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2018 DIGILAW 987 (GAU)

Jintu Bora @ Baba v. State of Assam

2018-06-25

ACHINTYA MALLA BUJOR BARUA, SUMAN SHYAM

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JUDGMENT & ORDER : A.M. Bujor Barua, J. Heard Ms. R.D Mazumdar, learned Amicus Curiae, appearing for the accused/appellant and Mr. N.J. Dutta, learned Additional Public Prosecutor for the State of Assam. 2. An ejahar dated 30.04.2011 was lodged by Shri Rupam Phukan alleging that his cousin Jintu Bora @ Baba who came to their house from Amguri on a social visit had killed another cousin Manabjyoti Gogoi by hitting him on his head and back with a hoe while he was working. 3. The informant Rupam Phukan in his deposition as PW-1 had stated that the incident took place at about 7.30 a.m. and at that time, the deceased Manabjyoti Gogoi was working in their enclosed courtyard with a hoe. The witness who was sleeping, woke up upon hearing his father screaming and when he went to the place of occurrence, he found that the accused was standing with a hoe in his hand alongside the spot where the deceased Manabjyoti Gogoi was lying. The witness also stated that the accused had confessed in their presence that he had assaulted Manabjyoti Gogoi with a hoe. 4. PW-2 Rajen Phukan in whose courtyard the incident occurred had stated that at around 7.00 clock in the morning he saw Manabjyoti Gogoi lying in the bank of their pond and he also saw the accused nearby with a hoe in his hand and also saw some cut injuries in the body of the deceased including his head and back. When the witness asked the accused, he had replied that he had assaulted the deceased. In the meantime, his son Rupam Phukan i.e. PW-1 had also arrived. In cross also, the witness reiterates that he saw Manabjyoti Gogoi lying on the ground and the accused was standing nearby. 5. PW-3 stated that the accused seen near the body of the Manabjyoti Gogoi. 6. PW-6 Sunprova Borah, who is the mother of the accused and also declared to be a hostile witness had denied to have stated before the police that after drinking tea, the deceased Manabjyoti Gogoi had left the place taking a hoe in his hand towards compound of the house and at that time, the accused Jintu Bora who was standing alone in the residence of Rajen Phukan (PW-2) was told by his mother to go out of the house and work along with Manabjyoti Gogoi. 7. 7. The accused Jintu Bora in his statement under Section 313 Cr.P.C. had stated as follows:- “though I was standing near the deceased but I did not assault and kill him. I do not know as to who caused death of Manab Jyoti Gogoi.” 8. The post-mortem report and also as deposed by the PW-5 reveals the following injuries on the deceased:- (1) Lacerated injury of size 15 cm x 2 cm x bone deep over temporal region on left side. (2) Lacerated injury of size 12 cm x 2 cm x bone deep over occipital area. (3) Abrasion of size 30 cm x 30 cm over back chest left side. (4) Abrasion of size 3 cm x 1.5 cm over front of chest over cervical on right side. (5) Contusions of size varying from 5 cm x 2 cm over outer aspect of right shoulder joint. 9. The evidence of PW-2 Rajen Phukan in whose courtyard the incident had occurred clearly reveals that firstly, immediately after the occurrence, the accused was seen standing near the body of the deceased with a hoe in his hand and that when asked, the accused had told him that he had killed the deceased. When the statement of the PW-2 under Section 161 Cr.P.C. is examined, it is noticed that the said witness had also stated before the police that the body of the deceased Manabjyoti Gogoi was lying on the bank of the pond in the courtyard of his house and the accused Jintu Bora with a hoe in his hand was standing near the body of Manabjyoti Gogoi. The witness further stated under Section 161 Cr.P.C. that when he had asked Jintu Bora as to what he had done, it was replied by the accused that he had killed the deceased. 10. The statement made by PW-2 under Section 161 Cr.P.C. before the police as well as in his deposition are in conformity with each other and hence, no reason can be found as to why they cannot be taken into consideration to establish the allegation made against the accused. A note is also taken of the evidence led by PW-2 that PW-1 Rupam Phukan had in the meantime came to the place of occurrence, who also stated that he had seen the accused standing with a hoe in his hand beside the spot where the deceased Manabjyoti Gogoi was lying. A note is also taken of the evidence led by PW-2 that PW-1 Rupam Phukan had in the meantime came to the place of occurrence, who also stated that he had seen the accused standing with a hoe in his hand beside the spot where the deceased Manabjyoti Gogoi was lying. The witness Rupam Phukan in his statement under Section 161 Cr.P.C. had also stated that the deceased Manabjyoti Gogoi was lying faced down and the accused Jintu Bora and his father were standing beside the body. It was also stated by the said witness that when he asked what had happened, many had told him that the accused Jintu Bora had killed the deceased Manabjyoti Gogoi. 11. The aspect of the accused making a confession may be at some variance with his statement made in his examination before the Court under Section 161 Cr.P.C., but the other statement that he had seen the accused Jintu Bora was standing near the body of the deceased Manabjyoti Gogoi with a hoe in his hand are in conforminty with each other. 12. From the aforesaid evidence of PW-2 that he had seen the accused standing with hoe near the body of the deceased and that the accused had confessed before him that he had killed Manabjyoti Gogoi are both corroborated in his statement under Section 161 Cr.P.C. As regards the deposition of PW-1 that he had seen the accused Jintu Bora standing near the body of the deceased Manabjyoti Gogoi with a hoe in his hand, has also been corroborated by his statement under Section 161 Cr.P.C. as well as the evidence of PW-2 in his deposition under Section 161 Cr.P.C. The statement of the accused under Section 313 Cr.P.C. further shows that though he was standing near the deceased, but he did not assault him and that he does not know as who had caused the death to the deceased, also establishes the fact that the accused was present near the body of the deceased, although he denies that he had assaulted and killed him. 13. 13. The aforesaid sequence of events where PW-1 and PW-2 deposes that the accused was seen standing near the body of the deceased with a hoe in his hand, which is also the weapon seized for committing the offence, which again has been duly corroborated in their statements u/s 161 Cr.P.C; the confession of the accused before the PW-2, in whose court yard the incident had occurred, that he had killed the deceased, which again is corroborated by his statements u/s 161 Cr.P.C and further the factor that there is no explanation by the accused although he had stated that he was standing near the deceased, but did not assault and kill him, goes to show that the chain of events leading to the conclusion, beyond all reasonable doubt, that is the accused alone, who had committed the offence, is complete. 14. In such view of the matter, although there was no eye witness to the incident, but circumstantial evidence had proved beyond all reasonable doubt that it is the accused alone, who had committed the offence. Further, from the postmortem report as well as from the evidence of the PW-5, it is taken note of that five injuries were found on the body of the deceased, out of which, two injuries being a lacerated injury bone deep over temporal region on left side and lacerated injury also bone deep over occipital area goes to show that at least two fatal blows were given on the body of the deceased. Further injury of abrasion over the back of chest left side and front of chest over cervical on the right side and contusions of varying size on the right shoulder joint goes to show that at least five blows were given by the accused on the body of the deceased. The conduct of the accused also shows that all the ingredients for an offence u/s 302 IPC is present in the instant case. 15. In view of the above, we find no reason to interfere with the judgment and order dated 30.06.2016 of the learned Sessions Judge, Jorhat in Sessions Case No.95(J-J) of 2011 convicting the accused/appellant u/s 302 IPC sentencing him to an imprisonment for life with a fine of Rs.15000/- (rupees fifteen thousand) is upheld. 16. Accordingly, we find that the appeal is devoid of any merit and the same is accordingly dismissed. 17. 16. Accordingly, we find that the appeal is devoid of any merit and the same is accordingly dismissed. 17. Registry is directed to send back the LCR immediately. 18. Before parting with the record, we appreciate the valuable services rendered by Ms. R.D. Mazumdar, learned Amicus Curiae. Accordingly, we direct the Assam State Level Services Authority to pay the entitled fee of Amicus Curiae to Ms. R.D Mazumdar on production of a certified copy of this judgment.