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2019 DIGILAW 613 (GAU)

Dharmeswar Bora v. State of Assam

2019-05-16

ACHINTYA MALLA BUJOR BARUA, MIR ALFAZ ALI

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JUDGMENT : ACHINTYA MALLA BUJOR BARUA, J. 1. Heard Mr. B.K. Mahajan, learned counsel for the appellant. Also heard Ms. S. Jahan, learned Additional Public Prosecutor, Assam. 2. Office Note dated 16.07.2016 shows that the A/D card with the signature of the informant respondent No. 2 had been received and hence service is complete. In spite of service being complete, none appears for the informant respondent No. 2. 3. An ejahar dated 17.05.2004 was lodged by Prabhat Bora before the Officer-in-Charge of Khatowal Police Station inter alia stating that the accused persons named therein had assaulted Jitumoni Bora, who was standing at his own gateway, on his head with a lathi and after having felled him down, the accused persons dragged him to their own gate way and then struck him on the head with dao and thereby caused grievous injuries. 4. In the circumstance, the accused persons were charged under Section 302/34 IPC on the ground of having intentionally causing death to the deceased Jitumoni Bora in furtherance of a common intention. We take note of that as per the ejahar the accused persons are the present appellant Dharmeswar Bora and his wife Bhanti Bora. We have also taken note of that the in the trial itself, the accused Bhanti Bora stood acquitted. 5. PW-1 Pradip Kakaty in his deposition stated that as per the information given by the parents of deceased Jitumoni Bora, the incident took place in the courtyard of the accused Dharmeswar Bora at around 10.00 p.m. He further deposed that Indreswar Bora came and told him that the accused had assaulted the deceased Jitumoni Bora and requested him to find out whether the persons so injured had died or not. 6. PW-2 Prabhat Bora the informant in his deposition stated that the deceased was apprehended, cut and left in blood smeared condition in the courtyard of accused Dharmeswar Bora. 7. PW-3 Pranjit Bora stated that at about 9.00/9.30 p.m. on the given day he had gone to his bed after having meal and when he heard a commotion, he came out of the gate of his house. When he reached the place of occurrence, he saw that the accused Dharmeswar Bora gave blows on the head of the deceased with a bamboo lathi, which is explained to be a whole bamboo. When he reached the place of occurrence, he saw that the accused Dharmeswar Bora gave blows on the head of the deceased with a bamboo lathi, which is explained to be a whole bamboo. Upon such blows being given, the deceased fell down on the ground and thereafter, the accused had dragged him to his own house. 8. In cross PW-3 had stated against a suggestion that it is not true that he had told the police that he had seen the accused Dharmeswar Bora hitting the deceased on the head with a bamboo lathi and that the accused had dragged Jitumoni Bora up to the step of his house. 9. PW-9 the I/O. upon being cross-examined had stated that PW-3 had not stated before him that he had seen the accused Dharmeswar Bora hitting the deceased with a bamboo lathi and further that PW-3 had seen the accused taking the deceased Jitumoni Bora to the door steps of his house. 10. We have verified the statement of P.W. 3 under Section 161 Cr.P.C. wherein he stated that some persons after assaulting the deceased had left him in an injured condition at the gate of the accused. Taking the aforesaid into consideration, we are of the view that although PW-3 presented himself as an eye witness to the occurrence, but the materials on record indicates that he was not an eye witness. 11. PW-6 Hiranya Kr. Chamuah in his deposition stated that on the night of the occurrence he was returning from Khatuwal village and saw a quarrel in front of the residence of accused Dharmeswar Bora under the head light of his motor cycle. He further deposed that the deceased was caught by the wife of the accused and the accused was shouting and holding lathi in his hand near the deceased. 12. He further deposed that Manju Bora i.e. the wife of the accused had pushed the deceased towards the house of the accused and that the accused assaulted the deceased from behind with a lathi. Although he did not notice, the witness was of the view that the blow with the lathi must have fallen on the head of the deceased. 13. He further deposed that in the meantime, the deceased fell down on the ground and when he fell down the accused further assaulted him with a lathi. Although he did not notice, the witness was of the view that the blow with the lathi must have fallen on the head of the deceased. 13. He further deposed that in the meantime, the deceased fell down on the ground and when he fell down the accused further assaulted him with a lathi. In cross PW-6 stated that both the accused and the deceased were quarrelling in the middle of the road and the deceased fell down in the middle of the road, but the witness did not notice any blood coming out from the injuries. 14. PW-7 in his deposition stated that he was in his residence of his brother when P.W.-6 met him and told him that the deceased was being assaulted by the accused. Although PW-7 deposed that he had seen the accused dragging the deceased towards his courtyard and an electric bulb was burning in the verandah of the house of the accused, but in the cross-examination, he had stated that he had not seen the incident. 15. In Cross, PW-7 deposed that it is a fact that he had stated before the police that there was no other person except his injured son in the courtyard of the house of the accused. 16. PW-8 Dr. Krisnha Bora who had examined the deceased in his injured state while he was hospitalized in Nagaon had stated in his deposition that he had found the following injuries:- "History of alleged physical assault. 1. Multiple cut injury over skull size 6 cm X 1/2 cm X bone deep, size 8 cm X 1/2 cm up to the bone deep. Size 6 cm X 1/2 cm upto to the bone deep. One cut injury over right fore arm measuring 6" X 1" X 1/2" The patient was referred to GMCH for suspected head injury by the surgeon concerned so far opinion, the final report may be collected from the GMCH. Ext. 2 is the injury report and Ext. 2(1) is my signature." 17. In cross examination PW-8 further stated that the injuries were caused by different weapons and that the injuries were clean cut injuries. He further opined in cross examination that it is highly impossible to sustain such injuries if someone is assaulted with a bamboo or if he is dragged. 18. PW-10 Dr. 2(1) is my signature." 17. In cross examination PW-8 further stated that the injuries were caused by different weapons and that the injuries were clean cut injuries. He further opined in cross examination that it is highly impossible to sustain such injuries if someone is assaulted with a bamboo or if he is dragged. 18. PW-10 Dr. Pranjit Khanikar in his deposition stated that he was a post graduate student in the department of Surgery in GMC&H and that upon receiving a call he came and declared the deceased to be dead. He also deposed that he had reported the cause of death of the deceased to be "compound depressed fracture of right frontal bone with dural laceration". 19. As regard the injuries sustained by the deceased, we have taken note that as per the deposition of PW-8 who had initially given the treatment to the deceased, the deceased had three cut injuries on his scull as well as one cut injury in the forearm and while the cut injury on the skull was bone deep, the cut injury on the forearm was 2 inches deep. 20. A reading of the description of the injuries gives an indication that such injuries are incised wound which may have been caused by sharp cutting weapon. 21. The said view is further verified by the opinion expressed by the PW-8 that the injuries were clean cut injuries and further that the injuries were caused by different weapon. If we examine the medical evidence as regards the injuries and compare it with PW-6 the eye witness who had seen the assault, we notice that the assault by the accused upon the deceased were all caused with a lathi. 22. In the circumstance a question would arise whether the cut injuries found on the deceased could have been caused by the accused with a lathi. To that effect, Ms. S. Jahan, learned Additional Public Prosecutor relies upon the provision in 'Modi's Medical Jurisprudence & Toxicology 22nd Edition' wherein, in respect of incised looking wound the following is provided:- "Occasionally, on wounds produced by a blunt weapon or by a fall, the skin splits and may look like incised wounds when inflicted on tense structures covering the bones, such as the scalp, eyebrow, iliac crest, skin, perineum etc, or by a fall on the knee or elbow when the limb is flexed. But the edges of such wounds will be found irregular with a certain amount of bruising and small strands of tissues may be seen at the bottom bridging across the margins, if examined with a hand lens, in the case of wounds of the scalp, the hair bulbs will be found crushed, if they are inflicted with a blunt weapon, but will be found cut and forced into the wound, if produced by a cutting weapon like a heavy edged axe or a chopper." 23. Even if we accept the scientific view propounded in Modi's Medical Jurisprudence, we find that occasionally even if a wound is caused by a blunt weapon or by a fall, the skin splits and may look like incised wounds when inflicted on tense structures covering the bones, such as the scalp, eyebrow, iliac chest, skin, perineum etc. So from the point of view, it may be possible that the cut injuries found on the deceased as deposed by PW-8 may be caused by blunt weapon. 24. But again in the same proposition in the Modi's Medical Jurisprudence & Toxicology, it is provided that the edges of such wounds which may be look like incised wound but caused by blunt weapon, will be found to be irregular with certain amount of bruising and small strands of tissues may be seen at the bottom. As in the instant case, the medical opinion of PW-8 is clear to the extent that injuries on the deceased were clean cut injuries which rules out of there being a possibility that the wounds were irregular with certain amount of bruising etc. 25. From the said point of view, the contention that sought to be raised by the learned Additional Public Prosecutor that the injuries found on the deceased also may have been caused by blunt weapon, in view of the medical evidence rendered by PW-8 has to be ruled out. 26. PW-10, who was the Doctor, who had given the death certificate specifying the cause of death in his deposition stated that the cause of the death was 'compound depressed fracture of right frontal bone with dural laceration'. 26. PW-10, who was the Doctor, who had given the death certificate specifying the cause of death in his deposition stated that the cause of the death was 'compound depressed fracture of right frontal bone with dural laceration'. In cross, against a question as to whether in such injuries the presence of hematoma also should be indicated, the witness replies that for the injuries mentioned by him in his report, there must be hematoma, but he had not mentioned hematoma in his report. 27. We have noticed that the nature of the injuries as stated by the PW-8, Doctor with that of PW-10 Doctor are at variance. If according to PW-8 Doctor, the injuries are incised clear cut wounds, the view expressed by the PW-10 Doctor would be incorrect and on the other hand if the view expressed by the PW 10 Doctor is accepted to be correct, the injuries described by the PW-8 Doctor appears to be incorrect. 28. We have taken note of that the PW-8 Doctor was the Doctor who was in charge of the treatment to the deceased when he was admitted at Civil Hospital, Nagaon immediately after the occurrence had taken place and it being so, his observation of the injuries on the deceased in our view would be more reliable. On the other hand, the PW-10 Doctor at no stage has indicated in his evidence that he was in charge of the treatment to the deceased during his treatment at GMCH Hospital Guwahati and he was called only for the purpose of issuing the death certificate stating the cause of the death. In a comparative consideration, we have to accept the views expressed by the PW-8 Doctor as regards the injuries to be more correct with that of the PW-10 Doctor. 29. Even if we take the view of both the Doctors to be correct, the injury 'compound depressed fracture of right frontal bone with dural laceration' appears to be absent when the PW-8 Doctor had initially examined the deceased immediately after the occurrence. 30. 29. Even if we take the view of both the Doctors to be correct, the injury 'compound depressed fracture of right frontal bone with dural laceration' appears to be absent when the PW-8 Doctor had initially examined the deceased immediately after the occurrence. 30. In the given circumstance, when we relate the eye witness account of P.W.-6 that the assault by the accused was with a lathi and that of the incised wounds found upon the deceased by the Doctor immediately after the occurrence while giving him the treatment, both appears to be incompatible with each other, more so in view of the medical propositions and evidences as discussed above. 31. From the evidence on record, it is discernible that the accused had caused the assault on the deceased with a lathi and, therefore, any injury that may have been caused to the deceased with a lathi can alone be attributable to the act of the accused appellant. The other injuries found on the deceased by PW-8 Doctor, pertaining to incised wound clean cut injuries cannot be attributable to any of the materials on record showing the assault on the deceased and, therefore, from the point of view of the materials on record, explanation for such injuries of incised clear cut wound is unavailable. 32. Accordingly from the aspect of the materials available on record, the assault by the accused appellant upon the deceased with a lathi can only be found to be acceptable, and if it is so the accused appellant can be held guilty of committing an offence only under Section 323 of the IPC. We do not find any other material on record from which any offence other than 323 IPC can be made attributable to the accused appellant. Accordingly, the accused appellant is convicted under Section 323 of the IPC. 33. As the sentence under Section 323 IPC is for a period upto one year and the accused appellant having already been in prison for about 3(three) years, we accordingly, set him at liberty forthwith, provided he is not wanted in connection with any other case. 34. The judgment and order dated 5.1.2016 of the learned Sessions Judge, Nagaon in Sessions (T-1) Case No. 180(N)/2005 convicting the accused appellant under Section 302 of the IPC and sentencing him to undergo rigorous imprisonment for life and to pay a fine of Rs. 34. The judgment and order dated 5.1.2016 of the learned Sessions Judge, Nagaon in Sessions (T-1) Case No. 180(N)/2005 convicting the accused appellant under Section 302 of the IPC and sentencing him to undergo rigorous imprisonment for life and to pay a fine of Rs. 10,000/- in default thereof, a further simple imprisonment for one year is accordingly set aside. 35. Appeal stands allowed to the extent indicated above. Send back the LCR.