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2019 DIGILAW 1005 (GAU)

Dandeswar Borah v. State Of Assam

2019-09-06

RUMI KUMARI PHUKAN

body2019
JUDGMENT : Rumi Kumari Phukan, J. Heard Mr. M. Biswas, learned counsel appearing for the appellant/accused as well as Mr. D. Das, learned Addl. P.P., Assam appearing for the State respondent. 2. This appeal is preferred against the judgment and order dated 31.03.2018, passed by the learned Sessions Judge, Dhemaji in Sessions Sessions Case No.93 (DH)/2015, whereby the appellant/accused Dandeswar Borah has been convicted u/s.304 Part-II of the IPC and sentenced him to undergo rigorous imprisonment for 7 years and to pay a fine of Rs.1,000/-, in default to undergo further rigorous imprisonment for another one month. 3. The prosecution case in brief is that: on 22.07.2014, informant Smti Sanjumoni Borah lodged an ejahar with the Dhemaji P.S., alleging inter alia that on 21.07.2014, at about 8 P.M., the accused persons namely Dandeswar Borah, Smti. Bijumoni Borah, Kan Buragohain and Dipen Borah quarreled with her father Jiten Borah and assaulted him with dao and axe, resulting his death. Accordingly the Dhemaji P.S. Case No.189/2014, u/s.302/34 of the IPC was registered and after completion of the investigation, charge sheet was submitted u/s.302/34 of the IPC, against accused Dandeswar Borah, Smti. Bijumoni Borah and Dipen Borah. 4. On appearance of the accused and after going through the materials available before it, the learned trial Court framed charge against all the three accused persons, named above and the charges were read over and explained, to which the accused persons pleaded not guilty and claimed to be tried. 5. During the course of trial, the prosecution examined altogether nine witnesses including the I.O. and the M.O., in support of their case whereas defence examined none is support of their defence. After completion of evidence, statement of the accused u/s.313 CrPC was recorded and after perusal of the materials available and considering the statement of witnesses, convicted accused Dandeswar Borah as aforesaid. On the other hand, the accused persons namely Smti. Bijumoni Borah and Dipen Borah were found not guilty and were acquitted from the offence alleged. 6. Being aggrieved by the aforesaid order of conviction and sentence, the present appeal is preferred on the ground inter alia that the impugned judgment and order was passed mechanically, without application of mind, the learned Court below erred in law, that none of the prosecution witness had implicated the accused person with the offence alleged, etc. 6. Being aggrieved by the aforesaid order of conviction and sentence, the present appeal is preferred on the ground inter alia that the impugned judgment and order was passed mechanically, without application of mind, the learned Court below erred in law, that none of the prosecution witness had implicated the accused person with the offence alleged, etc. and prays for setting aside and quashing of the impugned conviction and sentence, as awarded by the learned trial Court. 7. I have heard the arguments advanced by the learned counsel for the parties and also perused the materials available before me. 8. PW.1 Smti Sanjumoni Borah, the informant stated in her evidence that accused/appellant Dandeswar Borah is her elder brother and deceased Jiten Borah was her father. On 21.07.2014, at about 8 P.M., accused/appellant Dandeswar Borah, her another brother Dipen Borah, one Kon Buragohain and Smti. Bijumoni Borah, sister-in-law of PW.1 and wife of accused/appellant Dandeswar Borah, were drunk and quarreled with her father and assaulted him with 'dao' and 'axe', resulting in his death. She stated that at the time of occurrence, she was present in the house of her father and she saw the incident with her own eyes. She raised hue and cry and the neighbouring people gathered at the place of occurrence. On the following day i.e. on 22.07.2014, she lodged the FIR (Ext.1) and Ext.1(1) is her signature. She was present when the police seized the weapon of offence i.e. 'kuthar' (axe) vide M. Ext.1 and the 'dao' vide M. Ext.2, through seizure list Ext.2 and Ext.2(1) is her signature. 9. PW.2 Prabhat Borah is the younger brother of the deceased and accused Dandeswar Borah and Dipen Borah are his nephew and accused Smti. Bijumoni Borah is her niece. This witness came to know that the accused persons assaulted his brother Jiten Borah, causing his death and hearing about the incident, he came to the place of occurrence. This witness stated that the police seized one 'axe' and a 'dao' in his presence vide Ext.2 seizure list and Ext.2(1) is his signature. 10. PW.3 Mohan Borgohain also a hearsay evidence who arrived at the place of occurrence after hearing about the incident and he was present when the I.O. seized the weapon of offence vide Ext.2 and Ext.2(3) is his signature. 11. PW. 10. PW.3 Mohan Borgohain also a hearsay evidence who arrived at the place of occurrence after hearing about the incident and he was present when the I.O. seized the weapon of offence vide Ext.2 and Ext.2(3) is his signature. 11. PW. 5 Ghanashyam Chutia who is next door neighbor of the deceased Jiten Bora has stated that on the day of occurrence while returning from buffalo shed he saw the accused Dandeswar lying in front of the compound of his house and his wife Bijumoni was crying and then he left the place saying do what you want. He further stated that he did not know who killed Jiten Bora and only heard that there was a fight. 12. In the same way, PW.6 Puna Chutia also a reported witness who was stated about the incident by the informant. PW.7 is the wife of accused Dipen Borah and stated that she saw deceased Jiten Borah and accused Dandeswar Borah engaged with an altercation and during the process, accused Dandeswar Borah took a 'mesy dao' and assaulted his father Jiten. 13. PW.8 Kon Buragohain stated in his evidence that accused Dandeswar Borah worked with him and on the date of occurrence, at the relevant time he came to drop accused Dandeswar in his house, who invited him inside and offered betel nut. At that time deceased Jiten came and assaulted accused Dandeswar and while the accused tried to save himself by holding the 'dao', his sustained cut injury on his hand. Then they grappled with each other and at that time one Tipai came and assaulted his father. 14. PW.4 Dr. Debajit Doley is the Medical Officer, who conducted post mortem examination on the dead body and found the following: (i) Right temporal part about 9 cm X 5 cm X 4 cm in size. (ii) Right side of face two in number size 5 cm X 2 cm X 4 cm and second 8 cm X 2cm X 4 cm (iii) Posteriors part of the skull with avulsion of posterior occipital part triangular in shape (iv) Single lacerated injury present, left side of skull about 8 cm X 5 cm X 5 cm. He has opined that the death was due to brain haemorrhage followed by injury to the brain and it was ante-mortem in nature. Ext.4 is the post mortem report and Ext.4(1) is his signature. 15. He has opined that the death was due to brain haemorrhage followed by injury to the brain and it was ante-mortem in nature. Ext.4 is the post mortem report and Ext.4(1) is his signature. 15. PW.9 S.I. Bhim Kanta Pegu stated that on 22.07.2014, he was attached officer of the Dhemaji P.S. and on that day, after receiving the ejahar filed by Smt. Sanjumoni Borah, the officer-in-charge of the Police Station registered the Dhemaji P.S. Case No.189/2014, u/s.320/34 of the IPC and entrusted him with the investigation of the case. Accordingly he took the investigation, visited the place of occurrence and prepare the sketch map vide Ext.5 and Ext.5(1) is his signature. The I.O. also recorded the statement of witnesses and conducted inquest on the dead body and sent the dead body for post-mortem examination. He also arrested the accused persons and seized the weapon of offence but in the meantime, before submitting the charge, sheet he was transferred and SI Dilip Bania field the charge sheet vide Ext.6 and Ext.6(1) is the signature of Dilip Bania. 16. In cross-examination he has stated that PW.1 Sanjumoni Bora did not state before him that at that time she was staying with her father and has also not stated that she has seen the occurrence. The PW2 Prabha Bora stated before him that Sanjumoni told him about the occurrence. 17. Needless to say edifice of prosecution case is the FIR as well as the evidence on record and charge alleged in the FIR is to be substantiated by requisite evidence which should not only be corroborative, substantive, but it should be equally legal and convincing having the ring of truth. No case can survive when the edifice of the prosecution case is shaken, raising serious doubt about the authenticity of the allegation. Of course, in quest of the truth, the court can sift from the chaff but for the purpose there must be some positive/convincing evidence on record. 18. The story depicted in the present case is not only inconsistent but also contrary on material aspect which requires deeper probe into the entire evidence on record to appreciate as to whether the decision rendered by the trial court is on the basis of legal evidence and sustainable in the eye of law. 18. The story depicted in the present case is not only inconsistent but also contrary on material aspect which requires deeper probe into the entire evidence on record to appreciate as to whether the decision rendered by the trial court is on the basis of legal evidence and sustainable in the eye of law. In the instant case the FIR was filed by the informant/daughter of the deceased and according to her all the four accused persons named in the FIR, i.e. Dandeswar Bora, Smti. Bijumoni Bora, Dipen Bora and Kon Buragohain conjointly assaulted her father with sharp weapon like dao, kuthar by confining him inside the room and on her hue and cry calling neighbouring persons the accused also tried to kill her for which she fled away. Apparently, by her allegation she has implicated four accused persons and the occurrence took place in her presence. It is also her specific evidence in course of trial that she saw the incident with her own eyes. 19. Now the following infirmities can be taken into account which has emerged from the evidence on record: The claim of the informant that she was present in her house on the day of occurrence is negated by the evidence of the I/O as soon as I/O has contradicted her statement that she did not state before the I/O that she was in the house of her father neither she had seen the occurrence. Apparently she is not an eye witness to the occurrence. Evidence of PW.1 lacks clarity as to who carried what sort of weapon, the manner of assault and how accused Dandeswar Borah also sustained injury. None of the witnesses has supported the case of the informant but each of the witnesses has given distorted version of the case, which is itself inconsistent to the story depicted by PW1. There is no any eye witness to the occurrence. The evidence of PW3 that accused Dipen Bora called him and stated about some fight between them is not a clear picture of the incident as to who assaulted whom or who was the aggressor. There is no any eye witness to the occurrence. The evidence of PW3 that accused Dipen Bora called him and stated about some fight between them is not a clear picture of the incident as to who assaulted whom or who was the aggressor. The evidence of PW5 being the next door neighbour of the deceased has not spell about as to how the occurrence took place, save and except that he found the accused Dandeswar lying injured near in front of his house and he do not know who killed the deceased. The evidence of PW6 is similar to that of PW5 who has not given any clear picture of the occurrence and he simply suspects that the deceased Jiten has been killed by his sons. The evidence of PW7 is more astounding (the wife of one of the accused Dipen Bora) who has given a different story than that of PW1 that there was a fight between the accused Dandeswar and the deceased Jiten and Dandeswar came out with a dao in his hand then her husband assaulted Dandeswar with a dao. Such an evidence cannot simply be accepted on the ground that her evidence is contrary to the evidence of PW1 as well as the FIR and she is wife of one of the accused named in the FIR. The evidence of PW8 is altogether on different footing and peculiarly enough he was one of the accused named in the FIR. There is nothing on record as to how an accused turned as a witness. His evidence shows that it was the deceased Jiten who assaulted the accused Dandeswar with a dao and accused Dandeswar sustained injury on his hand as he tried to save himself by holding the dao and his father scuffled with Dandeswar and then one person namely Tipai hit the deceased. Obviously such a story inconsistent to the allegation in FIR is not at all inspiring, convincing rather it has no evidentiary value, in terms of the allegation. As per the allegation the deceased was assaulted with dao and axe etc. but there was no such severe cut injury found on the deceased as per the finding of the Medical Officer/PW.4. Morever, in absence of any other supportive evidence to the occurrence the evidence of Medical Officer is of no consequence. 20. As per the allegation the deceased was assaulted with dao and axe etc. but there was no such severe cut injury found on the deceased as per the finding of the Medical Officer/PW.4. Morever, in absence of any other supportive evidence to the occurrence the evidence of Medical Officer is of no consequence. 20. The above serious discrepancies in the entire prosecution case have not only belied the case of the informant but has also shaken the authenticity of the allegation. There is lack of evidence as to the genesis of the occurrence. No any clear and convincing evidence, neither direct or circumstantial evidence as to one under what circumstances the deceased succumbed to his injury or the present accused sustained injury on his person. Being a court of law we are concerned with legal evidence to robe a person with the offence charged. It is noted with concerned that it is a poorly conducted case by prosecution and none of the witnesses were declared hostile for giving such inconsistent evidence. But while arriving at the decision the court has its bound to confine its findings only with legal evidence not on assumption and presumption, and not to be swayed by irrelevant consideration. 21. Now in the present case the accused have been convicted by the learned trial court under Section 304 (Part-II) IPC which provides punishment for culpable homicide not amounting to murder. The Section 299 IPC defines culpable homicide that whoever causes death by doing an act with the intention of causing death or with intention of causing such bodily injury as is likely to cause death or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide. 22. Whenever a court is confronted with the question whether the offence is murder or culpable homicide not amounting to murder, the approach would be on the facts of the case. The question to be considered : (i) whether the accused has done the act by doing which has caused the death of the another? (ii) whether the act of the accused amounts to culpable homicide as defined in section 299 IPC? (iii) Whether facts proved by the prosecution bring the case within the definition of murder under Section 300 or the offence culpable homicide under Section 299 IPC? 23. (ii) whether the act of the accused amounts to culpable homicide as defined in section 299 IPC? (iii) Whether facts proved by the prosecution bring the case within the definition of murder under Section 300 or the offence culpable homicide under Section 299 IPC? 23. In view of the discussion and legal provision, it can be safely held that none of the legal requirement is established in the present case to prove the offence under Section 304 (Part-II) IPC. The decision of the learned trial court which is not based on proper appreciation of oral and legal evidence, being erroneous is not sustainable. The accused/appellants deserve benefit of doubt. 24. Resultantly, the appeal is allowed. The impugned judgment and order is hereby quashed and set aside. 25. Return the LCR along with a copy of the judgment.