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2015 DIGILAW 302 (GAU)

GIRISH BORA v. STATE OF ASSAM

2015-03-12

B.K.SHARMA

body2015
ORDER (ORAL) 1. By means of this appeal, the appellant has assailed the judgment dated 05/12/2012 of the learned Sessions Judge, Lakhimpur passed in Sessions Case No. 96(NL)2009, by which while acquitting the other co-accused, namely, Shri Jiban Sharma and Shri Debeswar Saikia, he (Girish Bora) has been convicted under Section 304 Part-II IPC. Upon such conviction, he has been sentenced to undergo R.I. for 8 years and with fine of Rs. 5,000/- and in default to undergo R.I. for another one month. 2. The prosecution story in brief is that on 01/08/2007 at about 8.00 p.m. while prayer (Nam Prasanga) was going on in the Kachajuli Majgaon Namghar, the members of the particular group (Bamunia Group), namely the three accused persons along with Shri Atul Saikia and Shri Rupeswar Bora, armed with lathi etc. attacked the members of another group (Sankar Sangha) and caused injuries on the deceased ; Tilo Bora, Bipul Bora, Nirmal Bora, Smt. Dipali Bora and Smt. Niku Bora. 3. On the basis of the aforesaid FIR lodged on 02/08/2007 (Ext. 3), Laluk P.S. Case No. 89/2007 was registered under Section 147/448/325 IPC. Injured Bora succumbed to the injuries on 03/08/2007 and accordingly section 302 IPC was added by the learned C.J.M., Lakhimpur on the basis of the prayer made by the I.O. On completion of the investigation, the three accused persons, named above, were sent for trial submitting charge sheet under Section 147/448/302 IPC. The learned trial Court framed charge against the accused persons under Section 147/302 IPC and on being read over and explained to the accused persons, they pleaded not guilty and claimed to be tried. Accordingly, trial commenced. 4. During trial, the prosecution examined 10(ten) witnesses. The accused persons were also examined under Section 313 Cr.P.C. The learned trial Court formulating the following points having passed the impugned judgment of conviction and sentence against the accused appellant, he has preferred this appeal :- “Firstly, whether accused, Sri Jiban Sharma, Sri Girish Bora and Sri Debeswar Bora on 01.08.2007 at about 8 pm at Kachajuli Majgaon by forming an unlawful assembly with others armed with ‘daa’, ‘lathi’ etc. committed the offence of rioting to beat and injure the members of ‘Sankar Sangha’ who were observing ‘Naam-Prasanga’ in ‘Namghat’ at that time ? committed the offence of rioting to beat and injure the members of ‘Sankar Sangha’ who were observing ‘Naam-Prasanga’ in ‘Namghat’ at that time ? Secondly, whether accused, Sri Jiban Sarma, Sri Girish Bora and Sri Debeswar Bora on the same day, time and place committed murder by intentionally or knowingly caused death of Priya Bora?” 5. Referring to the evidence on record, Mr. T.J. Mahanta, learned senior counsel assisted by Mr. B. Bora representing the accused appellant submits that when there is inherent contradictions in the evidence adduced by the prosecution, the learned trial Court could not have convicted the accused appellant merely on the basis of suspicion and presumption. On the other hand, Mr. N.J. Dutta, learned Additional PP, Assam, submits that when there was oral dying declaration made by the deceased before the PW-1 and PW-3, the learned trial Court has rightly convicted the accused appellant. 6. PW-1 is the younger brother of the deceased who in his deposition, narrating the incident that occurred on 01/08/2007, stated as to how the accused appellant along with the others, had arrived at the Namghar to have some discussion with the members of the other group. However, they had departed with the information that the matter would be discussed on the next day. He further deposed that while the persons were departing from the prayer house (Namghar) after the prayer was over, he heard shouting of the deceased in front of his house. Though he did not go out immediately from his house but after few minutes, he went there and found the deceased lying injured and on query, he told him that he was assaulted by the accused appellant. According to him, there after Shri Debeswar Bora arrived at the place of occurrence and both of them lifted the injured to his house. Just at that point of time, there was also hue and cry in the house of Girish, accused appellant. He further deposed that the injured was taken to hospital but after 2 (two) days he succumbed to the injuries. 7. PW-2 is the wife of the deceased who in her deposition stated that her husband was attacked by the accused appellant with a lathi on his head and getting the blow, her husband fell down on the ground. Then the other accused Jiban Sharma got up on his chest and pressed him. 7. PW-2 is the wife of the deceased who in her deposition stated that her husband was attacked by the accused appellant with a lathi on his head and getting the blow, her husband fell down on the ground. Then the other accused Jiban Sharma got up on his chest and pressed him. The third accused Shri Debeswar Saikia was standing by the side. Thus, if we go by the testimony of this witness, she had seen the occurrence with her own eyes. However, when she was cross examined, she categorically stated she did not state before the Police that she had seen the accused. If her said testimony is tested in reference to the testimony of PW-10, it is found that she did not state before the Police that she had not seen the appellant assaulting her husband with lathi. She also did not see other two accused persons. She also did not state before the Police that the accused persons had assaulted her husband. However, in the FIR lodged by PW-8, there was no mention of anything of this sort, rather it disclosed quarrel between the two groups which resulted in marpit. It will be pertinent to mention here that although the incident occurred on 01/08/2007, the FIR dated 02/08/2007 was lodged only on 03/08/2007 and if that be so, there was enough time for the informant to know about the real state of affairs For the aforesaid reasons, the learned trial Court disbelieved the testimony of PW-2. 8. PW-3 in his deposition stated that on the day of occurrence, when he heard noise, coming out from the prayer house (Namghar), he went there and found Priya Bora i.e. the deceased lying in the road in front of his house. On being asked, one Manik Bora, who was present, reportedly told him that the members of the particular group assaulted the deceased. Thereafter, they lifted him to his house. This witness also stated about the purported furnishing of information by the injured that he was assaulted by the accused appellant along with the other two accused persons. Thus, there is contradiction in the evidence of PW-1 and PW-3, inasmuch as, while the PW-1 categorically stated that the injured Priya Bora who subsequently died, named only the accused appellant in presence of PW-3 but as per the evidence of PW-3, he named all the three accused persons. Thus, there is contradiction in the evidence of PW-1 and PW-3, inasmuch as, while the PW-1 categorically stated that the injured Priya Bora who subsequently died, named only the accused appellant in presence of PW-3 but as per the evidence of PW-3, he named all the three accused persons. Further, in his statement made before the I.O. he did not state that Smt. Niku Bora , Smt. Dipali Bora and Sri Loukon Bora had arrived at the house of the injured. He also did not tell that Smt. Niku Bora and Smt. Dipali Bora were at the place of occurrence. 9. PW-4 in her evidence stated that hearing cries she ran towards the Namghar and found Priya Bora lying on the road in front of his house. She also found Manik Bora, Dimbeswar Saikia and Smt.Dipali Bora standing by the side. Later on, Manik Bora and Dimbeswar Saikia lifted the injured to his house. Apprehending that her husband had also been assaulted, she entered in the house of the accused appellant and at that point of time, somebody pelted stone that fell on her head. After entering into the house of the accused appellant, she noticed Tilo Bora Son of Priya Bora was assaulted and tied down by a rope. Thus, she did not make any accusation against the accused appellant directly but stated that later on she came to know that he accused persons had assaulted the injured Priya Bora. In her cross examination, she admitted that she found many people attacking the house of the accused appellant by dao and lathi. She also stated that because of the said incident, the accused appellant had lodged an FIR, on the basis of which few persons were arrested. 10. PW-5 in his deposition stated that in the incident he was struck by Shri Dimbeswar Bora, brother of the accused appellant, as a result of which he sustained injury on his face. He did not name the accused appellant. In his cross examination he admitted that the accused appellant had instituted a case alleging commission of trespass into his house and causing assault to him, Dimbeswar Bora and some other persons. It was also alleged that his house was damaged. 11. PW-6 also stated about coming to the place of occurrence and found the deceased in injured condition. In his cross examination he admitted that the accused appellant had instituted a case alleging commission of trespass into his house and causing assault to him, Dimbeswar Bora and some other persons. It was also alleged that his house was damaged. 11. PW-6 also stated about coming to the place of occurrence and found the deceased in injured condition. PW-7 is the Doctor, who in his deposition stated that he had performed the post mortem examination on the dead body of the deceased and found the following :- “A male dead body of average built about 65 years of age, Rigor mortis was present on lower limbs. No other external injury except a muscle deep cut about 1/2 “ in left elbow. There is extensive sub scapular bleeding in mid scapular region extending towards occipital and parietal region more towards right parietal region. There is also haematoma and bruise in right parietal and right temporal region. There is fracture of right parietal bone (linear) extending from right temporal bone covering the whole parietal bone upto the occipital bone posteriorly right side of skull. Membrane – There is extensive sub dural haemorrhage which covered whole frontal region both sides, right parietal region and temporal region. Brain and spinal cord- There is also bleeding over the brain tissue in the right frontal and parietal region and part of left frontal and temporal region. Other organs were found healthy. The injuries described above are ante mortem in nature. OPINION : The death is due to shock and haemorrhage as a result of the head injury described above. The injuries were sufficient to cause death of a person in the ordinary course of nature. Ex. 2 is the Post Mortem Report and 2(1) is my signature.” 12. According to the opinion recorded in the report, the death was due to shock and haemorrhage, as a result of the head injury described above. He further stated that the injuries were sufficient to cause death of a person in ordinary course of nature. He proved the report (Ext. 2). In the cross examination, he stated thus :- “Linear fracture was started at right parietal region through out the whole parietal bone extended upto occipital bone. This sort of injuries can not be occurred if some one is assaulted from the front side. There was extensive bleeding from the site of injury. Sub scapular bleeding was there. 2). In the cross examination, he stated thus :- “Linear fracture was started at right parietal region through out the whole parietal bone extended upto occipital bone. This sort of injuries can not be occurred if some one is assaulted from the front side. There was extensive bleeding from the site of injury. Sub scapular bleeding was there. If someone sustained this sort of injury he will immediately become unconscious and fell down. There is likelihood of confuse state of the injured.” 13. Referring to the aforesaid evidence on the part of the PW-7, Mr. Mahanta, learned counsel for the appellant submits that in view of the above opinion of the doctor, it will be totally unsafe to place reliance on the evidence of PW-1 and PW-3 who reportedly heard the injured naming the accused appellant, more particularly, when there is inherent contradiction in the evidence of PW-1 and PW-3 discussed above. 14. PW-8 is the informant and cousin of the deceased. He in his deposition while narrating the incident stated that he did not see the incident personally. PW-9 is another doctor who had examined the injured persons. PW-10 is the I.O. who in his deposition generally stated about the investigation that was carried out. In his cross examination, the defence extracted the contradictions in reference to their statements made under Section 161 Cr.P.C. 15. The learned trial Court while holding that the evidence adduced by the wife of the deceased i.e. the PW-2 is not believable in view of inherent contradictions when tested in reference to the FIR and also the evidence adduced by PW-10, however, heavily placed reliance on the evidence of PW-1 and PW-3 to hold that the prosecution could establish the offence alleged against the accused appellant on the basis of the oral dying declaration purportedly made by the deceased before the said two witnesses. As to what are the contradictions in their testimonies have been noted above. 16. While the PW-1 stated that such oral dying declaration was made by the deceased before him in presence of PW-3 but PW-3 in his deposition stated that such oral dying declaration was made in presence of three persons. That apart as per the medical evidence adduced by PW-7, the deceased was not any a position to remain conscious and there was also likelihood of confused state of the injured. 17. That apart as per the medical evidence adduced by PW-7, the deceased was not any a position to remain conscious and there was also likelihood of confused state of the injured. 17. In AIR 1994 SC 1641 (State of Gujarat Vs. Khumansingh Karsan Singh and others), the Apex Court held that in absence of corroborative evidence, it is not enough to rely mainly on inconsistent dying declaration. As to what are the inconsistencies in the purported oral dying declarations have been noted above. Thus, in my considered opinion, it will be totally unsafe to convict the accused appellant solely on the basis of the purported oral dying declaration before the PW-1 and PW-3 and that too in absence of any corroborative evidence. 18. Above apart, when there is evidence on record that there was clash between two groups, as a result of which cross cases came to be filed. It is in the evidence of the prosecution that the accused appellant also lodged an FIR relating to the same incident. It is in this connection, Mr. Mahanta, learned counsel for the appellant placing reliance on the decision of the Apex Court reported in (2001) 2 SCC 688 (Sudhir and others Vs. State of M.P) and (2003) 9 SCC 437 (G. Krishnamoorthy and others Vs. S.N. D.P. Yogam and others) has submitted that it was the duty of the Court to try the cross cases together. This aspect of the matter need not detain us in view of the above finding. 19. Appeal is allowed interfering with the impugned judgment of conviction dated 05/12/2012 passed in Sessions Case No. 96 (NL) 2009. The accused appellant shall be set at liberty forthwith, if not wanted in connection with any other case. 20. The Registry shall send down the LCR to the learned court below along with a copy of the judgment and order.