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2016 DIGILAW 960 (GAU)

Raju Borah v. State of Assam

2016-11-01

AJIT SINGH, N.CHAUDHURY

body2016
JUDGMENT AND ORDER : Ajit Singh, J. The sole appellant Raju Borahhas been convicted under Section 302 of the Indian Penal Code and sentenced to imprisonment for life and fine of Rs.3,000/- with default stipulation. 2. The victim of incident was Khirodhar Bordoloi, aged 55 years. 3. According to the prosecution case, on the night of 13.1.2005 around 11 p.m., Khirodhar was celebrating ‘Uruka’ (Bihu Festival) along with his family members as well as with the family members of Ratul Borah (PW-5) at the backyard of his house. Each of the family member was enjoying feast specially arranged by Khirodhar. At that point of time, the appellant came there and started abusing his cousin Ratul Borah by using filthy language. But, on the objection of Khirodhar, he went away. The appellant than after about five minutes again came and repeated his act. Khirodhar asked his guests not to react and went to appellant with a piece of meat to pacify him. Instead, the appellant, in a fit of anger, suddenly, dealt a blow with a dao like object on the head of Khirodhar. Seeing this, when Junti Borah (PW-4), wife of Ratul Borah, came out and tried to caught hold of the appellant, he pushed her. In the result, Junti Borah fell on the cooked meal and sustained simple injuries. Wife Puspa Bordoloi (PW-1) and son Deepak Bordoloi (PW-2) of Khirodhar, who were present at the place of occurrence, are eye witnesses to the incident. Likewise, nephew Ujjal Gogoi (PW-11) also witnessed the incident. 4. Khirodhar was immediately carried to the Gauhati Medical College and Hospital, but he died on way. Chandra Bordoloi (PW-3) is elder brother of Khirodhar. He made the ejahar exhibit 2 against the appellant on 14.1.2005 at Police Station Tezpur. 5. Dr. Tapan Das (PW-9) conducted the post mortem examination on the dead body. He found one lacerated injury measuring 6 cm x 2 cm x brain deep over the forehead. On dissection underlying scalp, he also found fracture on skull bones. The doctor opined that Khirodhar died due to head injury, which was ante mortem in nature and caused by a blunt object. 6. During trial, the appellant abjured his guilt and pleaded false implication. On dissection underlying scalp, he also found fracture on skull bones. The doctor opined that Khirodhar died due to head injury, which was ante mortem in nature and caused by a blunt object. 6. During trial, the appellant abjured his guilt and pleaded false implication. He, however, while being examined as an accused under Section 313 of the Code of Criminal Procedure, stated that he had seen Ratul Borah urinating at the cremation spot of his elder brother on the morning of the date of incident and, therefore, he had an altercation with him. He also stated that, in fact, he was assaulted by the family members of Khirodhar and Ratul Borah, but due to darkness, lathi of someone accidentally landed on the head of Khirodhar. The trial court did not accept the defence of appellant and relying upon the evidence adduced by the prosecution, convicted and sentenced him, as aforesaid. Aggrieved, the appellant has filed the present appeal. 7. Hem Chandra Bordoloi (PW-3) had made the ejahar exhibit 2 against the appellant. He in his cross examination has admitted that he was not an eye witness to the incident and made the allegations against the appellant on the basis of information received. And from whom he got the information, he could not disclose. The evidence of this witness, therefore, does not help the prosecution. 8. Puspa Bordoloi and Deepak Bordoloi are wife and son of Khirodhar. They too were enjoying the feast at the time of incident. They were, therefore, naturally present at the time of incident. They have testified in one voice that when Khirodhar approached the appellant to pacify him by offering meat, the latter dealt a blow on his head with a dao like object. But, these witnesses in their earlier police case diary statements said that appellant had dealt a blow with a stick like object. Likewise, Junti Borah (PW-4) although testified that she saw the appellant hacking on the head of Khirodhar with a dao, she in her earlier police case diary statement stated that blow was given with ‘something’. Nephew Ujjal Gogoi in his evidence has deposed that appellant had dealt a blow with something which he could not see. It is thus apparent that appellant had dealt a blow on the head of Khirodhar with a stick like object and not dao. Nephew Ujjal Gogoi in his evidence has deposed that appellant had dealt a blow with something which he could not see. It is thus apparent that appellant had dealt a blow on the head of Khirodhar with a stick like object and not dao. And also that Puspa Bordoloi, Deepak Bordoloi and Junti Borah have improved the nature of assault out of vengeance. Even in the post mortem examination report exhibit 7 Dr. Tapan Das has opined that blunt like object was used for causing the head injury. It is true that Ratul Borah reiterated in his evidence that appellant had dealt a blow with a dao on the head, but the post mortem examination report does not corroborate his evidence. We are, therefore, of the considered view that appellant had dealt the fatal blow on the head of Khirodhar with a stick like substance and not dao. 9. Having regard to the evidence of eye witnesses – Puspa Bordoloi, Deepak Bordoloi, Junti Borah, Ratul Borah and Ujjal Gogoi, the learned senior counsel for the appellant has not assailed the prosecution story which is well founded and fully proved to the extent that appellant had dealt the fatal blow on the head of Khirodhar with a stick like object. Accordingly, we confirm the finding of the trial court that appellant alone was the perpetrator of the crime. 10. Learned senior counsel for the appellant has however argued that even accepting the prosecution case that appellant has caused the fatal injury on the head, it cannot be said that he had the intention to murder Khirodhar and as such the offence will not be under Section 302 of the Indian Penal Code, but under Part I or Part II of Section 304 of the Indian Penal Code. We find sufficient force in this submission. The incident took place in the courtyard of the house of Khirodhar on a sudden quarrel without any pre-meditation. At that time, Ratul Borah was celebrating ‘Uruka’ with the family members of Khirodhar. There the appellant actually abused Ratul Borah. And this he did because of his personal grievances against Ratul Borah. They were also cousin. To pacify the appellant, Khirodhar went to him and offered a piece of meat. But, in a fit of anger, the appellant dealt a blow with stick like object which landed on his head. There the appellant actually abused Ratul Borah. And this he did because of his personal grievances against Ratul Borah. They were also cousin. To pacify the appellant, Khirodhar went to him and offered a piece of meat. But, in a fit of anger, the appellant dealt a blow with stick like object which landed on his head. The blow proved fatal and resulted into the death of Khirodhar. Also stick like object is not used as a weapon for committing murder. Having regard to the circumstances in which the incident took place particularly the act of appellant we are unable to believe that he had any intention to cause the death of Khirodhar. It can, however, be safely held that he had the knowledge that by causing head injury to Khirodhar with stick like object, the latter would die. 11. Consequently, we set aside the conviction of the appellant under Section 302 of the Indian Penal Code and sentence of life imprisonment awarded to him and instead convict him under Section 304 Part II of the Indian Penal Code and award a sentence of 5 years rigorous imprisonment. The sentence of fine is however affirmed. The appellant is in jail and he be released on his undergoing the jail sentence awarded by us. 12. With the above modification, the appeal is partly allowed.