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2012 DIGILAW 1055 (GAU)

Bhuban Baruah v. State of Assam

2012-09-06

I.A.ANSARI, INDIRA SHAH

body2012
JUDGMENT Iqbal Ahmed Ansari, J. 1. This appeal is directed against the judgment and order, dated 27.12.2005, passed, in Sessions Case No. 60 (J-J) of 2005, by the learned Additional Sessions Judge, Jorhat, convicting the accused-appellant under Section 302 IPC and sentencing him to suffer imprisonment for life and pay fine of Rs. 1,000/- and, in default of payment of fine, undergo rigorous imprisonment for three months. The case of the prosecution, as emerged at the trial, may, in brief, be described as under: Dhiren Bora (since deceased) was the brother of Purna Kanta Bora (PW1). They had agricultural land at a distance of about 6/7 kilometers from their house, the land being located at Ouguri Barbeel village. Dhiren Bora (since deceased) used to live, in a house, at Barbeel village and used to look after the cultivation of the family at the said land. On 15.01.2004, PW1 went to Barbeel village to provide some articles of food on the occasion of Bihu (a social function), at Dhiren Bora's house and left before the evening had set in. Before PW1 parted company with his brother, Dhiren Bora, Dhiren Bora told PW1 that he (Dhiren Bora) stood invited for dinner, at the house of accused Bhuban Baruah, at about 8.00 pm. On that very day, i.e., on 15.01.2004, Naren Bora (PW3) came to PW1 and informed him that accused Bhaben Bora had assaulted Dhiren Bora and left him injured in the courtyard of Bhaben and, thereafter, taking along his co-villagers, Hiteswar and Gunia Bora (PW8), PW1 came to the house of the accused and found his brother, Dhiren Bora, lying in injured condition in the courtyard of the accused. Dhiren Bora was unable to speak. PW1, with the help of his co-villagers, took Dhiren Bora, on a hand cart, to CW1 (Dr. Ajit Bora), who stitched the wounds of the said injured, and when the said injured was being carried, in a van, to the civil hospital, Jorhat, he died inasmuch as the doctor, on examining the injured, Dhiren Bora, at the said hospital, declared him dead. Ajit Bora), who stitched the wounds of the said injured, and when the said injured was being carried, in a van, to the civil hospital, Jorhat, he died inasmuch as the doctor, on examining the injured, Dhiren Bora, at the said hospital, declared him dead. On the following day, i.e., on 16.01.2004, PW1 lodged an Ejahar, at Bhagamukh Police Station, alleging to the effect, inter alia, that the accused had called the informant's brother, Dhiren Bora, on 15.01.2004, to his house, where he struck Dhiren Bora on his head and chest with a multi-pronged hoe seriously injuring him and though his brother was rushed to the hospital, he died. Treating the said Ejahar, as First Information Report, Bhagamukh Police Station Case No. 1 of 2004 was registered, under Section 302 IPC, against the accused-appellants. 2. At the trial, when a charge, under Sections 302 IPC, was framed, the accused pleaded not guilty thereto. 3. In support of their case, prosecution examined altogether nine witnesses. The Court also examined Dr. Ajit Bora as a Court Witness. The accused was, then, examined under Section 313 Cr.P.C. and, in his examination aforementioned, the accused denied that he had committed the offence, alleged to have been committed by him, the case of the defence being that of denial. No evidence was adduced by the defence. 4. Having, however, found the accused guilty of the offence, which he stood charged with, the learned trial Court convicted him accordingly and passed sentence against him as mentioned above. Aggrieved by his conviction and the sentences passed against him, the convicted person has preferred this appeal. 5. We have heard Dr. G Lal, learned Amicus Curiae, and Mr. KA Mazumdar, learned Additional Public Prosecutor, Assam. 6. Let us start the discussion of the merit of this appeal from the beginning, i.e., from the evidence of the informant (PW1), brother of the deceased Dhiren Bora. This witness's evidence is to the effect that deceased Dhiren Bora used to live in Barbeel village. G Lal, learned Amicus Curiae, and Mr. KA Mazumdar, learned Additional Public Prosecutor, Assam. 6. Let us start the discussion of the merit of this appeal from the beginning, i.e., from the evidence of the informant (PW1), brother of the deceased Dhiren Bora. This witness's evidence is to the effect that deceased Dhiren Bora used to live in Barbeel village. On the occasion of Bihu, PW1 went to Dhiren Bora's house to give him some food items and left before the evening had set in and came back to his house, but before he (PW-1) left, Dhiren told him (PW-1) that he (Dhiren) stood invited to the house of the accused for dinner and, on that very day, at about 8 pm, PW3 came to the house of PW1 and informed him that accused Bhuban Baruah had assaulted Dhiren Bora and had left him injured in his courtyard. It is in the evidence of PW1 that taking along his co-villagers, Hiteswar and Gunia (PW8), he (PW-1) went to the house of the accused and, on arriving there, found Dhiren lying injured in the courtyard of the house of the accused and, at that time, injured Dhiren Bora was unable to speak, whereupon the injured was carried, in a hand cart, to a doctor, who stitched his wounds and at around mid-night, they carried him, in a van, to civil hospital, Jorhat, where the doctor declared him dead and he (PW-1), thereafter, lodged with police an Ejahar, which is Ext. 8. 7. Close on the heels of the evidence of PW1, PW3 has deposed that the house of the accused is at a distance of about 150 meters from his own house and that he knew Dhiren Bora too. 8. As regards the occurrence, PW3 has deposed that on the day of Magh Bihu, at about 6.00/6.30 pm, when he was walking past the house of the accused, on way to his own house, he heard someone groaning in the courtyard of the house of the accused, whereupon he called the accused by his name, the accused came out of his house with a lamp and he (PW3) went to the courtyard of the accused and, with the help of the lamp, saw Dhiren Bora lying injured at the courtyard and at that time, Dhiren Bora was unable to speak. PW3 has deposed that the accused told him that he (the accused) had a quarrel with Dhiren Bora, whereupon he (PW3) informed Dhiren Bora's elder brother, Purna Kanta Bora (PW1). PW3 has also deposed that later on, Dhiren Bora was taken, in a handcart, to Dr. Ajit Bora of Bonai and, then, members of Dhiren Bora's family took injured Dhiren Bora to civil hospital, Jorhat. 9. Though PW1 and PW3 were both cross-examined by the defence, nothing was elicited from their cross-examination to show that any material aspect of their evidence is untrue or false. This apart, we do not notice anything inherently improbable or untrue in the evidence of PW1 and PW3. We see, therefore, no reason to disbelieve their evidence. 10. Before proceeding further, what may, however, be pointed out is that though PW1 has claimed that his brother, Dhiren Bora, had told him that he (Dhiren Bora) stood invited for dinner at the house of the accused, this piece of evidence, not being a part of dying declaration of the said deceased, is nevertheless admissible in evidence inasmuch as it proves, having remained unshaken, that the said deceased had, indeed, told his brother that he stood invited for dinner in his house. To this extent, the evidence of PW1 that his brother had told him that he stood invited for dinner, at the house of the accused, is not hearsay. However, this does not mean that the said deceased was, as a matter of fact, stood invited for dinner at the house of the accused inasmuch as Dhiren Bora, being dead, has not been examined as witness and the statement, attributed to him, not being a part of dying declaration, remains unproved and, therefore, hearsay. 11. We may, at this stage, pause here to point out that while dealing with a piece of evidence, which is regarded as hearsay, the Courts must bear in mind that there is a difference between factum of an information and truthfulness/veracity of such an information. If, in a given case, the object is to merely establish that a statement was made by one person to another, it may not be hearsay; but if the object is to prove that what was started was true, then, it may become hearsay. If, in a given case, the object is to merely establish that a statement was made by one person to another, it may not be hearsay; but if the object is to prove that what was started was true, then, it may become hearsay. Thus, when 'x', an eye witness of an occurrence of murder, comes to a police station and reports the occurrence to a police officer, the evidence given by the police officer, at the trial, in the absence of the evidence given by the informant, that he was given such an information is not hearsay if the object is merely to prove that such an information was, indeed, received by the police officer; but if the object is to prove that what the police officer was reported was true, then, the police officer's evidence as to what he was reported by 'x' would be hearsay unless 'x' appears as a witness at the trial and deposes not only that he had so reported the occurrence to the police officer, but also that what he had reported was true as he had witnessed the occurrence himself. (See Bisheswar Baori @ Khetrapal Vs. State of Assam, reported in 2002 (2) GLT 395). 12. In Subramaniam Vs. Public Prosecutor, reported in (1956) 1 WLR 965, the Privy Council, distinguishing the factum of statement from the factum of truth, observed and held that the state of mind of a man, charged with possessing ammunition contrary to certain regulations, could be proved by what had been told to him by certain terrorist into whose hands he had come. Referring to the observations, so made by the Privy Council in Subramaniam (supra), Lord Parker, Chief Justice, in Regina Vs. Wills (1960) 1 WLR 55, observed: Mr. de Silva, giving the advice of the Board, said: In ruling out peremptorily the evidence of conversation between the terrorists and the appellant, the trial Judge was in error. Evidence of a statement made to a witness by a person, who is not himself called as a witness, may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible, when it is proposed to establish, by the evidence, not the truth of the statement, but the fact that it was made. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible, when it is proposed to establish, by the evidence, not the truth of the statement, but the fact that it was made. The fact that the statement was made, quite apart from its truth, is frequently relevant in considering the mental state and conduct thereafter of the witness or of some other person in whose presence the statement was made. (Emphasis is added) In the opinion of this Court, that statement of the law is applicable to the present case. It is true that the Board were there considering the state of mind and conduct of the defendant at the time of the commission of the offence, but provided the evidence as to his state of mind and conduct is relevant, it matters not whether it was in regard to the conduct at the time of the commission of the offence or, as here, at a subsequent time, to explain his answers to the police and his conduct, when charged. Accordingly, that evidence, in the present case, was wrongly excluded. 13. Thus, the evidence of PW1 has to be divided into two parts, namely, factum of information and truthfulness or veracity of the information. The prosecution has clearly proved the factum of information inasmuch as the evidence of PW1 that the said deceased had told him that he (the deceased) stood invited, for dinner, at the house of the accused-appellant, stands proved. Whether the information, so given by the said deceased to the PW1, was or was not true, remains undetermined and, therefore, hearsay inasmuch as the said deceased is no longer alive to prove the correctness of the information, which he had given to PW1. 14. Nonetheless, what is of paramount importance to note is that the evidence of PW3 shows that he, on hearing someone groaning in the courtyard of the house of the accused, when called the accused by his name, the accused came out with a lamp and, with the help of the lamp, PW-3, saw Dhiren Bora lying injured, in the courtyard of the house of the accused, unable to speak and the accused told PW-3 that he had a quarrel with Dhiren Bora. In the absence of any evidence showing that anybody else had come to the house of the accused and had injured Dhiren Bora, the evidence, given by PW3, clearly proves that it is the accused, who had, following the quarrel, injured Dhiren Bora. 15. Coupled with the above and as already indicated above, PW1, on being informed, as pointed out above, did come, accompanied by his co-villagers, to the house of the accused and found Dhiren Bora lying injured in the courtyard of the accused. 16. We, now, turn to the evidence of PW4, who is wife of the accused. According to her evidence, at about 6.00 pm, Dhiren Bora came to their house and, on arriving there, he threatened and chased away PW4's children and, then, grabbed her, took her to bed and attempted to have forcibly sexual intercourse with her, but she, somehow, managed to free herself and, a little later, she saw Dhiren Bora lying injured in her courtyard. In her evidence, PW4 has expressed her ignorance by deposing that she did not know as to how Dhiren Bora got injured. She has also claimed that at that time, the accused was not at home inasmuch as he was in a village 'naamghar' (i.e., a place for prayer) and that her husband (i.e. the accused-appellant) arrived home only after she (PW4) had already found Dhiren Bora lying injured. 17. In her cross-examination, PW4 has admitted that she told the police that having seen Dhiren Bora holding her, the accused pulled him away. Thus, the previous statement, made to the police by PW4, during the course of investigation, shows that her evidence is admixture of half-truth and untruth and she cannot, therefore, be relied upon. As against the discredited evidence of PW4, unimpeached evidence of P W3 inspires confidence, which proves, as already indicated above, that it was none, but the accused-appellant, who had injured Dhiren Bora. 18. As against the discredited evidence of PW4, unimpeached evidence of P W3 inspires confidence, which proves, as already indicated above, that it was none, but the accused-appellant, who had injured Dhiren Bora. 18. We may pause here to point out that though PW8 (Gunin Bora), a co-villagers of PW1, has deposed that on being informed by PW1 that following an assault by accused Bhuban Baruah with a hoe, Dhiren Bora had sustained injuries and was lying at the gateway of Bhuban Baruah's house and he (PW-8) accordingly went to the house of the accused and found Dhiren Bora being taken, in a handcart, to Bonai and, on being asked, Dhiren Bora told him (PW8) that the accused had assaulted him (Dhiren Bora), yet to the police, during investigation, no such statement had been made by PW8. The evidence, therefore, given, for the first time, in the Court, at the trial, by PW8 that the injured had said that the accused had assaulted him cannot be believed in the absence of any explanation offered therefor and in the absence of any explanation discernible, in this regard, from the evidence on record. 19. The above discussion of the evidence on record brings us to the evidence of CW1 (Dr. Ajit Bora), whose evidence is to the effect that on the night of 15.01.2004, he stitched the injuries of Dhiren Bora. 20. So far as PW2 (Dr. K.K. Sarma) is concerned, he was, admittedly, the one, who had performed the post mortem examination on the dead body of Dhiren Bora, on 17.01.2004, and found as follows: 1. Lacerated injury was found in the occipital area of scalp. Stitches seen in that area. 2. Sings of injury on two sides with stitches were found on the left side of the chest. On dissection: Left cavity of the left side lung was found full of blood. Rigormortis present. The injuries were ante mortem in nature. 21. In the opinion of the doctor (PW2), the cause of death was due to coma as a result of the head injuries sustained by the deceased and that the injuries, found on the head of the deceased, were sufficient to cause death in the ordinary course of nature. The findings of the doctor (PW1) and his opinion with regard to the nature of the injuries and cause of death have remained unchallenged by the defence. The findings of the doctor (PW1) and his opinion with regard to the nature of the injuries and cause of death have remained unchallenged by the defence. We also notice nothing inherently unbelievable in the evidence given by PW2 and his evidence, thus, clearly shows that the said deceased had sustained injuries on the occipital region of his scalp, which put him to coma resulting into his death. 22. Though a multipronged hoe has been seized by the police from the house of the accused, we attribute no importance to this seizure inasmuch as there is nothing in the evidence on record to show that it was the seized material, which had been used for causing the injuries on the said deceased. 23. Notwithstanding the fact that the weapon of offence has not been proved as satisfactorily as ought to have been done by the prosecution, the fact remains that when evidence, given by PW3, is considered, in the light of the other evidence, which we have discussed above, we find that it is none, but the accused, who had caused the injuries on Dhiren Bora, which became the cause of his death. 24. The question, now, is as to what offence, if any, was committed by the accused-appellant? 25. While answering the question posed above, it needs to be noted that a combined reading of the evidence of PW3 and PW4 shows that Dhiren Bora did come to the house of the accused and, in the absence of any denial by the prosecution, this Court cannot ignore the fact that the deceased, according to the unscathed evidence of PW4, grabbed her (i.e., the wife of the accused), took her to bed and attempted to have sexual intercourse with her, but she claims to have managed to get herself freed. When evidence, so given by PW4, is juxtaposed against the evidence of PW3, what transpires is that the accused had a quarrel with Dhiren Bora and, in the absence of any evidence showing to the contrary, there can be no escape from the conclusion that the quarrel between the accused and the deceased had taken place, because of the fact that the deceased, as claimed by PW4, made an attempt to have sexual intercourse with her against her will. 26. 26. In the backdrop of the circumstantial evidence, which we have pointed out above, it is reasonable to infer that the accused-appellant, in the facts and attending circumstances of the present case, was deprived of his power of self-control by grave and sudden provocation, which he had received at the hands of the said deceased, and it were in such circumstances that the accused-appellant had assaulted the said deceased on his head with a weapon, which became the cause of death of the deceased. In these circumstances, the accused ought not to have been held guilty of murder, but was proved, beyond reasonable doubt, to have committed the offence of culpable homicide not amounting to murder. It is also imperative to note that there was only one injury on vital part of the head of the deceased and had the accused intended to cause death of the deceased, nothing stopped the accused from inflicting further injuries on the said deceased. 27. Situated thus, we are of the considered view that the offence, which the accused-appellant had committed, fell within the ambit of Section 304 Part-II IPC. 28. In the result and for the reasons discussed above, this appeal partly succeeds. While the conviction of the accused-appellant and the sentence, passed against him by the judgment and order under appeal, stand hereby set aside, the accused appellant is hereby held guilty of offence under Section 304 (Part-II) IPC. 29. For the offence, so committed by the accused-appellant, under Section 304(2) IPC, we are of the view that in the facts and attending circumstances of the present case, the sentence of rigorous imprisonment, for a period of six years, was reasonable and adequate punishment for the accused-appellant. We accordingly sentence the accused-appellant to undergo rigorous imprisonment for a period of six years and make it clear that if the accused-appellant has already undergone the sentence, which we have hereby passed, he shall be set at liberty forthwith unless he is required to be detained in connection with any other case. 30. Let the Amicus Curiae be paid a sum of Rs. 5,000/- for his valuable assistance rendered to this Court. Send back the LCR with a copy of this judgment and order.