CHAITU GOWALA AND ANOTHERversusTHE STATE OF ASSAM

190                      [2022]REPORTS
               SUPREME COURT    7 S.C.R. 190               [2022] 7 S.C.R.


A                   CHAITU GOWALA AND ANOTHER
                                       v.
                           THE STATE OF ASSAM
                       (Criminal Appeal No. 325 of 2020)
B                           SEPTEMBER 07, 2022
               [M. R. SHAH AND KRISHNA MURARI, JJ.]
             Penal Code, 1860 – ss. 302 and 149 – Appellants alongwith
      70 other accused persons were accused of murdering the Managing
      Director of a company in which they were working – Prosecution
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      examined three eye witnesses who identified the appellants – Trial
      Court convicted appellants and sentenced them to life imprisonment
      – High Court confirmed the conviction – On appeal, held : On
      considering the disposition of the eye witnesses nothing is
      forthcoming that appellants caused any injury to the deceased and
D     participated in any manner in commission of the offence – There
      were some disputes with respect to wages and appellants were present
      at the incident site as office bearers of the labour union – It has
      come on record that appellant-Chaitu Gowda told something to the
      labourers in their own language following which the labourers
      became very agitated – But nothing on record what was uttered by
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      the accused – In absence of any concrete evidence, the appellants
      cannot be convicted u/s.302 IPC with the aid of s.149 IPC –
      Impugned judgment of High Court and trial court quashed and set
      aside.
            Allowing the appeal, the Court
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            HELD: On considering deposition of the eye witnesses,
      PW3, PW4 and PW6, nothing is forthcoming that the appellants
      caused any injury on the deceased and/or participated in any
      manner in commission of the offences for which they are
      convicted. If the entire evidence and the deposition of the eye
G     witnesses are scanned, it appears that in fact the appellants were
      present there as office bearers of the Union. There were some
      disputes with respect to wages. Even as per the deposition of
      PW3, on being called, the appellants entered into the office room
      but soon both of them came out and told the assembled labourers
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                                      190
CHAITU GOWALA AND ANOTHER v. THE STATE OF ASSAM                          191


that the Managing Director would distribute their dues and asked         A
them to go to the place where dues were to be distributed. Despite
the same, the labourers protested that they would not accept
anything other than the full dues and they started shouting. The
other labourers – co-accused snatched the carbine of the PSO
and to that the deceased – Managing Director asked the appellant
                                                                         B
– Chaitu Gowala as to why the weapon of PW3 was snatched, he
being a public servant. It has come on record that on this, the
appellant – Chaitu Gowala told something to the labourers in their
own language following which the labourers became very agitated.
Nothing is on record what was uttered by the accused – Chaitu
Gowala. Therefore, in absence of any concrete evidence that the          C
appellants attacked and/or caused any injury to the deceased and/
or even the PSO and in absence of any evidence what was uttered
by the appellants – accused in their own language and in absence
of any evidence that the appellants instigated the labourers –
others co-accused, the appellants cannot be convicted for the
                                                                         D
offence under Section 302 IPC with the aid of Section 149 IPC.
The conviction of the appellants, for the offences for which they
are convicted is unsustainable. [Para 5][193-B-H; 194-A]
      CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
325 of 2020.
                                                                         E
      From the Judgment and Order dated 04.12.2018 of the High Court
of Gauhati at Gauhati in Criminal Appeal No. 62 of 2013.
      Manish Goswami, Rameshwar Prasad Goyal, Advs. for the
Appellants.
      Ms. Diksha Rai, Ms. Ragini Pandey, Debojit Borkakati, Advs. for    F
the Respondent.
      The Judgment of the Court was delivered by
      M. R. SHAH, J.
      1. Feeling aggrieved and dissatisfied with the impugned judgment   G
and order dated 04.12.2018 passed by the Division Bench of the Gauhati
High Court in Criminal Appeal No. 62/2013, by which the High Court
has dismissed the said appeal and has confirmed the conviction of the
appellants herein – Chaitu Gowala and Ajay Ahari - original accused
                                                                         H
192             SUPREME COURT REPORTS                             [2022] 7 S.C.R.


A     Nos. 2 & 1 respectively, convicting them for the offences under Sections
      302/392/148/323/149 IPC and sentencing them to undergo life
      imprisonment, original accused Nos. 2 & 1– Chaitu Gowala and Ajay
      Ahari respectively have preferred the present appeal.
             2. The appellants herein along with other co-accused (70 in
B     numbers) were tried for the offences under Sections 302/392/148/323/
      149 IPC for having committed the murder of one Rupak Kumar Gogoi,
      Managing Director of the Company in which the accused persons were
      working. At the relevant time, the appellants herein were the President
      and Secretary of the Union. The prosecution examined PW3, PW4 and
      PW6 as eye witnesses who had identified the appellants and others
C     accused. On conclusion of the trial and on appreciation of evidence, the
      trial Court acquitted 57 accused, however, convicted 13 accused including
      the appellants herein for the aforesaid offences and sentenced them to
      life imprisonment and also awarded different sentences for other
      offences. That the conviction of the thirteen accused including the
D     appellants herein came to be confirmed by the High Court, by the
      impugned judgment and order.
             2.1 In all, six accused filed the present appeal/special leave petition.
      However, by order dated 25.03.2019, the special leave petition qua
      petitioner Nos. 3 to 6 came to be dismissed. Therefore, the present
E     appeal is for the remaining accused, namely, Chaitu Gowala and Ajay
      Ahari – original accused Nos. 2 & 1 respectively.
              3. Learned counsel appearing on behalf of the accused has
      vehemently submitted that as such there is no evidence against the
      appellants that they caused any injury to the deceased and/or participated
F     in commission of the offences for which they are convicted. It is submitted
      that in fact the appellants were there as office bearers of the Union and
      when the talks were going on, the labourers gathered and attacked. It is
      submitted that in fact the appellants tried to control the situation, however,
      the mob attacked the deceased – Managing Director who succumbed
      to the injuries. It is submitted that there is no evidence that the appellants
G     herein even instigated the mob. It is submitted that even considering the
      deposition of the eye witnesses as it is, it cannot be said that the appellants
      have committed any offence for which they are convicted, more
      particularly Section 302 IPC. Learned counsel appearing on behalf of
      the appellants has taken us to the deposition of the relevant witnesses.
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CHAITU GOWALA AND ANOTHER v. THE STATE OF ASSAM                               193
                [M. R. SHAH, J.]

       4. On the other hand, learned counsel appearing on behalf of the       A
State while opposing the present appeal has submitted that it has come
on record from the deposition of eye witnesses PW3, PW4 and PW6
that the appellants who were the office bearers came out when the mob
came and then they spoke something in their own language. It is submitted
that therefore the appellants are rightly convicted with the aid of Section
                                                                              B
149 IPC. Learned counsel appearing on behalf of the State has taken us
to the deposition of PW3, PW4 and PW6.
        5. We have heard learned counsel appearing on behalf of the
respective parties at length. We have gone through in detail the judgment
and order passed by the trial Court as well as the impugned judgment
and order passed by the High Court. We have also considered in detail         C
the deposition of the relevant witnesses, more particularly PW3, PW4
and PW6, who were the eye witnesses. On considering deposition of
the eye witnesses, nothing is forthcoming that the appellants caused any
injury on the deceased and/or participated in any manner in commission
of the offences for which they are convicted. If the entire evidence and      D
the deposition of the eye witnesses are scanned, it appears that in fact
the appellants were present there as office bearers of the Union. There
were some disputes with respect to wages. Even as per the deposition
of PW3, on being called, the appellants entered into the office room but
soon both of them came out and told the assembled labourers that the
Managing Director would distribute their dues and asked them to go to         E
the place where dues were to be distributed. Despite the same, the
labourers protested that they would not accept anything other than the
full dues and they started shouting. The other labourers – co-accused
snatched the carbine of the PSO and to that the deceased – Managing
Director asked the appellant – Chaitu Gowala as to why the weapon of          F
PW3 was snatched, he being a public servant. It has come on record
that on this, the appellant – Chaitu Gowala told something to the labourers
in their own language following which the labourers became very agitated.
Nothing is on record what was uttered by the accused – Chaitu Gowala.
Therefore, in absence of any concrete evidence that the appellants
attacked and/or caused any injury to the deceased and/or even the PSO         G
and in absence of any evidence what was uttered by the appellants –
accused in their own language and in absence of any evidence that the
appellants instigated the labourers – others co-accused, we are of the
opinion that the appellants cannot be convicted for the offence under
Section 302 IPC with the aid of Section 149 IPC. We are of the firm           H
194              SUPREME COURT REPORTS                        [2022] 7 S.C.R.


A     view that the conviction of the appellants, namely, Chaitu Gowala and
      Ajay Ahari for the offences for which they are convicted is unsustainable.
             6. In view of the above and for the reasons stated above, the
      impugned judgment and order passed by the High Court qua the
      appellants herein and that of the trial Court convicting the appellants
B     Chaitu Gowala and Ajay Ahari for the offences under Sections 302/392/
      148/323/149 IPC are hereby quashed and set aside. However, the
      impugned judgment of the High Court and that of the trial Court convicting
      the other accused are already confirmed. The appellants herein – Chaitu
      Gowala son of Karma Gowalla and Ajay Ahari son of Late Samro Ahari,
      original accused Nos. 2 & 1 respectively are hereby acquitted for the
C     offences for which they were tried and convicted. They be released
      forthwith, if not required in any other case.
             7. The instant appeal is allowed accordingly.


D     Bibhuti Bhushan Bose                                        Appeal allowed.
      (Assisted by : Shubhanshu Das, LCRA)




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