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2010 DIGILAW 141 (GAU)

Bogai Bora v. State of Assam

2010-02-23

A.C.UPADHYAY, J.CHELAMESWAR

body2010
JUDGMENT A.C. Upadhyay, J. 1. This appeal is directed against the judgment and order dated 24.3.2006 passed by the learned ad hoc Additional Sessions Judge, North Lakhimpur, Lakhimpur in Sessions Case No. 50(NL)/04 (GR Case No. 146/03), whereby the appellant was convicted under Section 304, Part-I of the IPC and sentenced to undergo rigorous imprisonment for life and to pay fine of Rs. 5,000, in default of payment of fine to undergo R.I., for another one year. 2. The facts necessary for disposal of this appeal, may be narrated in brief as follows; On 31.1.2003 around 8 O'clock in the morning" as an upshot to a boundary dispute, the accused above named, assaulted the deceased by hacking him on his neck with a 'dao' (a sharp cutting weapon). As a result of the injury caused, the deceased immediately succumbed to death. The occurrence took place in the residential compound of the deceased. On the same day, i.e., 31.1.2003 Shri Kamala Saikia, (PW1) lodged a written 'ejahar' at the Laluk Police Out Post. The in-charge of the Police Out Post after making entry of the report in the General Diary of the Out Post forwarded the ejahar to the Officer in-charge, Bihpuria Police Station for registration of a case. The Officer in-charge, Bihpuria Police Station registered a case under Section 302, IPC and issued direction to the in-charge of the Laluk Police Out Post to launch investigation of the case. 3. During the course of investigation, inquest over the dead body was conducted by the Executive Magistrate, Lakhimpur in presence of the witnesses and thereafter the post mortem examination on the dead body was carried out by Dr. Pradip Medhook, (PW11) SDM and H.O., at Lakhimpur. The Investigating Officer (I.O.), during the course of investigation seized a 'dao' with a long handle, on being produced by Smt. Jonali Bora, (PW6) and blood stained 'dhoti', which was put on by the deceased at the time of occurrence. The Investigating Officer (I.O.), also seized one spade and a blood stained 'gamocha' from the place of occurrence. On completion of the investigation the I.O., submitted charge sheet alleging commission of offence under Section 302, IPC. 4. The learned Judicial Magistrate (First Class), North Lakhimpur, Lakhimpur, on submission of charge sheet against the accused, committed the case to the court of learned Sessions Judge, Lakhimpur for trial. On completion of the investigation the I.O., submitted charge sheet alleging commission of offence under Section 302, IPC. 4. The learned Judicial Magistrate (First Class), North Lakhimpur, Lakhimpur, on submission of charge sheet against the accused, committed the case to the court of learned Sessions Judge, Lakhimpur for trial. The Sessions Judge thereafter transferred the case to the court of learned Ad hoc Addl. Sessions Judge, Lakhimpur, for disposal. 5. During consideration of charge against the accused, the learned Ad hoc Audl. Sessions Judge (FTC); upon hearing learned Counsel for the parties finding sufficient materials under Section 302, IPC against the appellant, framed a formal charge in writing under the aforesaid section of law. On reading over and explaining the charge aforesaid the appellant pleaded not guilty and claimed to be tried. 6. During course of trial, the learned Ad hoc Addl. Sessions Judge (FTC) examined in all 12 witnesses including the Doctor (PW11), who carried out the post mortem examination of the deceased and the Investigating Officer (PW12) of the case. On completion of examination of the evidence of prosecution witnesses, the learned Sessions Judge recorded statement of the accused as per the provision of Section 313, Cr.PC. In his statement under Section 313, Cr.PC, the accused took the plea of total denial and further affirmed that his boundary drain and the path leading to his land was closed by witnesses, namely, Khageswar (PW10), Tupiram (PW9) and Priyaram (PW3). The accused further stated that the O.C. (Officer in-Charge), on being informed about the problem, came for inspection with the 'Gaonbourah' (village headman) and told him to raise the fencing after demarcation of the boundary. On the date of incident, as stated by the accused, he was digging the drain in boundary land, at that moment, deceased Bijendra, along with his brothers, Topiram, Khageswar and sister-in-law Beauty Bora came and stuck at his hand and Khageswar threw away the spade. They also abused him and assaulted him with fist and blows as a result of which his tooth was uprooted and he also received injuries on his nose. On hearing the alarm raised by him when his wife Dasami Bora and daughter Dikon Bora (DW3) came out they were also assaulted by Bijendra (deceased) and others. 7. They also abused him and assaulted him with fist and blows as a result of which his tooth was uprooted and he also received injuries on his nose. On hearing the alarm raised by him when his wife Dasami Bora and daughter Dikon Bora (DW3) came out they were also assaulted by Bijendra (deceased) and others. 7. Accused further stated that witness Tupiram (PW9) dealt a dao blow on the head his wife Dasami, and his daughter also received injury on her finger. After that his son Pawan came to the place of incident and took his wife, to the residence. At that point of time on being pushed by Khageswar (PW10) accused ran away from the place of incidence. The accused could not say as to how Bijendra (deceased) was injured. His wife told him that Topiram had assaulted her. He did not witness who assaulted his wife since at that moment, Bijendra and his brothers assaulted him right and left. Accused stated that he proceeded towards the police station after running away from the place of occurrence. But on his way to the police station he was caught and kept confined at Padmapur by Khageswar (PW10), Tupiram (PW9) and others. Accused further stated that in the police station when the Investigating Police Officer enquired from him about the weapon of assault he had informed him that they fought among themselves and got injured. Accused further acknowledged that he had gone towards the Police Station in a cycle belonging to Sisuram. The daughter of the accused also filed an ejahar at the Police Station. In the police station a doctor examined the accused physically. 8. In order to establish attack and injury to the accused and his family members by the deceased and the witnesses on the date of occurrence, the defence also adduced evidence of three defence witnesses including two Doctors, who had examined the accused, his wife and his daughter after the occurrence, for the injuries sustained by them. The defence witnesses also exhibited the injury reports of the accused, his wife and his daughter Miss Dikon Bora (DW3). DW3 also exhibited certified copy of the ejahar filed by her in the police station. The relevant GR Case record, which was registered by the local police, was also called for by the learned Sessions Court during trial. The defence witnesses also exhibited the injury reports of the accused, his wife and his daughter Miss Dikon Bora (DW3). DW3 also exhibited certified copy of the ejahar filed by her in the police station. The relevant GR Case record, which was registered by the local police, was also called for by the learned Sessions Court during trial. On conclusion of the trial the accused was convicted and sentenced as aforesaid giving rise to this appeal. 9. We have heard Smt. D. Borgohain, learned Counsel appearing on behalf of the appellant as well as Mr. Z. Kamar, learned P.P., Assam. 10. Learned Counsel for the appellant submitted that the prosecution side failed to establish commission of offence alleged against the accused by adducing cogent and reliable evidence, and also contended that the so-called eye-witnesses gave contradictory statements regarding the sequence of events in which the alleged offence was committed by the appellant. Learned Counsel further pointed out that the prosecution side did not explain and clarify the injuries sustained by the deceased during the course of occurrence, which gave rise to sufficient scope to distrust the truthfulness of the prosecution account. Learned Counsel further emphasized on the fact that the evidence led by the prosecution could not prove the charge against the accused beyond all reasonable doubts to sustain a conviction under Section 304, Part I, IPC. 11. Mr. Z. Kumar, Learned Public Prosecutor, supporting the conviction recorded by the learned Sessions Judge, succinctly analyzed the sequence of events, which led to the commission of offence, in order to rule out possibility of any doubts in the prosecution version of the case. Learned Public Prosecutor, contended that the injury, if any, sustained by the accused and the family members is so negligible that such injuries can not be attributed to be the result of any overt action by the deceased and other witness. He further submitted that all such injuries sustained by the accused and his family members may have been caused in all probability after the death of the deceased. 12. At the very outset, we propose to thrash out the important evidence tendered by the prosecution witnesses. The Prosecution side has examined direct eye-witnesses to the occurrence, namely, Smt. Nalini Bora (PW5) wife of the deceased, Smt. Jonali Bora (PW6), Smt. Beauty Bora (PW7) and Smt. Bijumoni Phukan (PW8). 12. At the very outset, we propose to thrash out the important evidence tendered by the prosecution witnesses. The Prosecution side has examined direct eye-witnesses to the occurrence, namely, Smt. Nalini Bora (PW5) wife of the deceased, Smt. Jonali Bora (PW6), Smt. Beauty Bora (PW7) and Smt. Bijumoni Phukan (PW8). There were other witnesses who arrived at the site of occurrence immediately after the incident and they were informed about the occurrence by the above named four eye-witnesses. It would be apposite to discuss the evidence on record to ascertain the truthfulness of the prosecution story and also to evaluate the points raised in the arguments advanced on behalf of the respective parties. 13. PW5 Smt. Nalini Bora, wife of the deceased, in her deposition stated that on the date of the occurrence, around 8 O'clock in the morning she was washing utensils by the side of the well in the courtyard. House of the accused/appellant was situated bordering to the house of the deceased, and they shared a common boundary. At the time of occurrence the deceased, who worked in a Bank, was getting ready to leave for his office. The accused, who was digging a drain on his boundary to raise bamboo fencing requested the deceased to see the alignment of the boundary drain. On being requested by the accused her husband had gone up to the boundary of their land and told the accused that had no time to see whether it was straight or not since he was getting late for office. By stating these words when the deceased was about to leave the place by turning back suddenly accused took out a dao from a nearby banana plant and dealt with a dao blow on the neck of her husband from behind. 14. PW5 further stated that after the occurrence the accused starred at them with the dao in his hand, then, she along with other eye-witnesses, namely, Miss Jonali Bora, (PW6), Beauti Bora, PW7 and Smt. Bijumoni Phukan, PW8, went forward. Then the accused tossed the 'dao' and ran away from the place of occurrence. Her elder brother Kamala Saikia (PW1) came to their house and enquired about the unpleasant incident. PW5 narrated the occurrence to PW1 and accordingly PW1 had informed Police by filing ejahar. 15. Cross-examination of PW5 by the defence did not generate substantial support to the defence stand. Her elder brother Kamala Saikia (PW1) came to their house and enquired about the unpleasant incident. PW5 narrated the occurrence to PW1 and accordingly PW1 had informed Police by filing ejahar. 15. Cross-examination of PW5 by the defence did not generate substantial support to the defence stand. PW5 denied that she had not stated before Police that when her husband turned back accused gave 'dao' blow on the neck of her husband from behind. She further affirmed regarding holding of a village 'mel' (local adjudication) to sort out the boundary dispute between the two nighbours. PW5, however, denied that she had not stated before Police about the incident to her brother Kamala Saikia (PW1). 16. By corroborating the testimony of PW5 in material particulars Jonali Bora PW6, stated that at the time of occurrence she was waiting to take bath near the well in the courtyard at around 8 O'clock in the morning. Her sister-in-law, PW5 was washing utensils. Her husband's elder brother Bijendra (deceased) after taking bath was all set to offer prayers in the sacred place in the house. At that moment accused called Bijendra to monitor the alignment of the drain in their boundary line. On repeated request when deceased had gone near the boundary accused took out a long dao and gave a dao blow on the person of the deceased as a result of which, he fell down at the place of occurrence. PW6 then raised an alarm. The accused got scared and ran away leaving behind the 'dao' at the place of occurrence. PW6 stated to have handed over the 'dao' to the I.O. 17. PW 6 in her cross-examination admitted that daughter of the accused had filed a case against them for the same incident that took place on the date of occurrence. PW6 denied that on the date of the incident she, along with her husband, her brother-in-law Tupiram, deceased Bijendra and his wife, had gone to assault the accused while the accused was digging the drain and also denied that they had assaulted and inflicted injuries to them. She further stated that the accused took out the dao out from the banana tree at the time assaulting the deceased. 18. On the day of incident in the morning, PW7 was cleaning cowshed. Deceased Bijendra, elder brother of her husband, went to offer prayer. She further stated that the accused took out the dao out from the banana tree at the time assaulting the deceased. 18. On the day of incident in the morning, PW7 was cleaning cowshed. Deceased Bijendra, elder brother of her husband, went to offer prayer. Accused, who was digging a drain in their common boundary called Bijendra to see the alignment of the boundary drain. When Bijendra went to the place accused brought out a dao out of the banana trees and dealt a dao blow on the neck of Bijendra and as a result of which the deceased immediately fell down near the drain. She raised an alarm hearing that nearby people assembled. 19. Smt. Bijumoni Phukan, (PW8) sister of Smt. Beuti Bora, (PW7), is another eye-witness. In her deposition she stated that on the day of incident, she was in the house of her sister, Beuti Bora. By corroborating the testimony of other witnesses, PW8 stated that the accused and the deceased had a common boundary, which was contiguous to the house of her sister. The accused, who was digging a drain in the common boundary, called the deceased, Smt. Bijumoni Phukan, to the site of digging the boundary drain. In response to the call, he had gone with the accused. When he was about to leave the place at that time the accused gave a Dao blow to the deceased from behind. The deceased fell down on the ground. 20. Every one of the eye-witnesses to the occurrence has almost consistently supported prosecution account. PW5, Smt. Nalini Bora, in her statement, affirmed the presence of other eye-witnesses at the time of occurrence. P Ws6, 7 and 8 respectively corroborated, in their deposition, with the testimony of PW5 in material particulars to confirm the complicity of the accused in the commission of offence alleged. The defence could not dislodge the testimony of these witnesses by way of cross-examination. Nothing was elicited during the course of cross-examination of the eye-witnesses. 21. Learned Counsel for the accused drawing our attention to the testimony of PW 6, 7 and PW8 submitted that the eye-witnesses contradicted with each other in respect of taking out of the weapon of assault, i.e., 'dao' from the 'banana tree'. Nothing was elicited during the course of cross-examination of the eye-witnesses. 21. Learned Counsel for the accused drawing our attention to the testimony of PW 6, 7 and PW8 submitted that the eye-witnesses contradicted with each other in respect of taking out of the weapon of assault, i.e., 'dao' from the 'banana tree'. Whereas PW5 and PW7 stated that the accused took out the dao from a banana tree and assaulted the deceased, whereas PW6 and 8 did not indicate taking out of the dao by the accused from the banana tree. Learned Counsel for the appellant submitted that the accused cannot convicted on the evidence of the eye-witnesses who contradicted in material facts. Learned Counsel for the appellant was also critical of the fact that all the eye-witnesses belonged to the same family and submitted that the witnesses teamed up to cook the story of assault by the accused, but in reality the deceased and his family members were the aggressors. 22. In State of Rajasthan v. Kalki (1981) 2 SCC 752 , hon'ble Supreme Court analyzing the above situation held that in the depositions of witnesses, there are always 'normal discrepancies', however, honest and truthful the witness may be. These discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of the occurrence, and the like. Material discrepancies are those, which are not normal, and not expected of a normal person. 23. Hon'ble Supreme Court in Gangadhar Behera and Ors. v. State of Orissa (2002) 8 SCC 381 referring to the State of Rajasthan (supra), further stretched the interpretation of normal discrepancies in evidence of witnesses and also explained the inapplicability of the doctrine of "falsus in uno, falsus in omnibus" (false in one thing, false in everything) as follows: 15....Stress was laid by the accused-appellants on the non-acceptance of evidence tendered by some witnesses to contend about desirability to throw out the entire prosecution case. In essence prayer is to apply the principle of "falsus in uno, falsus in omnibus" (false in one thing, false in everything). This plea is clearly untenable. In essence prayer is to apply the principle of "falsus in uno, falsus in omnibus" (false in one thing, false in everything). This plea is clearly untenable. Even if a major portion of the evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, notwithstanding acquittal of a number of other co-accused persons, his conviction can be maintained. It is the duty of the court to separate the grain from the chaff. Where chaff can be separated from the grain, it would be open to the court to convict an accused notwithstanding the fact that evidence has been found to be deficient to prove guilt of other accused persons. Falsity of a particular material witness or material particular would not ruin it from the beginning to end. The maxim "falsus in uno, falsus in omnibus" has no application in India and the witnesses cannot be branded as liars. The maxim "falsus in uno, falsus in omnibus" has not received general acceptance nor has this maxim come to occupy the status of rule of law. It is merely a rule of caution.' ...Therefore, it has to be appraised in each case as to what extent the evidence is worthy of acceptance, and merely because in some respects the court considers the same to be insufficient for placing reliance on the testimony of a witness, it does not necessarily follow as a matter of law that it must be disregarded in all respects as well. The evidence has to be sifted with care. The aforesaid dictum is not a sound rule for the reason that one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishment. [See Sohrab v. State of M.P. (1972) 3 SCC 751 and Ugar Ahir v. State of Bihar AIR 1965 SC 277 ], An attempt has to be made to, as noted above, in terms of felicitous metaphor, separate the grain from the chaff, truth from falsehood. [See Sohrab v. State of M.P. (1972) 3 SCC 751 and Ugar Ahir v. State of Bihar AIR 1965 SC 277 ], An attempt has to be made to, as noted above, in terms of felicitous metaphor, separate the grain from the chaff, truth from falsehood. Where it is not feasible to separate the truth from falsehood, because grain and chaff are inextricably mixed up, and in the process of separation an absolutely new case has to be reconstructed by divorcing essential details presented by the prosecution completely from the context and the background against which they are made, the only available course to be made is to discard the evidence in toto. [See Zwinglee Ariel v. State of M.P. AIR 1954 SC 15 and Balaka Singh v. State of Punjab (1975) 4 SCC 511 ]. As observed by this Court in State of Rajasthan v. Kalki (1981) 2 SCC 752 normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there, however, honest and truthful a witness may be. Material discrepancies are those, which are not normal, and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorized. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so. These aspects were highlighted recently in Krishna Mochi v. State of Bihar (2002) 6 SCC 81 . 24. On bare perusal of the above situation, it appears that such minor discrepancies may be possible when two or more eye-witnesses to the occurrence describe the same incident. It is an accepted principle of human conduct that normal discrepancies in evidence are those, which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition fact, etc. The angle of vision, the mental picture captured by the witness may differ from person to person, which may result in such minor discrepancies. Such normal discrepancies may always occur however, honest a witness maybe. It is the material discrepancy, which only can adversely affect the credibility or veracity of the evidence of the witness concerned. The angle of vision, the mental picture captured by the witness may differ from person to person, which may result in such minor discrepancies. Such normal discrepancies may always occur however, honest a witness maybe. It is the material discrepancy, which only can adversely affect the credibility or veracity of the evidence of the witness concerned. The discrepancies pointed out by the learned Counsel for the accused-appellant are normal, which are expected of a normal person and not material discrepancies as pointed out in Gangadhar Behera (supra). 25. It may not be out of place to refer to decision of the hon'ble the Supreme Court in Rana Pratap v. State of Haryana (1983) 3 SCC 327 , as regards the contention of Mrs. Buragohain, learned Counsel for the accused-appellant that the eye-witnesses being close relations of the deceased their evidence ought to have been rejected by the learned ad hoc Addl. Sessions Judge, wherein their Lordship observed as follows: Murders are not committed with previous notice to witnesses, soliciting their presence. If murder is committed in a dwelling house, the inmates of the house are natural witnesses. If murder is committed in a brothel, prostitutes and paramours are natural witnesses. If murder is committed on a street, only passersby will be witnesses. Their evidence cannot be brushed aside or viewed with suspicion on the ground that they are mere "chance witnesses". 26. Therefore, when the murder is committed in a dwelling house, in the morning hours of the day the inmates of the house, more particularly the women folks of the family are natural witnesses and their testimony cannot be discarded by branding them as partisan, biased, chance, etc., witnesses. 27. PW9, Sri Tupiram Bora, younger brother of the deceased, had been to tether cattle in the field at the time of occurrence. While tethering cow PW8 heard some hue and cry and sounds like 'I am being killed', 'I am killed', etc., on the side of their house. He ran towards his house and reached the place of occurrence immediately after the incident and saw the accused running towards the bamboo garden behind the house. On reaching the place of occurrence, he found his younger brother in the backyard with a cut injury on his neck. He ran towards his house and reached the place of occurrence immediately after the incident and saw the accused running towards the bamboo garden behind the house. On reaching the place of occurrence, he found his younger brother in the backyard with a cut injury on his neck. He immediately inquired about the occurrence from his wife, PW7, his sisters-in-law PW5 Nalini Bora, who narrated to him the offence committed by the accused. 28. PWs 9 and 10, who had arrived immediately at the place of occurrence, were informed by the eye-witnesses to the occurrence, PW 5 PWs 6 and 7 about the offence committed by the accused. 29. Dr. Pradip Medok, PW11, who carried out post mortem examination on the deceased, stated as follows to prove the death of the deceased due to the injuries sustained by the deceased: Rigor mortis present over both upper and lower limbs. One clean incised wound over right side of the lower part of the neck anteroposteriorly, measuring 6" x 3" x 3". Clotted blood was present. The great vessels and muscles and sixth cervical vertebra was cut, clotted blood present in the wound and the injury was ante mortem an homicidal in nature. In my opinion, the deceased died of shock and haemorrhage due to injury sustained. Ext. 5 is my post mortem report where Ext. 5(1) is my signature. Ext. 5(2) is the signature of then Joint Director familiar to me. The injury is sufficient in ordinary cause of nature to cause the death of a person. 30. The evidence of PW2, Tepu Saikia, is relevant in the context as he met the accused when he was going in a bicycle in a hurry on the day of occurrence around 9 a.m. carrying his wife towards a place called, Laluk. PW2 noticed blood stain on the wearing apparels of the accused. As soon as PW2 inquired about the incident, he was told by the accused that he had slashed the deceased. And by saying so he kept going towards the Police Station. On coming to know about it, PW2 straightway went to the house of the deceased and found Brijendra Phukan lying dead in the courtyard. 31. The incident, which took place in broad daylight has been fully supported by the prosecution witnesses. And by saying so he kept going towards the Police Station. On coming to know about it, PW2 straightway went to the house of the deceased and found Brijendra Phukan lying dead in the courtyard. 31. The incident, which took place in broad daylight has been fully supported by the prosecution witnesses. The evidence laid by the prosecution and the materials on record could establish the fact that the deceased died of fatal assault caused by the accused. In our opinion the appreciation of evidence by the trial court is reasonable, acceptable and apposite. The evidence given by P Ws 5, 6, 7 and PW8 is cogent, consistent and has impressed us as truthful. Their evidence has remained unshaken in the cross-examination and nothing has been pointed out which may in any manner discredit their testimony. The evidence of these eye-witnesses coupled with the seizure of dao and the medical evidence given by Dr. Pradip Medok, PW11, supported by other prosecution witnesses unmistakably connects the appellant with the crime, i.e., the assault on the deceased which resulted in his death. The question, which, however, remains to concentrate on now is the defence stand of the accused having sustained unexplained injuries at the time of occurrence coupled with the fact of the accused and his family members having been assaulted by the deceased and his family members. 32. Learned Counsel for the accused/appellant intensely submitted that the prosecution side completely failed to explain the injuries sustained by the accused and his family members at the time of occurrence which in turn rendered the prosecution version of the story unreliable to base conviction of the accused for commission of the offence alleged against him. Drawing our attention to statement of the accused under Section 313, Cr.PC together with the evidence of the prosecution witness PW5 contended that pre-existence of a boundary dispute between the appellant and the deceased is also admitted. 33. Learned Counsel for the appellant further contended that on the day of incident the accused, who was digging a boundary drain, was attacked and assaulted by the deceased together with his brother, Khageswar Bora, Tepu Saikia and his sister-in-law, Beuti Bora, etc. In support of the defence version, three witnesses were examined. Dr. Nikhil Kakati, DW1, who is a Doctor by profession, had examined the accused appellant, his wife Mrs. In support of the defence version, three witnesses were examined. Dr. Nikhil Kakati, DW1, who is a Doctor by profession, had examined the accused appellant, his wife Mrs. Bhani Bora, on the day of incident at the Laluk P.H.C. DW1, in his statement, clarified that he found a cut injury over the nasal area 1" x 1/4" x 1/4" on the person of the accused/appellant and further stated that the injury, which was fresh could have been caused by sharp cutting weapon. DW1 also examined wife of the accused on the same day and found a cut injury over the left side of the forehead of the size of 1" x 1/2", which was caused by sharp cutting weapon. Dr. Matilal Bezbarua, DW2, who was working as Medical and Health Officer at Laluk, P.H. examined Mrs. Dikon Bora, DW3 daughter of the accused on the day of occurrence. On examination of the injured, Mrs. Dikon Bora, DW3, following injuries were found: 1. Clean cut injury/wounded about 1" length and 1/4" depth with bleeding on the index finger of the left hand. 2. Swelling and pain on the left wrist joint. 3. Swelling and pain on the left shoulder joint. Type of weapon used to cut injury No. 1, sharp cutting weapon. Type of injury fresh and simple. Ext. B is my report wherein Ext. B(1) is my signature. 34. To support the defence version, Smt. Dikon Bora, DW3, in her deposition, stated that she had lodged an ejahar in the Police Station immediately after the occurrence. She stated that at around 8 a.m. on 31.1.2003 an altercation had started over the boundary drain of the enclosed courtyard, where Brojendra (deceased), Khageswar Bora and Tupiram Bora started altercating with her father, i.e., the accused. 35. DW3 admitted to have been working at home at the time of occurrence and upon hearing her father shouting by saying "I am dying", she along with her mother rushed towards the place of occurrence to find her father being beaten by the deceased, Khageswar and Tupiram with Dao and lathi. Having seen DW3 and her mother coming toward the place of occurrence Tupiram (PW9) assaulted her mother on her head with the dao. DW.3 also sustained minor cut injury in her left finger when she also offered resistance. 36. Having seen DW3 and her mother coming toward the place of occurrence Tupiram (PW9) assaulted her mother on her head with the dao. DW.3 also sustained minor cut injury in her left finger when she also offered resistance. 36. DW3 further stated that in the meantime her younger brother Sri Paban Bora came and took them away from the place of occurrence. Her father at that time told her that he was going to Laluk Police Out Post. DW3, in her cross-examination, admitted the death of the deceased on the same day as a result of quarrel with her father over the landed property. 37. From the evidence of DW3 it is apparent that she had gone to the place of occurrence only after hearing her father shouting for help and on reaching the place of occurrence she had seen her father being overpowered and beaten by the deceased and the witnesses. DW3 did not utter any thing about the kind of resistance offered by her father. DW3 further stated that Smt. Nalini Bora, PW5, Smt. Beuti Bora, PW7 were also present at the place of occurrence. On careful appreciation of the evidence on record it appears to us that DW3 reached the place of occurrence after the commission of offence by the accused. Obviously, after the commission of offence the accused must have been chased or resisted by the family members of the deceased who were admittedly present there at the place of occurrence, which in fact was witnessed by DW3, on reaching the place of occurrence. Therefore, on proper evaluation and appreciation of the evidence on record we are of the considered view that the evidence regarding DW3 witnessing the deceased assaulting her father is not believable in the facts and circumstances of the case. 38. As a matter of fact, though the accused sustained injury on his person on the day of occurrence in the same incident, there is no explanation, whatsoever, either by the I.O. or by any of the prosecution witnesses as to how the injury was sustained by the accused appellant. In this regard, a duty is cast upon the prosecution to explain all such injury sustained by the accused in the same incident. In this regard, a duty is cast upon the prosecution to explain all such injury sustained by the accused in the same incident. The injury sustained by the accused is a cut injury on the nasal portion of the body, which apparently must have been caused by some assault on him by sharp cutting weapon, as reflected by the Doctor, who examined the accused/appellant. 39. The prosecution as well as the defence do not deny occurrence. However, accusations and counter accusations created the confusion. Normally it is the duty of the prosecution to explain every injury sustained by the accused during the occurrence. However, in this context learned Public Prosecutor submitted that the prosecution need not explain all and every minor injury sustained by the accused. And in support of his contention relied on a decision reported in the case of Onkarnath Singh v. State of U.P. (1975) 3 SCC 276 , the hon'ble Supreme Court observed that: 35....This Court has repeatedly pointed out that the entire prosecution case cannot be thrown overboard simply because the prosecution witnesses do not explain the injuries on the person of the accused (see Bankey Lal v. State of U.P. and Bhagwan Tana Patil v. State of Maharashtra5). 36. Such non-explanation, however, is a factor which is to be taken into account in judging the veracity of the prosecution witnesses, and the court will scrutinise their evidence with care. Each case presents its own features. In some cases, the failure of the prosecution to account for the injuries of the accused may undermine its evidence to the core and falsify the substratum of its story, while in others it may have little or no adverse effect on the prosecution case. It may also, in a given case, strengthen the plea of private defence set up by the accused. But it cannot be laid down as an invariable proposition of law of universal application that as soon as it is found that the accused had received injuries in the same transaction in which the complainant party was assaulted, the plea of private defence would stand prima facie established and the burden would shift on to the prosecution to prove that those injuries were caused to the accused in self-defence by the complainant party. For instance where two parties come armed with a determination to measure their strength and to settle a dispute by force of arms and in the ensuing fight both sides receive injuries, no question of private defence arises. 40. In Jagdish v. State of Rajasthan (1979) 2 SCC 178 , at p. 178, the Apex Court enunciated the condition requisite before the obligation for explaining the injuries sustained by the accused is cast on the prosecution. Which reads as follows: Even the contusions are not of serious nature. It is true that where serious injuries are found on the person of the accused, as a principle of appreciation of evidence, it becomes obligatory on the prosecution to explain the injuries, so as to satisfy the court as to the circumstances under which the occurrence originated. But before this obligation is placed on the prosecution, two conditions must be satisfied: (1) that the injuries on the person of the accused must be very serious and severe and not superficial; (2) that it must be shown that these injuries must have been caused at the time of the occurrence in question. In the instant case, none of these conditions are satisfied. 41. In the instant case the evidence laid by the defence witnesses only proves that the accused had suffered a simple cut injury which can not be said to be very serious injury as indicated in Jagdish (supra). Interestingly the accused also in his statement under Section 313, Cr.PC generally alleged assault on him by the deceased and the witnesses but did not come forward to attribute the injury or specify as to who had assaulted him with a sharp weapon on his nasal area to cause the injury. Therefore, in the facts and circumstances of the case the question raised in the defence account of the story that the deceased and his family members were the aggressors in the occurrence is far from being true and there is no reality in the story of the deceased being the aggressors. The entire evidence on record neither established a logical likelihood of a right of private defence in favour of the accused nor generated any confusion in the prosecution case to disbelieve it. Further, the injury sustained by the accused is so simple that it does not probabilize the defence plea taken by the accused. 42. The entire evidence on record neither established a logical likelihood of a right of private defence in favour of the accused nor generated any confusion in the prosecution case to disbelieve it. Further, the injury sustained by the accused is so simple that it does not probabilize the defence plea taken by the accused. 42. Over and above, the account of having a boundary dispute between two neighbours is not in dispute. In this context, at the cost of repetition, we may turn to the evidence of PW5, the wife of deceased, who is an eye-witness to the occurrence. PW5 stated that before the occurrence her husband, after the prayer, was asked for by the accused to see whether the drain, which he was digging was going straight or not, in order to erect a fence in between their houses. On being requested by accused, the deceased also went near the place and asked the accused to show the same to others to verify whether it was straight or not. Since the deceased was in a hurry to go to office, he told the accused that he had no time to see all those things. While by saying so the deceased turned back then the accused brought a dao to assault the deceased. 43. From the above analysis, the evidence laid by the prosecution witnesses reveal that the accused repeatedly requested the deceased to at least see the boundary drain, which only reflects keenness on the part of the deceased to resolve the distressing boundary dispute between the two neighbours. The act of accused going to the doorstep the deceased to earnestly call him to show what he was doing was in order to rule out a dissention. Subsequent fetching of a dao as stated by the prosecution witnesses to assault the deceased reflect no prior preparation and intention to commit the crime. 44. The reaction of the deceased at the place of occurrence in presence of the accused by refusing to co-operate with him in the process of settlement had all the potential to infuriate a rustic villager, who was eagerly digging the drain in order to settle a boundary dispute between them. The mode and manner in which accused initially came to request the deceased to inspect the boundary drain, do not give the impression of being done with preconceived mind with a intention to kill the deceased. The mode and manner in which accused initially came to request the deceased to inspect the boundary drain, do not give the impression of being done with preconceived mind with a intention to kill the deceased. Whatever had happened appears to us to have happened at the spur of the moment. This further established that that the accused did not nurture a desire to kill the deceased. 45. In Chamru Budhwa v. State of M.P. AIR 1954 SC 652 hon'ble Supreme Court analyzing the act done with the knowledge that it was likely to cause death, but without any intention to cause death or to cause such bodily injury as is likely to cause death within the meaning of Part II of Section 304, of the Indian Penal Code has held that - The circumstances, however, as found by the courts below were that there was a severe exchange of abuses between the parties preceding the incident, that during the abuse the tempo rose and both the parties came out of their respective houses in anger and that in the course of the quarrel the appellant dealt the fatal blow on the head of the deceased with his lathi. Even though the circumstances were such as not to bring the case within Exception 1 to Section 300 of the Indian Penal Code it appears that the crime was committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the appellant's having taken undue advantage or acted in a cruel or unusual manner, thus, bringing the case within Exception 4 thereto with the result that the offence committed was culpable homicide not amounting to murder. The appellant, therefore, could not be convicted of having committed an offence under Section 302, of the Indian Penal Code. It now remains to consider whether the offence, which he committed, falls within the first part or the second part of Section 304 of the Indian Penal Code. When the fatal injury was inflicted by the appellant on the head of the deceased by only one blow given in the manner alleged by the prosecution it could as well be that the act by which death was caused was not done with the intention of causing death or of causing such bodily injury as is likely to cause death. The act appears to have been done with the knowledge that it was likely to cause death, but without any intention to cause death or to cause such bodily injury as is likely to cause death within the meaning of Part II of Section 304, of the Indian Penal Code. 46. The Division Bench of this High Court in Ripunjoy Borgohain v. State of Assam 1998 (4) GLT 502 succinctly explained the difference of culpable homicide and murder as follows: (14) Culpable homicide and murder both involve causing of death of human being by another human. Culpable homicide is genus whereas murder is a species. All murder is culpable homicide but not vice versa. Presence of special mens rea is the distinguishing mark. It consists of four intellectual dispositions mentioned in Section 300 of the IPC. (subject to the exceptions indicated). Punishment is to be inflicted proportionate to the gravity of the generic offence. Murder is first degree of culpable homicide cited in Section300. The second degree of culpable homicide is punishable under the first part of Section 304. The third degree of culpable homicide, in the reduced form is punishable under the second part of Section 304. After a trial when the court finds the causal connection between the act done by the accused and the death, the stage is set for considering to whether the act of the accused amounts culpable homicide within the meaning of Section 299, when the answer is in affirmative the next exercise is for the consideration of the operation of Section 300 of the IPC. This is the phase at which the court is to look into the facts to ascertain as to whether the prosecution has succeeded in bringing home the case within the sphere of any of tie four clauses mentioned in Section 300, IPC. Culpable homicide is not murder when the case falls within five exceptions of Section 300, IPC. Even, when this exceptions indicated above is not pleaded nor prima facie established on the evidence on record to prosecution must still required under the law to bring the case under any of the four clauses of Section 300, IPC to sustain the charge of murder. Even, when this exceptions indicated above is not pleaded nor prima facie established on the evidence on record to prosecution must still required under the law to bring the case under any of the four clauses of Section 300, IPC to sustain the charge of murder. Even the prosecution fails to discharge in establishing any one of the four clauses of Section 300, IPC the accused can not be convicted on the charge of murder and the case may be one of the culpable homicide not amounting to murder as contained in Section 299 of the IPC, in the case in hand the appellant intended to cause bodily injury on the deceased. Apparently the first part of Clause 3rdly under Section 300, IPC is established but considering the entire evidence on record and attending circumstances it can not be said that the prosecution succeeded in proving that the injury was intended to be inflicted was sufficient in the ordinary course of nature to cause death. As pointed out earlier there was only one blow inflicted on the deceased. No evidence on record did disclose any animosity. It can not be inferred that the appellant caused the death by doing an act with the intention of causing death, it can at best be inferred that the act was done with the knowledge that it was likely to cause death but without any intention to cause death or to cause such bodily injury as was likely to cause death. However, from the nature of the guilt and attending circumstances, we can not come to the finding that the accused in fact had the necessary intention to cause death, in that view of the matter we are of the view that the accused could not have been convicted under Section 302, IPC and it can only be convicted under Section 304, Part 11 and that the accused is sentenced to under go 7 (seven years imprisonment from life imprisonment. The appeal is partly allowed and the conviction and sentence is modified to the extent indicated above. 47. Unfortunately, as it appears to us, the fight, which turned fatal broke out, all on a sudden, due to emotional outburst of two peaceful neighbours. Obviously, there was extreme misunderstanding, which incidentally led to the unfortunate occurrence. The appeal is partly allowed and the conviction and sentence is modified to the extent indicated above. 47. Unfortunately, as it appears to us, the fight, which turned fatal broke out, all on a sudden, due to emotional outburst of two peaceful neighbours. Obviously, there was extreme misunderstanding, which incidentally led to the unfortunate occurrence. Even if the accused committed the offence of culpable homicide; even then he did not have intention to kill his neighbour. Evidence on record did not disclose any hatred and animosity towards the deceased. However, the accused had knowledge that if he assault the deceased with the weapon he was holding, there was likelihood of causing death of the deceased but without any intention to cause death or to cause such bodily injury as was likely to cause death. Over and above, the deceased received only one cut injury on his neck, which was on the lower part of the right side of the lower part of the neck anterior posteriorly measuring 6" x 3" x 3". However, from the nature of the culpability and attending circumstances, we cannot come to the finding that the accused in fact had the necessary intention to cause death of the deceased. 48. Thus, applying the rule laid down Chamru Budhwa (supra), we are of the opinion that the appellant, did not have prior intention and it must have happened in the heat of passion upon a sudden quarrel and, therefore, the accused is entitled to get benefit of the reasonable doubt that their act amounted to murder. The accused could not, therefore, be convicted under Section 304, Part 1, IPC and could be convicted only under Section Part II, IPC. 49. For the foregoing reasons, the appeal is partly allowed. The conviction of the appellant under Section 304, Part I is altered to one under Section 304, Part II of the IPC. Consequently, the sentence of imprisonment for life with fine awarded to the appellate court is set aside and the appellant is now sentenced to suffer R.I. for 7 (seven) years for the altered conviction. 50. Send back the LCR together with a copy of this judgment to the court of the learned Sessions Judge, North Lakhimpur, Lakhimpur immediately.