immediately

after Girish had been pushed out. He also stated that when he proceeded, a

blow with fisted hand was dealt upon him. He also stated that he had not

fallen outside the coach when the blow with fisted hand was dealt on him.

However, he fell inside the coach itself, but he does not know what had

happened after that. He also stated that since he was lying unconscious he did

not know who took him away and how.

14. The next witness examined was PW-5 Gokul Das, who was the son of

the deceased. He went to the place of occurrence when he was informed that

his father and Uttam (PW-4) were thrown out of the running train. He stated

that his brother Ujjal (PW-2) was also with the deceased and the injured and

PW-5 was informed that some dacoits had thrown them from the running train

and later on they found the deceased and the injured near the railway tracks

and they were taken to the hospital. Thus, he is not an eye witness.

15. The next witness was PW-6, Dr. Bichitra Kr. Bordoloi, who conducted

the post-mortem examination on the dead body and found the following

injuries:-

"Injuries:

1) Multiple abrasion with bruises over the face, chest, upper abdomen, leg and left elbow; sizes from pin head to maximum 10 x 16 cm.

2) Fracture of 5th to 9th ribs at anterior axillary line (right).

3) 2 x 12 cm size laceration with depressed fracture on the right part of junction.

                    4)     1 x 8 cm size laceration posterior to injury No.3.

                    5)     2.4 cm size laceration with depressed fracture over the right part of
                           forehead just right from mid-line.

                    6)     2 x 2 cm size bone deep laceration over the middle of the right cheek.

                    7)     6 x 6 size laceration over the left elbow on the dorsal aspect.

                    8)     Compound fracture of left great toe."

The doctor gave the opinion that the death was due to coma and shock

as a result of ante mortem head injuries as described, following irregular hand

object impact. In the cross-examination, he stated that if anybody falls on a

hard substance or falls from a running vehicle, such injuries may be caused.

16. PW-7 is one Dr. Ashok Kr. Doley, who examined the injured person,

namely, Uttam Rai (PW-4), who found the following injuries on his body:-

"1) Multiple lacerated injuries both arm and both legs.

2) Lacerated injury over skull (temporal region), 5 cm x 4 cm x 2 cm in size.

                    X-ray of chest                :       No abnormality detected.

                    X-ray of shoulder joint       :       No abnormality detected.

                    X-ray AP Skull                :       No abnormality detected."

PW-7 stated that the injuries were simple in nature which could be

caused by falling from a running vehicle.

17. PW-8 is one Biswajit Kalita, who was the VDP Secretary of the village,

who came to know about the incident after being informed. He was not an

eye witness.

18. PW-9 is N.K. Nath, who completed the investigation of the case, which

was started by PW-10. He examined the witnesses and held inquest on the

dead body and sent the dead body for post-mortem examination.

19. PW-10 is one Chandra Kanta Kalita, who was the I.O. of the case, who

started the investigation of the case at the initial stage. In the cross-

examination of the said I.O. (PW-10), referring to the evidence of PW-4 Uttam

Rai, he stated that PW-4 did not state that Ujjal Das (PW-2) and Amzad Ali

(PW-3) were seated in the front side while the deceased and the injured were

seated in the back and that the deceased Girish had gone to the toilet to

urinate and that he had proceeded himself and that they had received

payments on that day and that PW-4 had been dealt with a blow near his right

ear.

Thus, the aforesaid evidence of I.O. would suggest that what PW-4

stated before the Court was not told to the I.O. during the investigation.

20. On completion of recording evidence of the prosecution witnesses

above-named, the appellant was confronted with the incriminating materials/

evidences which were brought on record. He denied all the allegations and the

incriminating materials brought to his notice. However, when he was asked by

the Court whether he wanted to say anything, he stated that at that time he

was coming from Guwahati in a train and the deceased Girish and the injured

Uttam Rai were in the same coach. He also stated that they were drinking

wine and they slapped and assaulted him and one of them tried to push him

out of the train and accidentally he fell out and the other also followed him,

but he also fell out. He also stated that he had pushed them out from the

train.

21. We have carefully examined the original records of the Trial Court.

Though, the appellant denied the charges, yet he implicitly accepted that

there was a confrontation between him and the deceased and the injured

Uttam Rai (PW-4) on some issues but as to what led to the confrontation, the

evidence is not clear. While the appellant claimed that the deceased and the

injured had assaulted him, during which process they fell out of the train, he

also states that he had pushed them out of the train.

22. We have given our anxious consideration to the evidences on record.

Before we consider the statement of the appellant recorded under Section 313

Cr.P.C. we will first analyze the evidence of the prosecution witnesses more

particularly, of the evidence of PW-4, the injured victim also survived the fall

from the train on allegedly been pushed by the appellant.

23. As regards other witnesses, namely, PW-2 Ujjal Das and the PW-3

Amzad Ali, who were travelling along with the deceased and the injured, they

apparently did not witness the act of pushing of the deceased and the injured

(PW-4) by the appellant. As mentioned in their evidences, they were informed

by the co-passengers in the train that the appellant had pushed the deceased

and the injured. It is also noted that no co-passenger who had apparently

seen the appellant pushing the deceased and the injured was examined during

the trial. That leaves only the evidence of PW-4 Uttam Rai, who was allegedly

pushed by the appellant out of the train but survived. However, when we

closely examine his evidence we find that though he stated in the

examination-in-chief that the appellant had pushed him out, yet in the cross-

examination he stated that he heard a hue and cry and going there he found

that Girish had already been pushed away. He continues to say in the cross-

examination that he went there immediately after Girish had been pushed out.

As regards the pushing of PW-4 himself allegedly by the appellant, this is what

he stated in the cross-examination:

"When I proceeded, a blow with fisted hand had been dealt to me. People had started coming thereby one by one. I had not recognized the people present in the Court.

I had not fallen outside the coach when the blow with fisted hand had been dealt to me. However, I fell down inside the coach itself, but I do not know what happened after that."

The said statement made by PW-4 in the cross-examination, therefore,

to some extent dilutes his assertion made in the evidence-in-chief that the

appellant had pushed him away from the train. He states in the cross-

examination that after he received the blow with fisted hand, he fell down

inside the coach itself and thereafter he did not know what happened. In

other words, so long as he was conscious, he was inside the coach of the train

and he did not make a specific statement that the appellant had pushed him

when he was conscious though it is quite likely that after he fell down inside

the coach he may have been also pushed, but that will be in the realm of

inference and not on the basis of any direct evidence.

24. Keeping in mind the aforesaid evidence on record, we will now examine

the statement of the appellant recorded under Section 313 Cr.P.C. Though he

makes the statement that there was certain quarrel between him and the

deceased and the injured, he alleged that it was the deceased and the injured

who had assaulted the appellant and they fell down. At the same time, he also

states that he had pushed them out from the train. Though statement of an

accused recorded under Section 313 Cr.P.C. is not evidence on the basis of

which an accused cannot be convicted unless there are corroborating

admissible material evidence on record, the statement certainly can be

considered to understand what actually transpired at that relevant time. On

the basis of the evidence adduced by the prosecution, and the statement of

the appellant made under Section 313 Cr.P.C., what we can say is that there

appears to have been certain physical confrontation between the appellant,

the deceased and the injured. As to the reason for such physical

confrontation, it has not come out very clearly, though the appellant claims

that the deceased and the appellant were consuming wine. But that does not

appear to have been corroborated by the medical evidence as also pointed out

by Ms. R.D. Mazumdar, learned counsel for the respondent No.2, as in the

post-mortem report relating to the condition of the stomach and contents, it

has been recorded that it was healthy and contained 200 ml of partially

digested food materials without specific smell. If wine had indeed been

consumed as alleged by the appellant that would have caused some kind of

odor which would have been detected during the post-mortem examination

which was conducted on the very next day. But since the finding is that the

contents of the stomach were without specific smell, it would perhaps indicate

absence of any alcoholic substance in the stomach. At the same time, what

we have noted is that the real motive or intention for committing the alleged

offence by the appellant has not come out clearly. Though in the statement

recorded under Section 161 Cr.P.C. of PW-4, the injured person, it has been

mentioned that the appellant demanded money, however, we cannot look into

that statement as the same is not admissible in evidence and not being

corroborated by any evidence led during the trial. There is no other evidence

on record to indicate that the appellant had demanded money. Though PW-5

Gokul Das states in his deposition that he was informed that some dacoits

threw the deceased and the injured out from the running train, that itself also

hearsay evidence thus not admissible. Thus, there is no material evidence to

indicate the motive or intention behind the commission of the offence by the

appellant. The appellant apparently appears to be not known to the deceased

or the injured. As stated by him in his statement recorded under Section 313

Cr.P.C. he was coming from Guwahati and there is no evidence on record of

any kind of relationship, strained or otherwise, with the deceased and injured.

Thus, the appellant appears to be one of the co-passengers who are travelling

in the train in the same compartment as the deceased and the injured.

Though the prosecution evidence read with the statement of the appellant

recorded under Section 313 Cr.P.C. indicates that there was a fight between

the appellant, deceased and the injured and they were thrown out by the

appellant, the intention has not been clearly made out. From the record it

appears that the incident happened when there was a fight between them,

during which time the deceased and the injured were pushed out of the train

by the appellant.

25. Under the circumstances, we are inclined to hold that this is not a case

of commission of offence punishable under Section 302 of IPC, but an offence

which is covered by Section 304 Part II as this is a case of culpable homicide

not amounting to murder without intention to kill the deceased but which

happened during a confrontation between them in a running train. However,

by the act of the appellant death has been caused to one person. Accordingly,

we are inclined to convert the conviction under Section 302 of IPC to Section

304 Part II of IPC. Since we have held that the intention or motive of the

appellant to cause the homicidal death of the deceased has not been

established to convict him under Section 302 of IPC, we are also unable to

convict the appellant under Section 307 of IPC in as much as to convict a

person under Section 307 of IPC it is necessary that by such an act, without

the intervening circumstances, he would be guilty of murder. In the present

case, the prosecution case that the appellant intentionally threw the injured

Uttam Rai (PW-4) from the running train has not been proved beyond

reasonable doubt. The said Uttam Rai (PW-4) himself stated during the corss-

examination that when he was hit, he fell inside the train and then he lost his

consciousness. After he fell down in the train, who had thrown him away from

the running train has not been clearly established. Accordingly, we hold that

the prosecution has not been able to prove the charge under Section 307 of

IPC beyond reasonable doubt and accordingly, acquit the appellant of the

charge under Section 307 of IPC.

26. In the result, we convict the appellant under Section 304 Part II of IPC

and sentence the appellant to undergo rigorous imprisonment for a period of 9

years. However, from the record we have seen that the appellant has already

undergone imprisonment more than 9 years and accordingly, he shall be

entitled to be released forthwith. It is ordered accordingly.

27. We have also noted that the learned Trial Court had directed for grant

of compensation under Section 357A of Cr.P.C. to the injured Uttam Rai and

the heir/dependents of the deceased Girish Chandra Das. However, nothing is

on record as to whether any such compensation had indeed been paid to

them.

28. Under the circumstances, the Goalpara District Legal Services Authority

will take necessary steps to facilitate payment of compensation by the State as

directed by the learned Trial Court to the injured Uttam Rai and also to the

heirs/dependents of the deceased Girish Chandra Das in terms of the scheme

prepared by the State of Assam under sub-section 9 of Clause 5 of the Assam

Victim Compensation Scheme, 2012 as notified on 05.03.2016 and which has

also been revised on 01.02.2019. The aforesaid exercise shall be undertaken

by the State with the assistance of the Goalpara District Legal Services

Authority within a period of 2(two) months from the date of receipt of the

certified copy of this order.

29. A copy of this order be furnished to the Secretary, Goalpara District

Legal Services Authority.

30. LCR be sent back forthwith to the concerned Court.

31. Necessary remuneration be paid to Mr. R.M. Choudhury, learned

amicus curiae for the appellant as well as Ms. R.D. Mazumdar for the

respondent No.2 both appointed by the Court, as per rules.

                         Sd/- Susmita Phukan Khaund              Sd/- N. Kotiswar Singh
                                     JUDGE                                JUDGE



             Comparing Assistant