Ranjit Bora vs State Of Assam And Anr

Heard Mr. A. Ahmed, learned counsel for the appellant and Ms. S. Jahan, learned Additional Public Prosecutor for the State.

The A/D card shows that the notice had duly been served on the informant/respondent No. 2, Atul Borah

An Ejahar dated 18.08.2008 was lodged by the informant Atul Borah before the Officer-in-Charge, Dergaon Police Station inter aka, stating that at around 8:30 pm on 18.08.2008, a resident of Bhakatia village namely Ranjit Borah armed with daw/khukri had entered the house of his younger brother namely Ananda Borah, who was also a resident of the same village. Then the accused Ranjit Borah injured Ananda Borah and his wife Nijumoni Borah by hacking them and thereafter, the deceased Basab Borah, was also hacked on the neck by the accused. Thereafter, the accused ran away from the place of occurrence and when he came across another youth of the same village namely Manesh Borah, the accused had also inflicted a cut injury on him. The informant Atul Borah, who examined himself as PW-1, in his deposition stated that he was informed about the incident at around 10 pm by the Police while he was sleeping.

PW-3, Dr. Neelima Phukan, who conducted the post-mortem examination found the following injuries on the deceased;

"One sharp cutting injury over the left side of the neck in oblique direction from upward to downward direction from 6m and 7 4' cervical vertebra to left side of the I Thyroodcartilage cutting of soft tissue, muscle and pleat vessels of the left side, size - 10 cm. X 7 cm. X 5 cm

According to the opinion of the doctor, the death was caused due to shock and haemorrhage and the injuries were grievous in nature.

PW-6, Ananda Bora in his deposition stated that on the given date at around 8/8:30 pm, he was at home and the deceased Basab Borah was teaching his son Biplab Jyoti Borah and he was sitting nearby and his wife Nizu Borah was also present in the room. He deposed that the accused Ranjit Borah entered the room as he had some business with him. Accused Ranjit Borah hacked on the hand of Nizu Borah and she ran to the house of her uncle Atul Borah. When the witness tried to stand up from the chair, the accused hit him on his left cheek. As he came out of the room, he saw that the accused Ranjit Borah was inflicting a cut blow on Basab Borah's neck.

In cross, suggestions were given by the defence to PW-6 that it is not a fact that the witnesses was sitting on a plastic chair and that his wife was giving tea to the accused. Suggestions were also made that Basab Borah and the witness had grabbed the accused by his chest and that the deceased/Basob Borah had tried to inflict a cut on the accused with a khukri.

PW-7, Nizu Borah, who is the wife of PW-6, in her deposition stated that the incident took place at around 8/8:30 pm and at that time, the deceased Basob Borah was teaching his son Biplop Jyoti Borah and she and her husband Ananda Borah were sitting on a chair and at that time, the accused Ranjit Borah entered the room by pushing the door open and dealt cut blows with the khukn. She also stated that the accused had brought a khukn with him. He had cut her in the palms of both hands and the thumb of her right hand got severed. She then ran towards the house of Atul Borah and fell down on the verandah, where she became unconscious. She also deposed that the accused aimed to hack on her husband on the neck but the cut blow landed on his face.

The accused Ranjit Borah, deposing himself as DW-1 stated that the deceased Basab Borah came to him and told him that he should visit PW-6 Ananda Borah's house and take the money due to him. He stated that Ananda Borah was in need of money for purchasing cattle and he borrowed an amount of Rs. 5000/- from the accused and he was called to collect back the amount which he had given. When he went to the house of PW-6 at around 7:30 pm, it was drizzling and Ananda Borah's wife Nijumoni opened the door, called him inside and asked him to be seated on a plastic chair. He further stated that an open Kerosene lamp was burning in the room where he was seated. Asking him to be seated, Nijumoni Borah went inside and offered him a cup of tea. Ananda Borah and Basab Borah were sitting by the fireplace and were talking about something. When the accused took a sip of tea offered to him, Ananda Borah and Basab Borah felled him down on the ground from the chair. When the accused tried to get up, he saw that Basab Borah was attempting to hack him with a khukn. He snatched the khukri from Basab Borah to save himself. In doing so, the open kerosene lamp got extinguished.

When he snatched the khukri from Basab the open lamp went off, and Ananda and Basab were present at that time. The accused stated the he did not know whether Ananda Borah and Basab Borah got cut when he brandished the khukri but when he had the scuffle with Basab, he sustained injuries on his legs. Thereafter, the accused stated that he came out of the house with the khukn and threw it on the road and went back home riding bicycle. After that he kept the bicycle at the gateway of his house and went to Golaghat town by foot and appeared before the Golaghat Police Station at around 7:30 pm and narrated the incident. The said piece of evidence of DW-1 is in conformity with the evidence of the investigating officer.

In the backdrop of the aforesaid evidence, Mr. A. Ahmed, learned counsel for the appellant takes a stand that inadvertently the accused may have caused the injuries on the deceased and the other injured; but the same had happened in exercising his right of private defense when the deceased Basab Borah had tried to hack the accused/appellant with a khukn, resulting in a situation where the accused had a scuffle with the deceased while trying to snatch the khukn from his hand.

The evidence rendered by the accused DW-1 appears to be in conformity with the stand of the accused of having exercised his right of private defence. Even the evidence led by the prosecution that the accused had inflicted a cut injury first on Nizu Bora and then on Ananda Bora and thereafter on the deceased Basab Bora also does not appear to be inconsistent with the evidence of DW-1, where DW-1 seeks to explain the circumstance under which the injuries may have been inflicted. The evidence of DW-1, which remains unconfronted, that the deceased had brandished a khukn and the accused was required to snatch the khukn from him in order to save himself, in our view, do constitute an act done in exercise of the right of private defence. In doing so as the open kerosene lamp which was burning in room had gone out, the further act of the accused appellant m brandishing the khukn in the dark, which may have resulted in the injuries to the deceased and others, can also be brought within the purview of the concept of exercising the right of private defence.

But again when we look at the injuries inflicted upon PW-7 Nizu Bora, PW-8 Ananda Bora as well as on the deceased, we find that the injuries caused upon Nizu Bora had resulted in a cut injury on the palm of both the hands and theright hand thumb got severed; the injuries caused upon Ananda Bora resulted in a cut injury in his left cheek; and the injury caused on deceased Basab Bora resulted in a cut injury on the back side of his neck.

Although the accused appellant may have exercised his right of private defence, but the manner in which the injuries were inflicted, in our view, the accused appellant had exceeded the nght of private defence.

Considering the fact that the accused appellant had exercised a right of private defence, although in doing so he had exceeded such right, we are of the view that the exercise of the right of private defence would be a mitigating factor in favour of the accused appellant to bring his case within the provisions of Exception 2 to Section 300 of the Indian Penal Code. Accordingly, the act of the accused appellant being within the purview of Exception 2 to Section 300 of the Indian Penal Code, it would amount to a culpable homicide not amounting to murder.

Again from the nature of the injuries inflicted on the deceased, where there is an incised injury on the back side of the neck, which is accepted to be a vital part, the act on the part of the accused appellant would come within the concept of having committed an act with the intention to cause death. In State of Madhya Pradesh Vs. Kalicharan and Others in Crl. Apo!. No. 1411/2013, the Hon'ble Supreme Court had held that the back side of the neck is considered to be a vital part and any injury caused with a sharp cutting weapon on such vital part would show the intention on the part of the accused to cause death.

In the given situation when the act of the accused appellant amounts to a culpable homicide not amounting to murder but the accused had inflicted the injuries on the deceased with the intention to cause death, the accused appellant would be guilty of having committed an offence under Section 304 part 1 of the Indian Penal Code.

Further the evidence on record also shows the accused appellant had also inflicted certain grievous injuries on the PW-7 Nizu Bora, resulting in severance of a right thumb with a sharp cutting weapon. Accordingly, the accused appellantis also convicted of having committed an offence under Section 326 of the Indian Penal Code.

Having convicted the accused appellant under Sections 304 Pt 1 and 326 of the Indian Penal Code, we sentence the accused appellant to undergo rigorous imprisonment for a period of 7 (seven) years by retaining the fine of Rs. 5000/-, in default thereof, a further rigorous imprisonment of 3 (three) months for the offence under Section 304 Pt 1 of the Indian Penal Code and further retain the sentence of rigorous imprisonment for two years as imposed by the learned Sessions Judge in the Judgment dated 20.09.2014, for the offence under Section 326 of the Indian Penal Code.

Both the sentences to run concurrently.

As provided under Section 428 of the Code of Criminal Procedure, the period of imprisonment undergone be set of against the sentence of imprisonment.

The appeal is partly allowed as indicated above.

Send back the LCR.