Manash Boruah vs State Of Assam

AM Bujor Barua, J

Heard Mr. S. Islam, learned Amicus Curiae appearing for the appellant and Ms. B. Bhuyan, learned Additional Public Prosecutor appearing for the State of Assam. Service report of the Officer-in-Charge of Dhemaji Police Station dated 03.01.2018 shows that notice was duly served on the informant respondent No.2. But, in spite of such service, none appears for the respondent No.2.

This is an appeal against the judgment and order dated 27.06.2017 of the learned Sessions Judge, Dhemaji, passed in Sessions Case No.78(DH)/2015, whereby the accused appellant was convicted under Section 302 IPC and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.3000/- and in default of payment of fine, to undergo further rigorous imprisonment for another 03(three) months. Being aggrieved, the appellant preferred this appeal.

An ejahar dated 26.05.2015 was lodged by one Ghana Baruah before the Officer-in-Charge of Dhemaji Sadar Police Station inter-alia stating that on the night of 25.05.2015 his younger brother Bhabananda Baruah, aged about 49 years was alone at home. But on the said night, some unknown persons had assaulted him, resulting in his death inside the house itself. In the resulted investigation, the accused appellant Manash Baruah was charged of having intentionally caused the death of his father Bhabananda Baruah and thereby committed an offence under Section 302 IPC.

PW-1 Smti Matu Barua in her deposition stated that the accused Manash Baruah is the son of the deceased Bhabananda Baruah and the incident took place around 10 (ten) months back. On the day of occurrence, she heard a commotion in the house of Bhabananda Baruah at night and on the following the accused Manash Baruah informed them that Bhabananda Baruah had died. She deposed that there was no other person in the house of Bhabananda Baruah except for the accused. Accordingly, she justifies the ejahar being lodged by Ghana Baruah, wherein it was alleged that accused Manash Baruah had killed his father. The said evidence of PW-1 had not been confronted by the defence.

PW-2 Smti Amiya Barua, who is the wife of the informant in her deposition stated that the incident took place about 10(ten) months back in the year 2015. In the morning, the accused had informed them that his father had died. It was stated that there was no other person in the house of the accused Bhabananda Baruah except for the accused Manash Baruah. Accordingly, it was stated that her husband had lodged the ejahar alleging that the accused Manash Baruah had killed Bhabananda Baruah. It was also deposed that the accused and the deceased Bhabananda Baruah quarreled quite often and a quarrel had also taken place between them on the day prior to the occurrence. In cross-examination, PW-2 stated that she does not know how Bhabananda Baruah died. But when Bhabananda Baruah was alive, he used to consume liquor and cause nuisance at home because of which quarrel sometimes took place between the son and the father.

PW-3 the informant in his deposition stated that the deceased Bhabananda Baruah was his younger brother and father of the accused. He stated that the incident took place in 2015 and on the given night he heard a commotion in the house of Bhabananda Baruah and that a quarrel took place between Bhabananda Baruah and the accused. He deposed that there was no other person except the deceased and the accused Manash Baruah in the house. On the next morning, when he was informed by his wife Amiya Baruah that the deceased Bhabananda Baruah was lying dead inside his house, he went to his house and saw the deadbody of Bhabananda Baruah lying there with injuries and the accused was at home. The evidence of PW-3 had also been not confronted by the defence.

PW-4 and PW-5 have both heard about the incident but had not witnessed it and therefore, are considered to be not relevant for the purpose of this appeal.

PW-6 Dr. Debajit Doloi, who had conducted the postmortem examination on the deadbody of the deceased, in his deposition stated the following injuries to have been found in the body of the deceased:-

"1. Multiple bruise marks present over both back and chest.

Bruise marks with swelling of left arm and both wrist joints.

Swelling with a small single punctured wound present over the upper eye lid.

Abrasion present over the chest and neck.

Bruise marks present over whole body (multiple number) of different sizes in a cris cross pattern present.

Bruise marks also present on the left arm.

These are ante mortem in nature.

Single round ligature mark present around the neck, without knot mark.

Abrasion present around the neck. Mark is hard and dry, like depression around the neck. It is ante mortem in nature."

The doctor also stated that the deceased was a stout male about 6 feet tall. In the opinion of the doctor, the deceased died 'due to asphyxia followed by air obstruction' and it was ante-mortem in nature.

PW-8, who was the Executive Magistrate on the relevant day and who had conducted the inquest had found the following injuries on the deceased:-

"1. Swelling on left side of the fact.

A black spot was found below the neck."

PW-9, the investigating officer in his deposition stated that the accused was arrested on 24.05.2015 and the body of the deceased was sent for postmortem examination and thereafter based upon the evidence, the accused was charge-sheeted under Sections 448/302 IPC.

In his statement under Section 313 Cr.P.C, the accused Manash Baruah had not stated anything other than a simple denial that he does not know anything about the incident and that he had not killed the deceased.

The evidence on record as discernible from the depositions of PW-1, PW-2 and PW-3, shows that the deceased and the accused are father and son and both of them resided in the same house. Although there are evidences to show that there used to be quarrel between the two and further that the deceased was a man who was habituated to consumption of liquor and caused nuisance in the house, but the evidences also provide that the deceased and the accused both lived together in the same house and also on the day of occurrence the accused was in the same house as that of the deceased. Further, there are evidences that there was a commotion in the house of the deceased on the night which had been heard by the others, which again is an indication that some quarrel etc had taken place. The evidences also show that the accused remained in the house and had informed the others about the death of the deceased on the following morning.

In the circumstance, it is established that at the time of the death, the accused was present in the same house as that of the deceased. In the circumstance, the learned Sessions Judge, Dhemaji in its judgment dated 27.06.2017 had relied upon the pronouncements of the law by the Supreme Court in Baser Ali Khan Vs. State of Assam and others, reported in (2017) 2 GLR, Vol-2, Page-79 as well as that of the Supreme Court in Trimukh Maroti Kirkasnt Vs. State of Maharastra, reported in (2006) 10 SCC81, as well as State of Rajasthan Vs. Kashiram, AIR 2007 SC 144 and Gajanan Dashrath Kharate Vs. State of Maharashtra, reported in (2016) 4 SCC 604 to arrive at its conclusion that in the facts and circumstance of the present case, the provisions of Section 106 of the Evidence Act would be applicable against the accused appellant.

In principle, we are in agreement with the conclusion arrived at by the learned Sessions Judge, Dhemaji as regards the applicability of Section 106 of the Evidence Act requiring the accused appellant to provide an explanation as to how the death had occurred to the deceased, in a circumstance where the death had occurred in the same house, where the appellant accused was also living and was present at the time of the death.

In the circumstance, we look into the stand taken by the accused appellant in his statement under Section 313 Cr.P.C, which, as already noted other than a general denial, the accused appellant had not taken any other stand. In the absence of any explanation by the accused appellant, by following the propositions of law laid down by the Supreme Court and this Court, as indicated above, as well as following the principle under Section 106 of the Evidence Act, a presumption has to be arrived at that it is the accused appellant, who had caused the injuries to the deceased, which had resulted in his death. Having said so, we now take a look at the injuries that were found on the body of the deceased in the postmortem examination. If we look into the injuries, as indicated above, the injuries are more in the nature of bruise and abrasion present around the back, chest, neck, arms, wrist etc of the deceased person. As regards neck, we have taken note of the injury report that it does not mention about any strangulation and what is provided is that death was due to asphyxia followed by air way obstruction. Considering the injuries that were found, which are in the nature of bruise and abrasion without there being any mark of strangulation or without there being any injury on any of the vital parts and without there being any indication in the evidence that any weapon dangerous or otherwise was used in the assault, we are of the view that the conduct of the accused appellant was such that there was no intention to cause death to the deceased.

As the conduct of the accused appellant in undertaking the assault was without any intention to cause death, we are of the view that the act of the accused appellant would be outside the purview of Section 300 IPC. It being outside the purview of Section 300 IPC, the act of the accused appellant would have now to be looked into from the point of view of Section 304 IPC. Again when we have already arrived at a conclusion that there was no intention on the part of the accused appellant to cause the death, the act of the appellant would have to be accepted to be within the purview of Section 304 Part-II IPC.

Accordingly, we convict the accused appellant under Section 304 Part-II IPC and sentenced him to an imprisonment for the period of imprisonment he had already undergone and accordingly set off the period of imprisonment already undergone. The accused appellant be released forthwith provided not required for any other offence.

We are also concerned that the accused appellant was about 19 years old when the alleged occurrence had taken place and he had been in prison pursuant to the Judgment and Order dated 27.06.2017 of the learned Sessions Judge, Dhemaji. Consequent thereof, it is understood that the present age of the accused appellant would be approximately 23 years. For a person who was 19 years old when he had to undergo the conviction and sentence, it has to be understood that the person concerned was of a tender age when he was sent to prison. Now when the said person would come out of prison at the age of 23 years, at a situation where he had already lost his mother earlier and also in the incident he had lost his father, the person on being released may not have adequate social security to carry forward his life further upon being released.

In the circumstances, we feel that the accused appellant requires some kind of protection and counseling in his life so that he can return to the mainstream and be a more responsible citizen. Accordingly, we request the Assam State Legal Services Authority to provide the accused appellant with some counseling and rehabilitation services which may help him to cope up and settle in life after being released from prison. The Assam State Legal Services Authority may act within the existing Rules and provisions in providing the required services to the accused appellant.

The Legal Services Authority may guide and monitor the accused appellant for a reasonable period of time which according to the authority would be necessary to make him comfortable in the mainstream society.

The judgment and order dated 27.06.2017 of the learned Sessions Judge, Dhemaji in Sessions Case No.78(DH)/2015 stands modified to the extent indicated above.

The appeal is partly allowed.

Send back the LCR along with a copy of this judgment immediately.

Before parting with the record, we appreciate the valuable service rendered by Mr. Saidul Islam, learned Amicus Curiae. Accordingly, it is directed that an amount of Rs.7,500/-as legal fees be paid to him by the High Court Legal Service Committee upon production of a copy of this judgment and order.