Dibyajyoti Borah vs State Of Assam And Anr

Manish Choudhury, J

Heard Mr. S. Borgohain, learned counsel for the appellant and Ms. S. Jahan, learned Additional Public Prosecutor for the State. None has

appeared for respondent no. 2, though he was reportedly served with the notice.

This appeal under Section 374, Code of Criminal Procedure, 1973 (Cr.P.C., in short) is directed against the judgment and order dated 18.01.2016

passed by the learned Sessions Judge, Golaghat in Sessions Case No. 80/2011. By the said judgment and order, the accused-appellant was convicted

under Section 302, Indian Penal Code (I.P.C.) and has been sentenced to undergo imprisonment for life and to pay fine of Rs. 10,000/-, in default of

payment of fine, to undergo simple imprisonment for another 3 (three) months.

The case of the prosecution is that one Sri Ajit Borah (P.W.6), on 15.03.2011, lodged an First Information Report (FIR) before the Officer In-

Charge, Kamargaon Police Station stating, inter alia, that at about 2-30 a.m. of the night intervening 14.03.2011 and 15.03.2011, the accused-appellant

viz. Sri Dibyajyoti Bora @ Pinku, a co-villager of the informant, intentionally killed one Ritul Bora, who had come to their village from Dhodang village

to enjoy Bhaona arranged in their village, Madhya Bongaon by the villagers, by stabbing the said Ritul Bora with a dagger without any reason in a spot

near the place where the Bhaona was being staged. It was further stated that at the time of lodging the ejahar the dead body of Ritul Bora was lying

near the place of occurrence.

On receipt of the said FIR, the Officer In-Charge, Kamargaon Police Station registered a case being Kamargaon Police Station Case No. 21/2011

under Section 302, I.P.C. on 15.03.2011 and the investigation of the case was entrusted to one Sri Abdus Salam, S.I. The accused-appellant was also

arrested immediately on 15.03.2011. During the investigation, the Investigating Officer (I.O.) of the case i.e. P.W.6 got the statements of 3 (three)

witnesses, P.W.1, P.W.2 and P.W.4, recorded under Section 164, Cr.P.C. on 16.03.2011. The I.O. had also visited the place of occurrence and

recorded the statements of the witnesses under Section 161 Cr.P.C. During such investigation, he seized the alleged weapon of offence. After

collection of the Post Mortem examination report and other necessary materials, the I.O. submitted the charge sheet against the accused-appellant

finding a prima facie case under Section 302, I.P.C. against him. On submission of the charge sheet, and on appearance of the accused before the

Court of Judicial Magistrate, First Class, Golaghat, the learned Judicial Magistrate finding the case to be a Sessions triable one, committed the case to

the Court of Sessions, Golaghat for trial after due completion of the procedure prescribed under Section 207, Cr.P.C. On receipt of the case records,

the Court of Sessions, Golaghat registered the Sessions Case No. 80/2011. After hearing the parties, the learned Sessions Judge framed a charge

under Section 302, I.P.C. against the accused-appellant. When the said charge was read over and explained to the accused-appellant, he pleaded not

guilty and claimed to be tried.

During the course of trial, the prosecution side examined 11 (eleven) nos. of witnesses including the Medial Officer and the I.O., in order to bring

home the charge framed against the accused-appellant. The prosecution witnesses are :- P.W.1 â€" Sri Laki Borah; P.W.2 â€" Sri Champak Neog;

P.W.3 â€" Dr. Rajib Phukan, the then Medical & Health Officer (I), Kushal Konwar Civil Hospital, Golaghat; P.W.4 â€" Sri Lachit Borah; P.W.5 â€

Sri Keshab Borah; P.W.6 â€" Sri Ajit Borah, the informant; P.W.7 â€" Sri Bihuwa Karmakar; P.W.8 â€" Smti. Bimala Borah; P.W.9 â€" Probin

Charingia; P.W.10 â€" Sri Bipul Borah; and P.W.11 â€" Md. Abdus Salam, the then In-Charge, Khumtai Police Outpost & the I.O. of the case. After

examination of the prosecution witnesses, the accused-appellant was examined under Section 313 Cr.P.C. The plea of the accused-appellant was that

of denial. The defence also examined 2 (two) witnesses, D.W.1 â€" Sri Budheswar Borah & D.W.2 â€" Sri Goben Baruah, in support of their case.

On completion of the trial, the learned Sessions Judge, finding the accused-appellant guilty of the charge under Section 302 I.P.C., had convicted and

sentenced the accused-appellant, as has been indicated above.

P.W.1, Sri Laki Borah had stated in his examination in chief, that the occurrence took place at around 1-30/2-00 a.m. and there was a Bhaona

(theatrical performance in an old Assamese style) at Bongaon Namghar. He was in charge of the electricity installation at the Namghar and at the

relevant point of time, he was doing his said duty as the Bhaona was being performed. He stated that one Sri Champak Neog (P.W.2) had opened a

stall near the place where the Bhaona was being staged. As he was eating Pakora, etc. in the stall of Champak Neog, the accused-appellant by taking

out Khukuri like weapon, stabbed the victim, after asking him as if he had seen such thing. P.W.1 stated to have seen the incident from a distance of

20/25 feet. He further stated he made a phone call to ‘108’ ambulance service but it did not arrive by responding that they did not come in such

type of cases. This witness deposed that he saw injuries in the legs and thighs of the victim. In his cross-examination, he stated that he did not see

clearly as to what had happened. Though there was adequate light inside the shop but light was insufficient at the place of occurrence. About the

presence of persons, P.W.1 stated that there were about 6/7 people inside the shop but he did not indicate how many people were outside the shop.

P.W.2 stated to have known the accused-appellant, as his neighbour and also P.W.1. He did not know the deceased from earlier. He deposed that

the occurrence took place around 1-00 a.m. He had a stall near the Namghar where he was selling Pakoras and Alo chop (Potato croquettes). At the

time of the incident, the Bhaona was going on in the Namghar and he was in his stall. He saw both the accused-appellant and the deceased quarrelling

about 15/20 feet away and the accused-appellant after brandishing a dagger, stabbed the victim with the dagger. Having seen the same, P.W.2 stated

to have closed his shop and went away. He deposed that the victim did not belong to their village. He, in his cross-examination, stated that he was

busy with the customers in his stall at the time of the incident, which he had opened near the Namghar. He stated to have told police that he had seen

the accused-appellant brandishing the dagger, by denying the suggestion put to that opposite effect.

P.W.3 stated that he, on 15.03.2011, had conducted the post-mortem examination of the dead body of the deceased, Late Ritul Borah at Kushal

Konwar Civil Hospital, Golaghat. After narrating the injuries he found in the body of the deceased and exhibiting the Post-Mortem Examination Report

as Ext.-1, he opined that the cause of death was due to shock and haemorrhage as a result of the grievous injuries sustained by the deceased. In

cross-examination, P.W.3 stated that he did not, in his report, mention about the nature of the injuries and the nature of the weapon used.

P.W.4 also knew the accused-appellant from before but he came to know about the deceased only after the incident. He deposed that the incident

where the victim died, had happened at about 1½/2½ hours in one day in the month of Phagun (15th February to 15th March). At that time, he

deposed, a Bhaona was being staged and performed in the Namghar. He along with Champak (P.W.-2) and another person was standing near a Pan

shop to have betel nut when he saw an alteration taking place between the accused-appellant and the victim, who came from Dhudang to enjoy the

Bhaona with his in-laws. He stated that at first, the accused-appellant hit the victim in his private parts with his knee and thereafter, he assaulted the

victim in his thigh/leg with a dagger. Having seen the same, he went to inform the Bhaona Committee members. On being asked by people, he called

‘108’ ambulance service but it did not arrive. He exhibited his statement, Ext.-2, made before the Court. In his cross-examination, he stated that

the occurrence took place at around 1-00 a.m. or 2-00 a.m. He denied the suggestion that there was no light at the place of occurrence. He stated

that at that time about 200/250 persons were enjoying the Bhaona. There was nobody with him when he witnessed the incident which took place

outside the shop and near Keshab Borah’s (P.W.5) Pan shop where he came to have betel nut. He testified that there was light inside the shop

and it lit up the outside too. He denied the suggestion that it was dark outside and that he did not say before police about the manner of assault by the

accused-appellant on the victim. Though he initially said that he had seen the dagger but, later on, he denied to have seen it.

P.W.5 also knew the accused-appellant as he belonged to the same village. He came to know about the deceased from others. He stated that the

incident took place around 2-00 a.m. near Hari Mandir when he was having Pakoras at the shop of P.W.2. After eating Pakoras, he in order to bring

water from the tube-well, went a little distance away. When he reached the place of occurrence after bringing water, he saw the dead body lying in

front of the shop of P.W.2. He found people gathering there and he heard that the accused-appellant had killed the deceased. In his cross-

examination, he stated that he had not seen the occurrence.

P.W.6 also knew the accused-appellant from before but he came to know about the deceased only on the date of occurrence. He also said about

the Bhaona being staged in that night in the Hari Mandir Namghar of their village. He being the Secretary of the Bhaona Committee, was sitting near

the stage. At about 2-00 a.m., a commotion took place and P.W.4 informed them about the incident. P.W.4 told them that the accused-appellant had

killed Ritul Borah who had come there to enjoy the Bhaona. The incident took place in the compound where the Bhaona was held. P.W.6 saw the

dead body of Ritul Borah lying on the ground. He stated to have called ‘108’ ambulance service. When police reached the place of occurrence

after an hour, he wrote the FIR (Ext.-3) there and gave it to police there itself. During his cross-examination, he admitted that he did not see the

occurrence himself but had seen the injuries sustained by the deceased.

P.W.7 knew both the accused-appellant and the deceased. He stated that he was in duty of the generator set during the time the Bhaona was

being performed at Bongaon Namghar on the night of occurrence of the alleged incident of death. This witness was not cross-examined by the

defence.

P.W.8 knew the accused-appellant as he lived in the other side of the house. The deceased was her son-in-law. She stated that when the

occurrence took place in the premises of Namghar, she was enjoying the Bhaona at the Natya Mandir, near the Namghar. She stated that her son-in-

law i.e. the deceased had also come to watch the Bhaona. When at about 10-30 p.m., she heard a commotion taking place near the Namghar she

came out and found her son-in-law lying at the place of occurrence. She was told by the people that the accused-appellant had cut him. The people

thereafter, searched for the accused-appellant and he was found sitting atop a bamboo plant. The police and the public brought down the accused-

appellant from the bamboo plant and took him away. Her son-in-law succumbed to the injuries before the arrival of ‘108’ ambulance service. In

the cross-examination, she stated that around 11-00 p.m., her son-in-law came near her when she was enjoying the Bhaona to give her betel nut

leaves. The spot where the deceased was found lying, was at some distance from the stage.

P.W.9 also knew the accused person. This witness also said about the Bhaona being staged at Bongaon on the date of the incident. The Officer

In-Charge, Sri Dipak Barman brought him from his home to the house of the accused-appellant. One Sri Bipul Borah (P.W.1) produced a ‘Mit’

Dao stated to have been used in the occurrence, from the granary and handed it over to police, who seized it vide a seizure list (Ext.-4) taking his

signature. In his cross-examination, he deposed that he did not know whether the seized Dao was used in the incident or not.

P.W.10 knew both the accused-appellant and the deceased. He also stated about the Bhaona being performed at Hari Mandir Bongaon on the

date of the incident. P.W.6, a V.D.P. member, the Secretary of Bhaona Management Committee and the informant, informed him about the accused-

appellant killing Ritul Borah by hacking him with a Dao. On hearing the same, he went to the place of occurrence. He put his signature in the FIR

written by P.W.6 whereafter police came. The accused-appellant was found sitting atop a bamboo plant at Rongabagan wherefrom he was arrested

by police and was taken to the Police Station. From the Police Station, the accused-appellant was brought to the place of occurrence. The accused-

appellant brought out a Dao from the granary of his house in their presence and handed over the same to the police, who seized the same vide Ext.-4

seizure list where P.W.10 had also signed. He claimed that Material Ext.-1 was the said Dao. In his cross-examination, he denied the suggestions put

to him by the defence.

P.W.11 i.e. the I.O. stated about visiting the place of occurrence, examining the witnesses and holding inquest vide Ext.-6 (under objection) on the

dead body of Ritul Borah, found lying in the premises of the Natya Mandir where the Bhaona was staged. He further stated about drawing the sketch

map of the place of occurrence (Ext.-5). He also stated about sending the dead body for Post-Mortem examination and about arresting the accused-

appellant on 15.03.2011. It was during custody the accused-appellant confessed vide his statement of disclosure (Ext.-11) recorded by him, P.W.11

deposed, about keeping the weapon used in the offence concealed in the granary of his house. On being led and shown by the accused-appellant,

P.W.11 stated to have recovered the Dao from the house of the accused-appellant by going there and seizing the same vide Ext.-4. He also exhibited

the said seized ‘Mit’ Dao vide Material Ext.-1, apart from exhibiting the charge sheet as Ext.-10. In cross-examination, he stated that he

reached the place of occurrence at about 4-40 a.m. and at the relevant time, there was electric light at the place of occurrence.

We have considered the submissions of the learned counsel for the parties and also perused the materials on record available in the case records

of Sessions Case No. 80/2011, in original.

There is no dispute to the fact that in the night intervening 14.03.2011 and 15.03.2011, a Bhaona was being performed and staged in the premises

of Hari Mandir Namghar located in Bongaon village. All the prosecution witnesses had stated that the Bhaona was being staged during that night and

the said fact was not disputed in any manner by the defence.

The prosecution witnesses, P.W.1, P.W.2, P.W.4, P.W.5, P.W.6, P.W.7, P.W.8, P.W.9 and P.W.10, have known the accused-appellant from

earlier as some of them are neighbours and all of them are his co-villagers. But the deceased was not previously known by the prosecution witnesses,

P.W.1, P.W.2, P.W.4, P.W.5 and P.W.6, prior to the date of the incident. The deceased was the son-in-law of P.W.8. The two prosecution

witnesses, P.W.7 and P.W.10, stated to have known the deceased. As most of the P.W.s hail from the same village as that of the accused-appellant

and they all know him from before, there is, admittedly, no dispute regarding the identity of the accused-appellant. Admittedly, the deceased was not

from the same village and his house was located at a distance of 6 K.m., as disclosed by P.W.8. Except P.W.8 i.e. the mother-in-law of the deceased,

none of the other P.W.s had specifically stated as to how they knew the deceased. Few of them like P.W.1, P.W.2, P.W.4, P.W.5 and P.W.6, had

stated that they had come to know about identity of the deceased only after the date of the incident. It is not borne out that any of the prosecution

witnesses had any previous enmity with the accused-appellant so as to implicate him falsely in an offence like the present one, by making allegation of

killing a person who was not known to them from any earlier date. The witnesses cannot be said to be interested witnesses and there was not even a

suggestion of the defence to the effect that the witnesses had any previous enmity to implicate the accused-appellant falsely. The fact of not knowing

the deceased from beforehand does not also go to affect the testimonies in any manner whatsoever, since he succumbed to the injuries at the very

place he sustained those. There is no reason to discredit the testimonies of these witnesses advanced to that effect.

It is established from the testimonies of the witnesses like P.W.1, P.W.2, P.W.4 and P.W.5 that the accused-appellant was present near the shop

of P.W.2 and P.W.5. P.W.1, P.W.2 and P.W.4 had categorically stated that they had seen both the accused-appellant and the deceased together in

front and/or in the vicinity of the shops of P.W.2 and P.W.5. The presence of P.W.1 and P.W.4 at the said location was due to their having food

(Pakoras and Chops) and betel nuts from the stalls of P.W.2 and P.W.5. As the Bhaona was being performed and staged going beyond the mid-night

hours the presence of these prosecution witnesses are not found to be unnatural at the place during the time which was beyond mid-night. It has been

stated by all the prosecution witnesses that at the relevant point of time a large number of people were enjoying the Bhaona.

The learned counsel for the appellant has raised a question as regards the time of the alleged incident submitting that different witnesses had

referred to different times of occurrence of the alleged incident. It is not in doubt that the incident had happened after mid-night and before sun rise. It

cannot be expected from the prosecution witnesses to tell the time of the incident which had occurred all on a sudden, with exactitude. Minor

variations or approximation as regards the time of the incident cannot be held to be of much significance in the obtaining factual matrix of the case in

hand.

Submission was also advanced that the light was insufficient for the witnesses to see exactly what had transpired between the accused-appellant

and the victim which had led to the death of the victim. From the evidence, it is established that there was light inside the shop of P.W.2 and it had

also lit up the outside. The witnesses who had seen the incident of altercation between the accused-appellant and the victim were not at a much

distance from them so as not to see and hear what had been transpiring between the two and the subsequent assault by one or the other. The light

was at least sufficient to identify the aggressor and the victim, though may not be sufficient to see exactly in which part of the body of the victim the

injuries were inflicted. There was no involvement and interference of any third person during the said altercation and assault.

The prosecution witnesses were unanimous in their versions that the accused-appellant had attacked the victim with a sharp instrument. It has

been submitted by the learned counsel for the appellant that the prosecution witnesses were not consistent as regards the alleged weapon of assault. It

was mentioned as either a dagger or a Khukuri like weapon, etc. When the light was there to see the incident of assault it may not be sufficient for the

witnesses, as has been discussed above already, to identify exactly what kind of weapon of assault was wielded by the assailant. When ocular

evidence are creditworthy and not to be discarded for any reason, not sending of the alleged weapon of offence for examination does not go to bring

any benefit to the cause of the accused-appellant.

From the discussions made above, we are of the considered view that the prosecution has been able to establish the facts that the accused-

appellant had assaulted the victim following an altercation between them. The question now is whether the act of appellant is an act of murder or an

act of culpable homicide not amounting to murder.

At this stage, it is necessary to refer to the Post Mortem Examination Report and the testimony of P.W.3. P.W.3 found blood stain on the right leg

and right shoulder of the deceased and he recorded the following :

“(i) There is present of one oval shaped penetrating wound on the medial aspect of right thigh approx 4 cm above the knee joint, which

is about 3 cm X 2 cm X 5 cm in breadth, width and length directed obliquely upward. On dissection it is found that the femur is partially

fractured at the end part of the wound.

(ii) There is one oval shaped incised wound on right shoulder which is 1 cm X ½ cm X ½ cm in breadth, width and length.

Stomach = undigested food smelling food particles present in the stomach

Small digested food particles present in small intestine.

Food matter present in the large intestine.â€​

He further stated that both the injuries were ante-mortem in nature. The extant of penetrating wound along with involvement of long bane, he opined,

had caused huge haemorrhage of the deceased which led to his death. The cause of death was due to shock and haemorrhage as a result of the

grievous injury sustained by the deceased.

From the above, it is noticed that the deceased had sustained two injuries viz. One oval shaped penetrating wound on the medial aspect of right

thigh and the other was an oval shaped incised wound on the right shoulder which was 1 c.m. X ½ c.m. in breadth, width and length. It can, thus, be

seen that none of the injuries, inflicted by the accused-appellant, were on the vital parts of the body of the deceased. In normal course, a wound in the

thigh portion of the body would not have led a person to his death provided he received immediate medical attention. The injury sustained by the

deceased on his right shoulder appeared to be a small one. Though the accused-appellant had the opportunity to inflict the injuries in the vital parts of

the body of the victim he did not do so and had chosen to target his assaults in the parts indicated above. As such, it cannot be said with certainty that

the accused-appellant had inflicted the injury with the intention to cause such bodily injury as is likely to cause death. The injuries inflicted by him had

the possibility of leading the person who sustained the injury to death which had certainly occurred in the case in hand. The prosecution witnesses also

corroborated the fact that the accused-appellant had directed his assault on those parts of the body of the victim, as reflected in the medical evidence.

It has emerged from the evidence that immediately after the assault, the services of ‘108’ ambulance service was sought to be procured but

such ambulance service could not be obtained due to refusal on the part of the said service provider. In the meantime, the victim who had been

profusely bleeding from the wounds, had succumbed to the injuries. Had he been provided medical treatment immediately the possibility of his survival

was there.

In view of the above, we are not persuaded to concur with the view reached by the learned trial Court with the effect that the act of the accused-

appellant was an act to be punished under Section 302, I.P.C. We are of the view that the act of the accused-appellant is an act of culpable homicide

not amounting to murder and the same should come under the purview of Section 304, I.P.C. Having held so, we are of the considered opinion that the

accused-appellant ought to have been convicted under Section 304, I.P.C. instead of Section 302, I.P.C. In such view of the matter, we deem it

proper to convert the impugned conviction of the accused appellant under Section 302, I.P.C. to one under Section 304, I.P.C.

In respect of awarding of sentence, the Supreme Court in the case of Gurmukh Singh vs. State of Haryana, reported (2009) 15 SCC 635 ,has laid

down certain factors in awarding appropriate sentence to the accused. Dealing with the same, it has observed as under:-

“23. These are some factors which are required to be taken into consideration before awarding appropriate sentence to the accused.

These factors are only illustrative in character and not exhaustive. Each case has to be seen from its special perspective. The relevant

factors are as under:-

a) Motive or previous enmity;

b) Whether the incident had taken place on the spur of the moment;

c) The intention/knowledge of the accused while inflicting the blow or injury:

d) Whether the death ensured instantaneously or the victim died after several days;

e) The gravity, dimension and nature of injury;

f) The age and general health condition of the accused;

g) Whether the injury was caused without pre-meditation in a sudden fight;

h) The nature and size of weapon used for inflicting the injury and the force with which the blow was inflicted;

i) The criminal background and adverse history of the accused;

j) Whether the injury inflicted was not sufficient in the ordinary course of nature to cause death but the death was because of shock;

k) Number of other criminal cases pending against the accused;

l) Incident occurred within the family members or close relations;

m) The conduct and behavior of the accused after the incident. Whether the accused had taken the injured/the deceased to the hospital

immediately to ensure that he/she gets proper medical treatment?

These are some of the factors which can be taken into consideration while granting an appropriate sentence to the accused. The list of

circumstances enumerated above is only illustrative and not exhaustive. In our considered view, proper and appropriate sentence to the accused is the

bounded obligation and duty of the Court. The endeavour of the Court must be to ensure that the accused received appropriate sentence, in other

words, sentence should be according to the gravity of the offence. These are some of the relevant factors which are required to be kept in view while

convicting and sentencing the accused.â€​

Considering the entire factual background including the age, antecedents and family and social status of the appellant and in the light of the

principle highlighted in the case of Gurmukh Singh (supra), we consider that in the facts and circumstances of the case, the interest of justice would be

served if the sentence is converted to rigorous imprisonment of 6 (six) years while maintaining the fine imposed by the learned trial Court. With the

above directions, this appeal stands partly allowed.

The concerned District Legal Service Authority shall explore the possibility of providing compensation as per the scheme prepared by the State

Government under Section 357, CrPC to the family members of the victim.

Send down the LCR along with a copy of the judgment.