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2002 DIGILAW 205 (GAU)

Jogen Bora v. State of Assam

2002-05-15

I.A.ANSARI, J.N.SARMA

body2002
I. A. ANSARI, J- This an unfortunate case in which we are called upon to decide if the death of Biju Agarwal, who lost his life at the prime age of 25 years, was accidental or homicidal. 2. This appeal has arisen out of the judgment and order, dated 19.9.2000, passed by the learned Sessions Judge, Golaghat, in Sessions Case No. 125/95, convicting the accused-appellant under Section 302 IPC and sentencing him to undergo imprisonment for life and to pay a fine of Rs. 1,0007- and in default, to undergo rigorous imprisonment for a further period of two months. 3. The prosecution's case against the accused-appellant, as unfurled at the trial, may, in brief, be stated thus: In the evening of 21.12.91, deceased Biju Agarwalla was returning home from his shop, at Garanga, in a public bus, which was being run under the name and style of Chandan Jyoti," and when the bus reached near the shop of his father, Radheshyam Agarwalla, at Gomariguri, the deceased was thrown out of the bus through its window. The deceased fell on the road and cried out asking his father to save him. Radheshyam, his wife and some other co-villagers rushed to the place, where Biju had fallen, and found Biju in injured state. After throwing Biju, the bus moved on, but the co-villagers of Biju stood in the way of the bus and restrained its driver from taking the bus away. The appellant, Jogen Bora, whose elder brother owned the bus, alighted from the bus holding a lathi in his hand and threatened Biju and his family members with further assaults. At the intervention of the villagers, the bus was sent to fetch a doctor. Injured Biju was brought home. On being called, Pradip Ojha, a village doctor, arrived there. Holding his lower belly with both his hands, Biju told the doctor, "I have been kicked here". After initial treatment from Pradip Ojha, Biju told his parents that Jogen Bora and others had kicked on his lower abdomen. Biju breathed his last moments thereafter. One Anil Gogoi of Gomariguri went to Merapani Police Station and lodged there a written ejahar (Ext.l). Treating this ejahar as First Information Report, Merapani PS Case No. 113/91 under Section 325/304A/34 IPC was registered. After usual investigation, police laid charge sheet against the appellant and four others under Section 302/34 IPC. 4. Biju breathed his last moments thereafter. One Anil Gogoi of Gomariguri went to Merapani Police Station and lodged there a written ejahar (Ext.l). Treating this ejahar as First Information Report, Merapani PS Case No. 113/91 under Section 325/304A/34 IPC was registered. After usual investigation, police laid charge sheet against the appellant and four others under Section 302/34 IPC. 4. During trial, when a charge framed under Section 302 IPC read with Section 34 IPC was explained to the appellant and three others (accused Dambarudhar Saikia having absconded), all of them pleaded not guilty thereto. 5. In all, prosecution examined 9 (nine) witnesses including the Investigating Officer. The accused were then, examined under Section 313 Cr.P.C. In their examination aforementioned, all the accused, while admitting that they too were present in the bus at the relevant time when Biju had traveled, denied that they had assaulted Biju, the case of the defence being that Biju had fallen from the bus and ran over under its wheels. The defence also adduced evidence by examining a passenger of the bus as a witness. 6. On conclusion of the trial, learned trial Court found the accused-appellant guilty of the charge framed against him and accordingly, while acquitting the rest of the accused, learned trial Court convicted the accused-appellant under Section 302 IPC and passed sentence against him as hereinabove mentioned. Hence, this appeal. 7. The moot point, which falls for determination in the present appeal, is this: whether the finding of guilt arrived at by the learned trial Court is justified on the basis of the evidence on record and law relevant thereto? 8. We have carefully perused the records including the impugned judgment and order. We have heard Mr B.B. Gogoi, learned counsel for the appellant, and Smti B. Rajkhowa, learned Additional Public Prosecutor, for the State respondent. 9. 8. We have carefully perused the records including the impugned judgment and order. We have heard Mr B.B. Gogoi, learned counsel for the appellant, and Smti B. Rajkhowa, learned Additional Public Prosecutor, for the State respondent. 9. On a close scrutiny of the evidence on record, we find that while the prosecution's version of the occurrence is that the deceased was thrown out of the window of the bus and died as a result of injuries sustained by him following assaults on him at the hands of the appellant and his associates, the appellant, on the other hand, while admitting that the deceased was traveling by the said bus and the appellant was present inside the bus, contended that Biju's death was accidental inasmuch as the deceased, while alighting from the bus, fell down, ran over under the wheels of the bus and died as a result of injuries so sustained by him accidentally. 10. We, therefore, consider it appropriate to, first, examine the evidence on record to ascertain if Biju could have died on being accidentally run over by the bus in which he was travelling. 11. Keeping in view the above aspect of the case, when we look into the evidence on record, what our eyes, most prominently, is that according to PW-10 (Dr. R.K. Deka), who had, admittedly, conducted on 22.12.91, post-mortem examination on the deadbody of deceased Biju, following injuries were found: "1) Oedematus swelling present at the testicles of both sides containing blood with injury to the testicles and was defence. 2) Multiple lacerated wound present over both thighs and legs of varying sizes. 3) Cut wounds present over right foot of varying sizes. 4) A haematoma was present at inquinal region. Thorax - healthy, abdomen walls - healthy, peritoneum contained blood clots. Mouth and othopagus healthy, stomach contained water, small and large intenstine-healthy. Other organs were found healthy." 12. PW-9 has also deposed that all the injuries described above were ante-mortem in nature and in his opinion, cause of death was shock and haemorrhage, which had resulted from the injuries sustained by the deceased. 13. In his cross-examination, PW-9 has opined that the case might have been accidental. We have to, now, ascertain, if we may reiterate, if Biju's death was homicidal as had been projected by the prosecution. 14. 13. In his cross-examination, PW-9 has opined that the case might have been accidental. We have to, now, ascertain, if we may reiterate, if Biju's death was homicidal as had been projected by the prosecution. 14. Bearing in mind the above aspects of the medical evidence on record, we, now, come to the evidence of PW-5 (Tankeswar Gogoi). According to the evidence of this witness, his house is situated at a distance of about 300 metres from Biju's house and while he was sitting along with Nabin Gogoi (PW-6) and Jagat Gogoi (PW-7) over a culvert on the road, he noticed the bus named "Chandan Jyoti", with its tape-recorder playing some musical cassette causing a great deal of noise, stopping near Biju's house, something white coming out of the window, located near the driver's seat, he recognised it to be Biju Agarwalla, who cried out saying "Bhayya Moi Morilo" ("brother, I am dying"). PW-5 has clarified, in his cross-examination, that they were sitting on the driver's side, that is, on the right hand side of the driver at a distance of about 6 Nals (i.e., about 48 cubits) from the place, where Biju had fallen. PW-5 has also clarified that though night had fallen, it was a moon-lit night. 15. It is in the evidence of PW-5 that when Biju fell down from the bus, though the bus had stopped, its engine had not been switched off and it drove away immediately thereafter, but he (PW-5) and his companions (i.e., PW-6 and PW-7) stopped the bus, the driver of the bus, namely, Sarbeswar Gogoi (who now stands acquitted) told them that Biju had jumped out of the bus, but when they further asked that if Biju had really fallen through the door, why they had not stopped the bus and why they were fleeing away, the driver did not reply. It is also in the evidence of PW-5 that Biju's parents had come there by then and when Biju's parents asked the driver about the occurrence, Jogen Bora (i.e., the appellant), owner of the vehicle, came with a lathi and said, "Aami Rod Ghair. Chichukar Nahay" (Figuratively: We are sons of the soil, not outsiders). PW-5 has also deposed that by then, the members of the public had gathered there and Biju was taken to his house. 16. Chichukar Nahay" (Figuratively: We are sons of the soil, not outsiders). PW-5 has also deposed that by then, the members of the public had gathered there and Biju was taken to his house. 16. Broadly in tune with the evidence of PW5, PW-6 (Nabin Gogoi) has, we find, deposed that while he (PW-6) along with PW-5 and PW-7 was sitting on the culvert, the bus named Chandan Jyoti came from the direction of Golaghat and a man was seen by him being thrown out of the window of the bus at a distance of about 6 Nals (i.e., about 48 cubits) from his house, they stopped the bus and by that time, they had recognised that the young man, who had been thrown out of the bus, was Biju, who had cried out to his father saying "Father, I am dying". It is in the evidence of PW-5 that he asked the driver and the conductor of the bus to call a doctor, but the driver, conductor and Jogen Bora (i.e., appellant), who too was present inside the bus, became angry and hurled abuses on them. 17. It is in the evidence of PW-6 that hearing Biju's cries, Biju's parents and younger brother, Shankar, had come and when they, too, requested that a doctor be brought, Jogen (i.e., appellant) went to hit them with a bamboo lathi, but other residents of the village also arrived here, they blocked the way of the bus and, then, they went to bring a doctor in the vehicle. 18. Close on the heels of the evidence of PW-5 and PW-6 is the evidence of PW-7 (Jogat Gogoi). This witness too has deposed that it was a moon-lit night and when he along with PW-5 and 6 was sitting on the culvert in front of Dipen Chutia's house, the bus named Chandan Jyoti came from the direction of Golaghat, a man was seen by him thrown out of the window at a distance of about 5/7 nals (i.e. 40/56 cubits) from the place, where they were sitting, and the man cried out, "Bhayya Moi Morilo" ("Brother, I am dying) and on hearing the same, they realised that the man, who had fallen, was Biju, whereupon they stopped the bus and asked that Biju should be taken care of and doctor be brought. It is in the evidence of PW7 that other co-villagers also arrived there and they went to bring a doctor. It is also in the evidence of PW-7 that Biju's parents and their co-villagers brought Biju home. 19. We have closely scrutinised the cross-examination of PW-5,6 and 7 at the hands of defence, but we notice that the defence did not dispute, while cross-examining these three witnesses, the veracity of their evidence given to the effect that it was a moon-lit night, at the relevant time, when the said three witnesses were sitting on the culvert and, therefore, they were in a position to see if any one had fallen or thrown out of the bus's window, located near drivers' seat. It has also emerged that these witnesses realised that it was Biju, when they heard Biju crying out, "Bhayya Moi Morilo". Apart from the fact that these pieces of the evidence have remained completely unchallenged, and disputed, we do not notice anything inherently untrue or false in the evidence of these three witnesses. We, therefore, seen no reason to disbelieve their evidence or not to give their evidence the credit that the same deserve. The only piece of evidence given by PW-6, which the defence disputed was that accused Jogen Bora had attempted to assault Shankar, younger brother of the deceased, but even on this aspect of the evidence given by PW-5 to the effect that accused Jogen Bora had come down from the bus with a lathi, hurled abuses on Biju and his family members have not been disputed by the defence. Furthermore, the evidence given by these witnesses to the effect that though the bus had momentarily stopped, when Biju was thrown ou^, the engine of the bus had not been switched off and, in fact, the bus had proceeded ahead and it was stopped only when PW-5, PW-6 and PW-7 had blocked its way and when their other co-villagers arrived there accused Jogen Bora, i.e, the appellant and others (who were present inside the bus) went in the bus to fetch a doctor. 20. It is also worth noticing that thought it was suggested to PW-7 that Biju had jumped out of the window, while the bus was still moving, nothing was really elicited from the cross-examination of PWs 5, 6 and 7 to show that Biju had jumped out of the window. 20. It is also worth noticing that thought it was suggested to PW-7 that Biju had jumped out of the window, while the bus was still moving, nothing was really elicited from the cross-examination of PWs 5, 6 and 7 to show that Biju had jumped out of the window. Underlying this suggestion is, however, a tacit admission by the defence that Biju fell down from the bus through its window and not from the door, but the question that remains unanswered is as to why Biju would choose to jump out of the window of a running bus. 21. A close scrutiny of the evidence of PW-5, PW-6 PW-7 shows that from the cross-examination of these witnesses, the defence did not succeed in eliciting anything to show that any part of their above evidence is untrue or unbelievable. 22. From a combined reading of the above evidence of PWs-5, 6 and 7, it becomes abundantly clear that according to the evidence of these three witnesses, when they were sitting over the culvert, as discussed herein above, they noticed some object coming out of the bus's wooden window (which had no grills) and falling on the ground and, upon such fall, as the object cried out, "Bhayya Moi Morilo" (Brother, I am dying"), these three witnesses, on hearing the voice, could recognise and realise that it was Biju Agarwal, who had been thrown out of the window of the bus. The evidence on record reveals no conceivable reason, which could impel a passenger, like Biju, to jump out of the window of the bus. From the evidence of PW-5, PW-6 and PW-7, it also clearly transpires that though the bus had halted, while Biju was so thrown out, its engine remained running and it took to its heels immediately thereafter, but PWs 5, 6 and 7 stopped the driver from running away with the bus and, then, they could know as to who the inmates of the bus were. Evidence given by PW-5, PW-6 and PW-7 completely rules out the possibility of Biju having fallen accidentally from the bus and having been run over under the wheels of the bus. 23. It is also worth noticing that though PW-9 (Dr. Evidence given by PW-5, PW-6 and PW-7 completely rules out the possibility of Biju having fallen accidentally from the bus and having been run over under the wheels of the bus. 23. It is also worth noticing that though PW-9 (Dr. R.K. Deka) opined, when he was cross-examined by the defence, that the case could have been accidental also, the injuries sustained by the deceased show that there were only multiple lacerated wounds on the thighs and legs of the said deceased, some cut wounds of varying sizes on the right foot and testicles had been injured and got swollen. 24. A look at the above injuries clearly shows that if a person was run over by a bus, the person would have sustained much more graver injuries, even fracture of those bones, which would have come under the weight of the bus. Absence of any such injury on the bone is another circumstance, which rules out the possibility of Biju dying as a result of being run over by the bus. 25. It is also important to note that it was not put to PW-9 by the defence, as to whether the injuries found by him on the body of the deceased could have been caused, if a bus had run over him. What the defence merely asked PW-9 was whether the case could have been accidental and PW-9 replied in the affirmative. Accidental death does not necessarily mean being run over by a bus. 26. Coupled with the above, it is also extremely important to note that according to the evidence of PW-1 (Radheshyam Agarwal), father of the deceased, on hearing cries of Biju, when they came to the place of occurrence, accused Jogen Bora came down from the bus with a lathi and said, "Is this is not enough for you. Have you not shed your pride yet?" Though the Investigating Officer has confirmed that PW-1 did not make any such statement to him, this is merely an omission and this, in itself, is not sufficient to ignore the assertion of PW-1 that accused Jogen Bora had come down from the bus with a lathi in his hand and remarked as mentioned hereinabove. More so, because we find that even PW-5 has deposed that when Biju's parents asked the driver about the occurrence, Jogen Bora (i.e. the appellant), who was present inside the bus, came out with a lathi and said, "Aami Rod Ghair, Chichukar Nahay" (Figuratively: We are sons of the soil, not outsiders). The defence, we notice, did not dispute these assertions of PW-5. Moreover, even the evidence of PW-6 is that when they requested the driver and owner of the bus that a doctor be brought, the accused Jogen went to hit them with a bamboo lathi, but when other residents of the village also arrived there and blocked the way of the bus the accused relented and went to bring a doctor in their vehicle. The evidence given by PW-5 and PW-6 that accused Jogen alighted from the bus with a lathi, hurled abuses on Biju and his family members and attempted to assault even the younger brother of the deceased has remained unshaken inasmuch as except throwing some suggestions, the defence did nothing to shake these assertions of the prosecution witnesses. The learned trial Court, therefore, rightly concluded that if the incident was accidental one, there was no reason for accused Jogen Bora to come out of the bus with a lathi to hurle abuses on Biju or attempt to further assault the deceased and/or his family members. This aspect of the evidence on record leaves no room for doubt that the injuries sustained by Biju were not accidental and that it was a result of assaults that he had sustained, while traveling inside the bus. 27. Turning to the evidence of DW-1 (Putul Bora), we find that this witness has deposed that on the day of occurrence at about 6.30 p.m., while he was travelling from Golaghat to Bholowguri in the bus named "Chandan Jyoti", Biju boarded the bus at Garanga and when the bus reached Teteliguri (i.e., the place where the occurrence took place), Biju asked the bus to be stopped, but the bus did not stop and when the bus proceeded a little ahead, Biju got down from the bus and was run over by the bus. The bus was stopped and on coming down from the bus, he found that Biju's mother had come and was holding him. The bus was stopped and on coming down from the bus, he found that Biju's mother had come and was holding him. DW-1 says that Biju fell from the rear door and the vehicle was still proceeding slowly, when Biju had fallen down. 28. The evidence of the eyewitnesses, coupled with the medical evidence on record, shows that Biju did not sustain injuries due to any traffic accident. Had there been any such accident, there would have been serious visible injuries like fracture or crushing of bones or smashing of the body under the weight of the bus, but this is not the case here. We have, therefore, no option but to hold that the evidence of DW-1 that Biju was run over by the bus is a complete lie and cannot be accepted. This impression gains strength from the fact that while PW-5, PW-6 and PW-7 were being cross-examined, it was not suggested to any of them that Biju had sustained injuries on being run over by the bus. 29. Having, thus, ascertained that Biju's death was homicidal and having also ruled out the possibility of Biju having died as a result of injuries sustained by him accidentally, we are, now, required to determine if the appellant was responsible for the injuries, which the deceased was found to have sustained leading to his death? Our quest for answer to the above question brings us to the evidence of PW-1 (Radheshyam Agarwalla). According to this witness, his son, deceased Biju Agarwalla, had a grocery shop at Garanga, and some times, he used to come to Gamariguri after closing his shop. 30. As regards the occurrence, PW-1 has deposed that on 21.12.91, at about 7 p.m., while he was present in his shop at Gamariguri, he heard the cry, "Bhayya Morilo" (Brother, I am dying) from the direction of the road, whereupon he alongwith his wife (PW-3) and one Dighola went to the road and found Biju lying on the road. PW-1 has also deposed that with the help of villagers, they brought Biju home. Pradip Ojha, a doctor, was called, the doctor gave Biju an injection, whereupon Biju felt a little better and said that Jogen Bora, owner of the vehicle, had kicked him right and left. After saying those words following the injection given by the doctor, Biju died at home. Pradip Ojha, a doctor, was called, the doctor gave Biju an injection, whereupon Biju felt a little better and said that Jogen Bora, owner of the vehicle, had kicked him right and left. After saying those words following the injection given by the doctor, Biju died at home. PW-1 has clarified that he saw injuries on the hands, legs and private parts of Biju. 31. It is in the evidence of PW-1 that when they reached the place of occurrence, Jogen Bora's bus was standing there and carrying a lathi, Jogen Bora had come down from the bus and said, "Is this not enough for you? Have you not shed your pride yet?, and when villagers arrived, Jogen Bora boarded the bus again. It is also in the evidence of PW-1 that his neighbour, Anil Gogoi, informed the police. 32. Close on the heels of the above evidence of PW-1, PW-3 (who is the mother of the deceased) has deposed that Biju used to call his father "Bhayya". Describing the occurrence, PW-3 has deposed that on 31.12.91, at about 7 p.m., she heard Biju's cry, "Bhayya Morilo (Brother, I am dying)". "Mok Marile (I am being killed)", her husband (PW-1), she and others brought Biju home. It is in the evidence of PW-3 that, the village doctor came and after he gave Biju an injection, Biju said that Jogen Bora and Dambaru Saikia had smashed his private parts and that he would not live. It is also in the evidence of PW-3 that Biju died a little after the doctor had given him the injection. PW-3 has clarified in her evidence that the bus named Chandanjyoti was standing on the road near the deceased. 33. Broadly in tune with the evidence of PWs 1 and 3, PW-2 (Anil Gogoi) has deposed that his house is at a distance of about 20/25 Nals (i.e. 160/200 Cubits) from the shop of PW-1 and on the day of occurrence, at about 6.30 or 7.00 p.m., on his way to his shop, when he was passing from near the shop of PW-1, he heard cry, "Bhayya Bachao", he recognised that the voice was of Biju, who used to call his father as "Bhayya", and when he went forward, he found Biju lying on the ground, the bus named "Chandan Jyoti" was standing there and accused Jogen Bora was present inside the bus. PW-2 has also deposed that Biju's father carried Biju home and, on being asked by Biju's family he (PW-2) went to Thana on a scooter and some one was sent for calling a village doctor. PW-2 has also deposed that he lodged a written ejahar (Ext.l) at the Thana, police came to their village on the night of the occurrence itself and seized the bus. 34. In his cross-examination, PW-2 has clarified that PW-1 had reached the place of occurrence a little before PW-2 arrived there and about 15 minutes thereafter, he (PW-2) left for Merapani Police Station, which is at a distance of about 4 kms, and lodged there ejahar stating that Biju had died. 35. On a close reading of the evidence of PW-1, PW-2 and PW-3, it becomes abundantly clear that on hearing Biju's cry to the effect, "Bhaiyya Morilo", PW-1, PW-2 and PW-3 came to the place, where PW-5, PW-6 and PW-7 had seen and found Biju having landed on being thrown from inside the bus to the road through the window. PW-1 had reached before PW-2 arrived there and accused Jogen was present in the bus. 36. From the evidence of PW-1 and PW-3, it also transpires that after Pradeep Ojha had pushed injection, injured Biju felt a little relieved and said that Jogen Bora, owner of the bus, had kicked him right and left. It has been pointed out before us on behalf of the appellant, that PW-1 has admitted, in his cross-examination, that he did not state before the police as to what his son had told him before his death. Though the omission, so pointed out by the defence, is an important omission, yet it is to our mind, quite possible that in the state of tension and anxiety in which PW-1 had been placed, on finding his son, suddenly, breathing his last, in the gruesome circumstances discussed hereinabove, PW-1, while getting his statement recorded by the police, might not have been able to give all essential details of the occurrence. More so, because the defence has not asked the Investigating Officer if he (PW-10) had enquired from PW-1 as to whether the deceased had revealed the name of his assailants. More so, because the defence has not asked the Investigating Officer if he (PW-10) had enquired from PW-1 as to whether the deceased had revealed the name of his assailants. Even if, for a moment, we keep the evidence given by PW-1, with regard to Biju's dying declaration, a little away from consideration, we are unable to ignore the evidence of PW-3, mother of the deceased, who has, in no uncertain words, deposed that Biju had said Jogen Bora and Dambaru Saikia had smashed his private parts because these assertions of PW-3 have remained, we notice, untouched and unshaken by defence. Even PW-4, Pradeep Ojha, who came as a village doctor, admits that holding his lower belly with his hands, injured Biju had said, "Please save my life, I have been kicked here". This piece of evidence given by PW-4 has also remained unchallenged and undisputed by defence. The evidence so given by PW-4 not only rules out the possibility of Biju having sustained injury in any vehicular accident, but that these assertions of PW-4 lend great support to the uncontroversial evidence of PW-3 that Biju had told that Jogen and Dambaru had smashed his private parts. It is worth noticing that though it was suggested to PW-3 by the defence that he did not tell the police that Biju had named Jogen Bora and Dambaru Saikia as persons, who had assaulted him, nothing was elicited by the defence from the Investigating Officer PW-8) to show that no such statement was made by PW-3 to the police. Thus, the said assertion of PW-3 have remained undisputed and cannot, therefore, be ignored. 37. What crystallizes from the above discussion is that the windows of bus was not fitted with rods/grills and, hence, a man could have been thrown out of the bus through its windows. The unshaken evidence of PW-5, PW-6 and PW-7, coupled with the evidence of the independent witness, Pradip Ojha (PW-4) given to the effect that Biju had said that he had been kicked on his lower abdomen, convincingly proves that Biju was injured inside the bus and, then, he was thrown out of the bus through its window. The learned trial Judge has elaborately discussed the evidence given by these three witnesses and we see no reason to differ from the views adopted by the learned trial Judge. 38. The learned trial Judge has elaborately discussed the evidence given by these three witnesses and we see no reason to differ from the views adopted by the learned trial Judge. 38. On a deeper scrutiny of the evidence on record, it also emerges clearly, in the light of the evidence of PWs 1, 3 and 4, that after PW-4 had pushed injection, Biju felt slightly relieved and said that Jogen had smashed his private parts and a few moments after making this statement, Biju breathed his last. This piece of oral statement made by the deceased, moments before his death, is a vital piece of information, which implicates accused Jogen Bora specifically. The evidence of PWs 1,5 and 6 further reveals that accused Jogen was not satisfied that Biju was lying seriously injured on the road inasmuch as he came out of the bus with a lathi in his hand, hurled abuses on Biju and attempted to assault further the deceased and his family members. If the deceased had met with accidental death, there was no reason for the appellant to come down from the bus with a lathi in his hands and further threaten the deceased and his family members. 39. The evidence on record also shows that after throwing Biju from the bus through its window, the bus did not give slightest indication that it was going to stop. It was, in fact, stopped only when it was intercepted by PWs 5, 6 and 7 with the help of their co-villagers. This fact too shows the guilty mind of the accused. If the incident was really an accident, there was no reason for the employees and younger brother of the owner of the bus to flee away; rather, they would have been making arrangements for treatment of the injured. The evidence on record further discloses that it was on efforts made by the villagers that Jogen Bora, (who was the younger brother of the owner of the bus), and other employees of the bus agreed to fetch a doctor in the said bus. 40. It is true that in the case before us, there is no eyewitness to reveal what exactly had happened inside the bus. 40. It is true that in the case before us, there is no eyewitness to reveal what exactly had happened inside the bus. There is, however, ample evidence on record, which reveals that the deceased was coming home by the bus in which the appellant was also present and it is appellant's elder brother, who owned the bus. The evidence also reveals that the deceased, moments before his death, told PW-4, who had come to treat Biju, that he had been kicked at his lower abdomen. The evidence on record further reveal that the appellant had not fallen from the bus nor was he run over by the bus. The evidence on record, rather, eloquently speak that Biju was thrown out of the window of the bus after having been kicked on his lower abdomen, so seriously injuring his testicles that shortly after sustaining the injuries, injured Biju breathed his last. It also surfaces from the evidence on record that when the injured was giving his last cry for help to his father, the bus from which he had fallen, instead of halting, was moving away, but it was intercepted. All these circumstances go to show that Biju was not accidentally injured, but was assaulted. Coupled with this, the dying declaration of the deceased, materially corroborated by medical evidence, shows that it was appellant Jogen Bora, who was responsible for giving kicks on the lower abdomen of the injured Biju. This impression gets further strengthened from the fact that when the family members and neighbours of the injured assembled at the place, where Biju had fallen on having been thrown, the appellant Jogen Bora came down with a lathi from the bus, hurled abuses on the injured and even attempted to assault the dying man and his family members indicating thereby that the appellant was not satisfied that Biju had been sufficiently thrashed. 41. Situated thus, there is no escape from conclusion that the appellant had injured Biju either with the intention to cause death or, at least, with the knowledge that Biju would, in all probability, die if he was kicked with force on his testicles. Viewed from this angle, his conviction for offence of murder under Section 302 IPC is, in our view, wholly justified and we see no reason to take a view different from the one, which the learned trial Court has adopted. Viewed from this angle, his conviction for offence of murder under Section 302 IPC is, in our view, wholly justified and we see no reason to take a view different from the one, which the learned trial Court has adopted. We are, therefore, of the firm opinion that the finding of guilt reached by the learned trial Court against the appellant is logical, correct and legally justified. We see no reason to interfere with the conviction of the appellant and/or the sentence passed against him. 42. In the result and for the reasons discussed above, this appeal fails and is accordingly dismissed. The impugned judgment and order are maintained. The bail bond of the appellant is cancelled and he is directed to surrender forthwith before the learned Chief Judicial Magistrate, Golaghat, to serve out the sentence passed against him. Send back forthwith the case record to the learned Court below.