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2016 DIGILAW 739 (GAU)

Naresh Borah v. State of Assam

2016-08-08

AJIT SINGH, N.CHAUDHURY

body2016
JUDGMENT AND ORDER (N.Chaudhury, J) The Judgment and order of conviction passed on 29.4.2013 by the learned Sessions Judge, Sivasagar in Sessions Case No.202 (S-S) of 2011 has been called in question in this appeal under Section 374 of the Code of Criminal Procedure. 2. The prosecution case in brief is that at about 1-10 pm on 30.7.2011, one Arun Chandra Kalita lodged an ejahar with the Namti Police Station stating that at about 12.30 pm on the same day, his elder brother Upen Borah, a resident of Rajabari was hacked to death by his second son Naresh Borah in front of the backdoor of the house and he died instantaneously. Namti P.S. Case No. 21 of 2011 under Section 302 IPC was registered thereupon and in course of investigation, the I.O. visited the place of occurrence, prepared the rough sketch map and recorded the statement of the complainant and the witnesses and then prepared the inquest report of the dead body in presence of the witnesses. The dead body was thereafter taken to Sivasagar Civil Hospital for post mortem examination. The incriminating weapon which is a dao was seized in presence of witnesses and having arrested the accused, he was sent up for trial. The I.O. subsequently submitted the post mortem report and as sufficient materials came out under Section 302 IPC, the learned Judicial Magistrate 1st Class committed the case to Sessions on 19.11.2011. The learned Sessions Judge framed the charge under Section 302 IPC against the sole accused and read out the charge to the accused. The accused pleaded not guilty and claimed to be tried. In course of trial, prosecution examined as many as 14 witnesses. Out of whom, PWs- 6 and 12 are the eye witnesses. PW-1 is the doctor who held post mortem examination over the dead body and PW-14 is the Investigating Officer. 3. PW-1, Dr. Diganta Kumar Das proved the post mortem report as Exhibit-1, wherein, Exhibit-1(1) and Exhibit-1(2) are his signatures. According to him, there are two injuries on the dead body and the same are as follows: (i) One incised wound about 5” x 2” in size present in face and neck extending from angle of mouth left side to the neck upto the coracoids cartilage and cutting the skin muscle and great vessels on face and neck. According to him, there are two injuries on the dead body and the same are as follows: (i) One incised wound about 5” x 2” in size present in face and neck extending from angle of mouth left side to the neck upto the coracoids cartilage and cutting the skin muscle and great vessels on face and neck. (ii) One incised wound about 4” x 1” in size present in left side of the hip joint extending upto buttock and cutting the skin muscles and great femoral vessels. He opined that death was due to shock and hemorrhage as a result of the aforesaid two injuries which are ante-mortem and could be the cause of sharp cutting weapon like dao. This witness was not cross examined by the defense. 3. PW-2, Rama Nanda Bora stated on oath that the accused is his nephew and deceased was his elder brother. He was informed by one Arun Kalita over phone that his brother has been cut to death by his own son. He immediately came to the place of occurrence and on enquiry from the widow of the deceased came to know that accused Naresh Borah had committed the offence and then fled into the jungle. When he was at the spot, police arrived and held inquest over the dead body. Exhibit-2 is the inquest report. Exhibit-2(1) is the signature. Police seized the incriminating dao and it was proved as material Exhibit.-1. In cross examination, a suggestion came that accused had psychological problem which he denied. 4. PW-3, Bisha Neog is the VDP Secretary. He visited the place of occurrence after it was committed and then he was told by the widow of the deceased that the accused had entered into nearby jungle taking the dao in his hand. In the meantime, police came to hold the inquest over the dead body. Exhibit-2 is the inquest report and 2(2) is his signature. Police seized dao from the hand of the accused and material Exhibit -1 is that dao. In cross examination, he added further material Exhibit-1 dao was stained with blood at the time of seizure. PW-4, Arun Chandra Kalita deposed that accused Naresh Borah is his nephew and deceased Upen Borah is his elder brother. Benu Dehengia informed him about the incident and then he came to the house of the deceased and found the dead body. In cross examination, he added further material Exhibit-1 dao was stained with blood at the time of seizure. PW-4, Arun Chandra Kalita deposed that accused Naresh Borah is his nephew and deceased Upen Borah is his elder brother. Benu Dehengia informed him about the incident and then he came to the house of the deceased and found the dead body. Suwala Borah, the wife of the deceased told him that accused Naresh Borah had cut the deceased and he was hiding in the jungle. Public apprehended him and then handed over to police. Then PW-4 submitted ejahar. Exhibit-3 is the ejahar. And 3(1) is his signature. In course of cross examination, he added that public apprehended the accused from the jungle along with a dao and handed the accused over to police. 4. PW-5, Thaneswar Chetia stated that having heard about the murder of Upen Borah, he came to the place of occurrence and witnessed the dead body. Public apprehended accused Naresh Borah from the jungle and handed the accused over to the police along with the dao. Police held inquest over the dead body in his presence. Exhibit-2 is the inquest report and 2(3) is his signature. In course of cross examination, he stated that the accused was not mentally ill person. 5. PW-6, Benu Dehengia is an eye witness. He stated that at 12 O’clock on that day, when he returned from cultivation field, he heard some commotion in the house of Upen Borah. He entered the house and saw accused Naresh Borah was hacking his father Upen Borah with a dao. After receiving dao blow, Upen Borah fell down on the ground in front of the back door of the house. Then, out of fear, he returned from there and informed the public. After the incident, accused Naresh fled to jungle where from he was apprehended by the public and police seized the dao from him. This witness was also not cross examined by the defence. 6. PW-7, Prodip Gogoi stated that he was informed by Benu Dehingia, the VDP Secretary about the murder of Upen Borah. He thereafter came to the place of occurrence and saw the dead body with cut injuries in the neck and buttock. Suwala, the mother of the accused told him that accused had cut his father and then fled towards the jungle with a dao. He thereafter came to the place of occurrence and saw the dead body with cut injuries in the neck and buttock. Suwala, the mother of the accused told him that accused had cut his father and then fled towards the jungle with a dao. He along with villagers apprehended the accused from jungle, recovered the dao from him. Exhibit-4 is the seizure list. Material Exhibit-1 is the seized dao. 7. PW-8, Naryan Konwar stated that he heard about the murder and then went to the place of occurrence and saw the dead body of Upen Borah. Police came thereafter and seized the dao from the courtyard. Exhibit-4 is the seizure list, Exhibit-4(2) is his signature and material Exhibit-1 is the dao. 8. PW-9, Probin Gogoi stated that hearing commotion in the house of Upen Borah, he went there and saw Upen Borah lying dead. He heard that Naresh Borah had committed the murder and then fled to jungle near his house. Then he along with the villagers accompanied police and Naresh was apprehended from the jungle. The accused had a beki dao which he threw in the jungle. Police seized the dao and Exhibit-4 is the seizure list and Exhibit 4(3) is his signature. Material Exhibit-1 is the dao. 9. PW-10, Dinesh Borah stated that accused is his younger brother and his mother told him that accused committed the murder. He thereafter fled to jungle wherefrom he was apprehended along with a dao. 10. PW-11, Badon Hazarika stated that having heard about the murder of Upen Borah, he went there. Police and public apprehended Naresh from the jungle and then police took away accused Naresh Borah. He was a witness of Exhibit-2 inquest. This witness was not cross examined by the prosecution. PW-12, Suwala Borah is yet another eye witness and in fact she was the most important eye witness. She is the mother of the accused and widow of the deceased. She said that on the day of occurrence at about 12.30 O’Clock , she was at home. Her husband and her son Naresh were also at home. When she was cleaning the courtyard in the backside, suddenly she heard a scream of her husband calling her. She came near and saw accused Naresh was dealing cut blows on the neck and buttock of her husband. Her husband was holding Naresh and she separated them . Her husband and her son Naresh were also at home. When she was cleaning the courtyard in the backside, suddenly she heard a scream of her husband calling her. She came near and saw accused Naresh was dealing cut blows on the neck and buttock of her husband. Her husband was holding Naresh and she separated them . Her husband fell down on the ground and after a while he breathed his last. Then taking dao in hand, Naresh fled in the jungle. She raised hue and cry. Public gathered there to inform police and then police and public apprehend Naresh from the jungle nearby. In course of cross examination, she denied the suggestion that accused was rebuked by the deceased and the latter killed him in a fit of anger. 11. PW-13, Amrit Borah is another younger brother of the accused. He narrated the same story of hearing news that is elder brother had killed his father. PW-14, Mohon Ojha is the Investigating Officer. He gave vivid description as to how he visited the spot, held inquest over the dead. He apprehended the accused person and then sent up the body for post mortem examination. Upon receipt of the post mortem report, he submitted charge sheet, Exhibit-6 and thereupon the trial was held. 12. The learned trial court examined the accused under Section 313 Cr.P.C when he did not furnish any cogent reply accept denying the allegation made against him. Having considered all these evidence, the learned Sessions Judge by his Judgment and order dated 29.4.2013 held the accused guilty of committing offence under Section 302 IPC and thereupon sentenced him to rigorous imprisonment for life after affording opportunity of hearing to him. This judgment and order has been called in present appeal. 13. We have heard Mr. M Biswas, learned Amicus Curiae on behalf of the appellant and Mr. D Das, learned Additional Public Prosecutor for the State of Assam. We have also perused the evidence placed on record. 14. Mr. M Biswas, learned Amicus Curiae sought to establish that the accused had committed murder of his father in a fit of anger as he was rebuked by his father. Per Contra, Mr. D Das, learned Additional Public Prosecutor vehemently argued that no foundation for such argument has been led by the defence in course of trial. 14. Mr. M Biswas, learned Amicus Curiae sought to establish that the accused had committed murder of his father in a fit of anger as he was rebuked by his father. Per Contra, Mr. D Das, learned Additional Public Prosecutor vehemently argued that no foundation for such argument has been led by the defence in course of trial. Defence did not cross examine PW-6 who is the eye witness and so whatever the witness said went unrebutted in the records. Moreover, a suggestion was given to PW-12, the second eye witness about provocation. Suggestion was given that out of fit of anger, the accused had committed the offence of murder. But PW-12 immediately dismissed the suggestion by saying that deceased never rebuked the accused. On the face of such evidence of PWs-6 and 12, there is no scope to hold a view that there was sudden provocation for which the accused had committed the murder. The accused by such trend of cross examination rather admitted that he had caused death of his father. His only explanation was that he did so out of anger. But such an explanation not having been established by bringing materials on record, this defence fails. Moreover, there are two eye witnesses who deposed in no uncertain terms that the accused had committed the murder and they witnessed it. The accused first dealt a blow on the neck of his father by a sharp weapon like a dao whereupon he fell down near the door with his head facing the ground. Blood was oozing out from the injury of his father but yet the son dealt a second blow with the dao in his hand at his waist and thereby making yet another grievous injury. The poor father died instantaneously because of the two injuries inflicted by his own son. Having noticed such uncontroverted facts brought on record by the prosecution, there is no scope to hold the view that the accused did not intent to cause murder of his father. The learned Sessions judge has rightly held that the accused is guilty of committing offence under Section 302 IPC. There is no scope to interfere with such findings of the learned Sessions Judge in view of the overwhelming evidence including uncontroverted testimony of eye witnesses. 15. The appeal has no merit. It is accordingly dismissed. Sentence of life imprisonment is hereby upheld.