DISTRICT : GOLAGHAT. IN THE COURT OF THE SESSIONS JUDGE AT GOLAGHAT. Ref. :- Sessions Case No. 113/2010. G.R. Case No. 850/2008. U/S. 459/326/302 of IPC. . The State of Assam ...... Prosecution. Vs. Sri Ranjit Bora. ....... Accused. Dates of charge .... ...... 18.12.2010. Dates of evidence .... ...... 12.12.2011, 06.03.2012, 13.06.2012. 13.07.2012, 30.08.2012, 14.09.2012, 16.10.2012, 06.04.2013, 25.06.2014, 25.07.2014, Date of argument .... ...... 02.09.2014, 17.9.2014. Date of judgment and order ...... 20.09.2014. APPEARANCES :- For the prosecution ........ Mr. D.P. Jaiswal, Public Prosecutor, Golaghat. AND For the accused person ........ Mr. D.J. Borah, Advocate, Golaghat. P R E S E N T : SHRI T. LOHAR, SESSIONS JUDGE, GOLAGHAT.
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DISTRICT : GOLAGHAT.
IN THE COURT OF THE SESSIONS JUDGE AT GOLAGHAT.
Ref. :- Sessions Case No. 113/2010.
G.R. Case No. 850/2008.
U/S. 459/326/302 of IPC.
.
The State of Assam ...... Prosecution.
Vs.
Sri Ranjit Bora. ....... Accused.
Dates of charge .... ...... 18.12.2010.
Dates of evidence .... ...... 12.12.2011, 06.03.2012,
13.06.2012. 13.07.2012,
30.08.2012, 14.09.2012,
16.10.2012, 06.04.2013,
25.06.2014, 25.07.2014,
Date of argument .... ...... 02.09.2014, 17.9.2014.
Date of judgment and order ...... 20.09.2014.
APPEARANCES :-
For the prosecution ........ Mr. D.P. Jaiswal,
Public Prosecutor, Golaghat.
AND
For the accused person ........ Mr. D.J. Borah,
Advocate, Golaghat.
P R E S E N T :
SHRI T. LOHAR,
SESSIONS JUDGE,
GOLAGHAT.
2
JUDGMENT AND OORDER :
1. The Officer-in-charge Sri Biren Buragohain of Dergaon
police station received a telephonic information on 18.8.2008 at 9'20
P.M., from an unknown person informing him that a little earlier, in the
house of Sri Ananda Bora located near 'Namghar' of Bhakatia village,
Sri Bashab Bora was killed by Sri Ranjit Bora of the same village by
inflicting cut injury after causing injured to three other persons and then
said Ranjit Bora fled away. The the O/C Sri Biren Buragohain of
Dergaon police station prepared the GDE No. 468, dated 18.8.2008
(Ext-13) and informed to the Superintendent of Police, Golaghat over
telephone and then he proceeded to the place of incident on the same
night. He received the ejahar at night of about 1 A.M. (intervening night
between the date of 18.8.2008 and 19.8.2008) from Sri Atul Bora, at the
place of incident stating that on 18.8.2008, at around 8'30 P.M., accused
Sri Ranjit Bora being armed with dao/khukri, entered into the house of
Sri Ananda Bora and inflicted cut injury to said Ananda Borah and his
wife Smti. Nijumoni borah causing them grievous injuries. Thereafter,
the accused inflicted cut injury on the neck of Bashab Bora causing him
spot death. Thereafter, the accused Ranjit Bora fled away from the house
of Ananda Bora. On the way, the accused Ranjit Bora came across Sri
Manash Borah, who was also inflicted cut injury by the said accused.
2. The O/C of Dergaon police station on receipt of the written
ejahar from the informant Sri Atul Bora on 18.8.2008, registered a case
vide Dergaon P.S. Case No. 200/2008 u/s 302/326 of IPC. S.I. of police
Sri Ruhindra Nath Changmai investigated into the case and submitted
charge sheet u/s 457/302/326 of IPC against accused Ranjit Bora to face
the trial.
3. As the case is exclusively triable by the Court of Sessions,
the learned Additional Chief Judicial Magistrate , Golaghat committed
the case to the Court of Sessions. Accordingly, the case came up before
this Court for trial.
4. On appearance of the accused person and after hearing
from both the sides, the prima facie material for the offence u/s
3
459/326/302 of IPC were found against the accused person to frame the
charges. Accordingly, accused Ranjit Bora was charged u/s 459/326/302
of IPC and the contents of the charges had been read over and explained
to him to which he pleaded not guilty and claimed to be tried.
5. Prosecution adduced the evidence of 14 witnesses to prove
the case. The accused person adduced his evidence u/s 315 of Cr.P.C.
and examined one D.W. The accused person has been examined u/s 313
of Cr.P.C. The plea of the accused is one of total denial.
6. The learned defence counsel submitted the written
argument. The copy of which was furnished to the learned Public
Prosecutor, Golaghat. The learned Public Prosecutor, Golaghat has
submitted his oral argument.
7. Now, the points for determination in this case are :-
(i) “ Whether the accused person on 18.8.2008, at around
8'30 P.M., at Bhaktia gaon under Dergaon police station,
District Golaghat while committing house breaking in
the dwelling house of Sri Ananda Bora, caused
grievous hurt to said Ananda Bora and his wife Smti.
Nijumoni Bora by means of sharp cutting weapon ?
(ii) Whether the accused person on the same day, time and
place as stated above, voluntarily caused grievous hurt
to Sri Ananda Bora and his wife Smti. Nijumoni
Bora by means of a Khukri ?
(iii) Whether the accused person on the same day, time and
place as stated above, caused the death of Bashab
Bora intentionally ?”
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DISCUSSIONS, DECISION AND REASONS
THEREOF :
8. All the aforesaid three points are interrelated to each other,
therefore, all of the points are taken up together for discussions.
9. Let me discuss the evidence on record to see as to whether
the prosecution is able to prove the above points.
10. P. W.1 Sri Atul Bora has deposed in evidence that on
18.8.2008, at night of about 10 P.M., while he was sleeping in his house,
police called him to the house of his brother Ananda Bora. There he saw
the dead body of Bashab Bora lying on the court-yard of the said house.
He saw one cut injury on the neck of said Bashab Bora. He came to
know from the police that in the mean time, his younger brother Ananda
Bora and sister-in-law Nijumoni Bora (the wife of Ananda Bora) were
sent to the hospital in the state of injured condition. Police inquested
over the dead body of the deceased in front of him. Thereafter, he lodged
the ejahar. Ext-1 is the said ejahar, upon which Ext-1(1) is his signature.
Ext-2 is the inquest report, upon which Ext-2(1) is his signature. P.W.1
has further deposed that he went to Jorhat Medical College and saw cut
injury on the cheek of Ananda Bora and on the finger of Smti. Nijumoni
Bora in the hospital. He came to know from Dilip Bora that accused had
killed Bashab.
In cross examination, P.W.1 has stated that there was no
any person except the police when he put his signature vide Ext-1(1) on
the ejahar Ext-1. He could not say what has been written in the ejahar.
He came to know about the incident from neighbour Dilip Bora on the
next day of the occurrence. Now Dilip Bora has left for some other
place.
11. P.W. 2 Sri Diganta Bora has deposed in evidence that after
10/15 days from the date of death of Bashab Bora, he went to the house
of accused person at forenoon on seeing the police personnel there.
Police seized some clothes from there under Ext-3 the seizure list, upon
which Ext-3(1) is his signature. At that time, the accused person and the
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villagers were present there. Thereafter, this witness has been declared
as hostile as he resiled from his previous statement as recorded u/s 161
of Cr.P.C.
12. P.W. 3 Dr. Neelima Phukan has deposed in evidence that on
19.8.2008, as per police requisition, she conducted the autopsy on the
dead body of deceased Bashab Bora, aged about 32 years at Kushal
Konwar Civil Hospital, Golaghat on being escorted by constable/245
Rajib Bora and relative of the deceased Sri Dilip Bora and found the
following -
Dead body of an adult male of 32 years of age, Wheaties
complexion, blood stain present over the chest and arm.
Rigor mortis present.
On examination, she found one sharp cutting injury over
the left side of the neck in oblique direction from upward to
downward direction from 6th and 7th cervical vertebrae to
left side of the Thirod cartilages cutting of soft tissues,
muscles and pleat vassals of the left side, size – 10 Cm. X
7Cm. X 5 Cm.
Other organs were found healthy.
The injury is ante mortem in nature.
The injury is grievous in nature and within 48 hours.
After examination, the Doctor, P.W.3 has opined that the
cause of death of the deceased was due to shock and haemorrhage as a
result of injury sustained by the deceased. Ext-4 is the post mortem
examination report, upon which Ext-4(1) is her signature. Ext-4(2) is
the signature of Dr. Ajit Kr. Sarmah, the Superintendent of Kushal
Konwar Civil Hospital, Golaghat and Ext-4(3) is the signature of Dr.
Mohen Baruah, the Joint Director of Health Services, Golaghat which
she knew their signatures.
13. P.W.4 Sri Sanjib Bora has deposed in evidence that the
occurrence took place at around one year ago. He came to know from
the neighbours that Bashab Bora died in the occurrence. One day,
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police came in the house of accused Ranjit Bora. Police seized one
khukri and a stick from the house of the accused person under the
seizure list vide Ext-3, upon which Ext-3(2) is his signature.
In cross examination, P.W.4 has stated that he did not see
anything of the seized article in the Court while recording his statement.
14. P.W.5 Dr. Bipul Bora has deposed in evidence that on
18.8.2008, while he was working at Dergaon CHC as Medical & Health
Officer-1, on that day, at around 10'30 P.M., he examined Sri Ananda
Bora vide EOPD No. 1446 on being escorted by HG Ranjit Gogoi of
Dergaon police station and found -
One incised wound over the left side of cheek extending
from mandibular angle to ramus , size – 8Cm X '5Cm.
Stitched and referred to Jorhat Civil Hospital for further
treatment.
On the same day and same time, he examined Smt
iNijumoni Bora, wife of Sri Ananda Bora vide EOPD No. 1447,
escorted by HG Ranjit Gogoi of Dergaon police station and found -
(i) Amputation on right thumb.
(ii)Amputation of the left ring finger.
(iii)Incised wound of right middle ring finger.
He referred the injured to Jorhat Civil Hospital for needful.
Ext-5 is the injury report, upon which Ext-5(1) is the signature of Dr.
B.C. Hazarika, the then Deputy Superintendent of Dergaon CHC, which
he knew his signature.
15. P.W.6 Sri Ananda Bora has deposed in evidence that the
occurrence took place about 4 years ago, one night, at around 8'30 P.M.,
while he was in his house. At that time, Bashab Bora was tutoring his
son Sri Biplabjyoti Bora. He (P.W.6) was sitting besides him along with
his wife Smti. Niju Bora. His son Biplabjyoti Bora was showing the
mark-sheet to his mother Niju Bora. At that time, accused Ranjit Bora
entered into said room with a dao in his hand. At first, accused Ranjit
Bora inflicted cut injury on the hand of his wife Niju Bora. Then his
wife Niju Bora came out from the house and rushed to the nearby house
7
of her uncle Atul Bora (P.W.1). When he (P.W.6) about to stand-up from
the chair, the accused Ranjit inflicted cut injury on his left cheek. When
he was trying to come out from the room, he saw accused Ranjit Bora
inflicting cut injury on the neck of Bashab Bora. Seeing this incident, his
son Biplabjyoti Bora fled away from there. Then accused Ranjit Bora
left the place. P.W.6 along with his wife P.W.7 were brought to Dergaon
Govt. Hospital for treatment. He undertook medical treatment at hospital
as indoor patient for more than one month. Bashab Bora died when
P.W.6 was in the house of his brother P.W.1. His statement has been
recorded by the Court u/s 164 of Cr.P.C. Ext-6(A) is the said statement
recorded u/s 164 of Cr.P.C.
In cross examination, P.W.6 has stated that he had no
previous grudge against the accused person. Both he and the accused
were working as mason for about 8 years prior to the occurrence. At the
time of occurrence, there was no electric light. At the time of
occurrence, a lamp was burning in the room which was made of
medicine bottle. The house of the elder brother of Niju Bora is situated
nearby.
16. P.W.7 Smti. Niju Bora has deposed in evidence that the
occurrence took place at about 4 years ago, one night, at around 8/8'30
P.M. in her house. At that time, Bashab Bora (since deceased) was
tutoring her son Biplabjyoti Bora, who was then studying at Class II and
at that time, her son was showing the mark-sheet of his half yearly
examination to said Bashab Bora. Her husband Ananda Bora (P.W.6)
was sitting on the nearby chair and her two years old baby was in the lap
of her husband. In the mean time, accused Ranjit Bora entered into the
room with a 'khukri' in his hand by pushing the door of the room and
inflicted cut injury on her both palms. One portion of her right thumb
has been severed . Then she shouted “dada”, “dada” and rushed towards
the house of Atul Bora(P.W.1) and fell down there in the varandah.
Atul Bora (P.W.1) is her uncle. She became senseless. She was brought
to Dhemaji hospital along with her husband with the help of police. But
bleeding from injury could not stop and therefore, she was sent to Jorhat
8
Civil Hospital for treatment, wherein, she was admitted there and
undertook medical treatment for the period of one and half months as
indoor patient. P.W.7 has further deposed that when she rushed to the
house of Atul Bora, her husband was followed her and her husband also
fell in the house of Atul Bora. Her husband (P.W.6) sustained injury on
his mouth. When she was lying in injured condition, then she came to
know from one Bhoben that Bashab Bora was inflicted cut injury by
accused Ranjit Bora causing him spot death. When she was running
from her house, at that time, accused Ranjit Bora, Bashab Bora (since
deceased) and her husband along with her two children were remaining
in her house. She gave statement before the court. She could put her
signature. But on that day, as her right thumb was cut and bandaged,
therefore, she put her left thumb impression on her statement recorded
u/s 164 of Cr.P.C. Her right thumb has been invalid due to the injury
sustained by her. P.W.7 has further stated that one portion of her left
hand's ring finger has been severed in the incident.
In cross examination, P.W.7 has stated that there was no
previous grudge against the accused Ranjit Bora. Therefore, she could
not say as to why the accused entered into her room and inflicted cut
injury to her. At the time of occurrence, a lamp was burning and that
lamp was burning till the morning. P.W.7 further stated in her cross
examination that while the accused entered into her room, he hide his
'khukri' on his back side and gave blow to her and in order to prevent the
said blow, she raised her hands. After receiving the 'khukri' blow, she
rushed to the house of her uncle Atul Bora (P.W.1) and fell on the
varandah of his house. Then her husband arrived there.
17. P.W.8 Sri Manash Bora has deposed in evidence that about
4/5 years ago, one night of about 8/9 P.M., when he was returning home
with Bolin Kalita by riding bicycle along the way, when Bolin Kalita
halted his bicycle to answer the call of nature, he also halted his bicycle
on receiving a telephonic call. At that time, accused Ranjit Bora was
coming from the opposite side by riding bicycle and when accused
Ranjit Bora reached near him, he called him by uttering his name , then
9
the accused Ranjit Bora gave blow on his right ear with a sharp weapon.
Then he (P.W.8) ran away from there leaving behind his bicycle.
Thereafter, the neighbours arrived there. One Nanda Hazarika took him
to his house. He (P.W.8) became senseless and he undertook medical
treatment at Jorhat Civil Hospital. Later on, he came to know that the
accused after attacked Bashab Bora and then he inflicted cut injury to
him.
P.W.8 has been thoroughly cross examined by the learned
defence counsel, but nothing has been elicited from him which belied
his testimony.
18. P.W. 9 Sri Nanda Hazarika has deposed in evidence that
deceased Bashab Bora was killed by somebody four years ago and later
on, on the same day of incident, he came to know that accused Ranjit
Bora had killed Bashab Bora. He (P.W.9) found the dead body of Bashab
Bora in the court-yard of the house belonged to P.W.7 Smti. Niju Bora.
P.W.9 has further deposed that he saw his neighbour P.W.8 Manash
Bora in a state of injured condition near his house. He bandaged the
injury sustained by P.W.8 Manash Bora after bringing him to his house.
He could not say who had caused injury to Manash Bora (P.W.8) . P.W.9
has been declared as hostile witness.
P.W.9 has stated in cross examination by the defence that
P.W.8 Manash Bora did not state to him who had cause injury to him,but
he supported the fact that P.W.3 Manash Bora sustained injury. He is not
the eye witness to the incident that took place inside the house of
Ananda Bora (P.W.6).
19. P.W.10 Sri Ratul Bora has deposed in evidence that about
3/ 4 years ago, one night, while Bashab Bora was tutoring a boy in the
house of some one, he died there and police seized the bicycle from the
house of accused Ranjit Bora which was brought out by his nephew
Diganta Bora. Ext-6 is the seizure list, upon which Ext-6(1) is his
signature.
20. P.W. 11 Sri Ranjit Bora has deposed in evidence that about
3/ 4 years ago, when he returned home on the next day of the
10
occurrence, he came to know that accused had killed some one at
Cherekichuk of Bhakatia gaon. After 4 days of the occurrence, when he
returned from his cultivation field, he saw the gathering in the house of
accused Ranjit Bora. Then he went there on believing of happening of
some incident like earlier. The police personnel along with the police
van were there in the midst of the gathering. The accused Ranjit Bora
was sitting inside the police van. Police seized the bicycle which was
used by the accused Ranjit Bora at the time of incident. Ext-6 is the
seizure list, upon which Ext-6(2) is his signature.
21. P.W.12 Sri Biren Borgohain, S.I. of police has deposed in
evidence that on 18.8.2008, while he was working as Officer-in-charge
at Dergaon police station, on that day, at night of about 9'20 P.M., he
was informed by some unknown person from Bhakatia gaon over
telephone that in the house of Ananda Bora located near Namghar of
Bhakatia gaon, Sri Bashab Bora was killed by Sri Ranjit Bora of the
same village by inflicting cut injury after causing injured to three other
persons. Then he prepared the GDE No.468, dated 18.8.2008 and
informed the matter to the Superintendent of Police, Golaghat and
proceeded to the place of incident. It was 9'30 P.M., when he proceeded
to the place of incident. Near a gate, he saw Manash Bora of Bhakatia
gaon sustained bleeding injury on his head. Seeing his serious condition,
the P.W.12 Biren Borgohain sent him to Golaghat Civil Hospital on
police requisition. Then he went to Bhakatia gaon and saw gathering in
the house of Ananda Bora. Thereafter, he came to know that one youth
had killed Bashab Bora and caused grievous injuries to two persons. He
(P.W.12) rushed to the house of P.W.1 Atul Bora, wherein said two
injured persons were lying. He saw injured Ananda Bora and Smti. Niju
Bora there. Then he sent them to Dergaon CHC on police requisition.
He drew up the sketch map of the place of incident and found the dead
body of Bashab Bora on the varandah of the house of Ananda
Bora().W.7). Thereafter, he prepared the inquest over the dead body of
the deceased, examined the witnesses. P.W.1, Atul Bora handed over the
ejahar to him at the place of incident. Then he registered the case vide
11
Dergaon P.S. Case No. 200/2008 u/s 302/326 of IPC and he himself took
the case for investigation, sent the dead body to Golaghat Civil Hospital
for post mortem examination. Thereafter, he went to the house of the
accused Ranjit Bora, but did not find him there. On 20.8.2008, he
received a telephonic call from Golaghat police station at 9'20 A.M. that
accused Ranjit Bora had surrendered in the police station on the last
night at around 9/10 P.M. Then he interrogated the accused person and
sent him to the hospital for medical check up. He (P.W.12) was led by
the accused person to his house on 21.8.2008 at 8'30 P.M. and the
accused pointed out the 'khukri' by means of which he caused the
incident. Then he seized the said 'khukri. On 22.9.2008, injured Ananda
Bora and Smti. Niju Bora appeared before the police station. He sent
them to the court for recording their statements u/s 164 of Cr.P.C. On
6.11.2008, injured Manash Bora after recovery from his injury, appeared
before the police station. On 21.8.2009, he received the post mortem
examination report of the deceased Bashab Bora @ Rantu Bora. He
received the ejahar Ext-1 on 19.8.2008 at night of about 1 A.M. in the
place of occurrence. Ext-1 is the ejahar, upon which Ext-1(2) is his
signature with remarks. Ext-7 is the printed FIR form filled up by him,
upon which Ext-7(1) and Ext-7(2) are his signatures. Ext-2 is the
inquest report upon which Ext-2(2) is his signature. Ext-3 is the seizure
list seizing of 'khukri' (the weapon of offence), upon which Ext-3(4) is
his signature. Ext-3(5) is the signature of accused Ranjit Bora. M. Exts-
1, 2 and 3 respectively are the 'khukri', long pant and half shirt. Ext-3(6)
is his signature and Ext-3(7) is the signature of accused Ranjit Bora.
Ext-6 is the seizure list seizing of green colour full chain cover having
carrier on the back side of one bicycle as pointed out by the accused
person. Ext-6(3) is his signature and Ext-6(4) is the signature of accused
Ranjit Borah. M. Ext-4 is the said bicycle. Ext-8 is the dead body
forwarding challan, upon which Ext-8(1) is his signature. Ext-9 is the
sketch map of the place of occurrence, upon which Ext-9(1) is his
signature. Ext-10 is the accused forwarding letter, upon which Ext-10(1)
is his signature. On 21.8/2008, he (P.W.12) seized articles along with the
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seizure list to the Court for seeing. Ext-11 is the prayer for seeing the
seizure list and the exhibits upon which Ext-11(1) is his signature. He
had confirmed the statement as given by the hostile witness P..2 Diganta
Bora u/s 161 of Cr.P.C. by stating in the following way :-
“ He saw when accused Ranjit Bora along with police
arrived in front of a jungle and accused person brought out
one 'khukri', a pair of long pant and shirt and one shirt
stained with mud from the jungle and handed over to the
police. He heard when accused Ranjit Bora stated to the
police that on 18.8.2008, he killed Bashab Bora by
inflicting cut injury.”
P.W.9 Nanda Hazarika has been declared as hostile witness
as he resiled from his previous statement as recorded u/s 161 of Cr.P.C.
The prosecution has confirmed that his statement as recorded u/s 161 of
Cr.P.C. by P.W.12. The I.O., P.W.12 has stated that P.W.9 Nanda
Hazarika has deposed before him in the following way -
“Nanda Hazarika (P.W.9) has stated before him that when
the accused Ranjit Bora was proceeding ahead, police
followed him. Accused Ranjit Bora brought out one
'khukri', one blue colour long pant, and one brown colour
rolling shirt from the jungle situated in front of his house.
He accompanied him and he saw when accused Ranjit
Bora brought out said articles.”
In cross examination,P.W.12 has denied the suggestion put
by the defence that he did not receive the ejahar Ext-1 in the place of
incident. He has admitted that he reached the place of incident at night
of about 10 P.M. and interrogated the witnesses Ananda Bora, Atul
Bora, Bhoben Bora, Dilip Bora and Bijoya Bora. At night of about 11'40
P.M., he prepared the inquest over the dead body of the deceased
on the basis o the GDE prepared by him after receiving the telephonic
information on the same night at around 9'20 P.M. He did not enquire
13
who had given him the telephonic information. In Ext-7, the Printed FIR
form, he (P.W.12) recorded of receiving of the ejahar on 19.8.2008 at
around 3 A.M. During the course of investigation, on the same night of
the occurrence, he received the ejahar in the place of incident and the
police had treated the said ejahar as FIR in this case. There is no chance
of fabricating the FIR. It is true that the certified copy of the General
Diary Entry has not been shown to him by the prosecution.
22. P.W.13 S.I. of police Sri Ruhindra Nath Changmai has
deposed in evidence that the earlier Investigating Officer (P.W.12)
investigated into this case vide Dergaon P.S. Case No. 200/08 u/s
302/326 of IPC. Only the injury report is remained to be collected. He
collected the injury report and after perusal of the case diary in the
instant case, he satisfied that the investigation has already been
completed. He found the materials for the offence u/s 457/302/326 of
IPC against accused Ranjit Bora and accordingly, he submitted the
charge sheet under the said sections against the accused persons. Ext-12
is the charge sheet, upon which Ext-12(1) is his signature
In cross examination, P.W.13 has stated that he did not
record in the case diary from where he collected the injury report of the
injured persons.
23. P.W.14 Sri Bhupen Kalita, S.I. of police of Dergaon police
station has deposed in evidence that at present he is working at Dergaon
police station as S.I. of police. He submitted the extract copy of th
Dergaon P.S. GDE No.468, dated 18.8.2008. Ext-13 is the said extract
copy of the said GDE No. 468, dated 18.8.2008. Ext-13(1) is his
signature. According to the said GDE No. 468, dated 18.8.2008, at 9'20
P.M., the O/C of Dergaon police station received a telephonic
information that a little earlier in the house of Sri Ananda Bora, located
near 'Namghar' (prayer house) of Bhakatia gaon Sri Bashab Bora was
killed by accused Ranjit Bora of the same village after causing injured to
three other persons and then the accused fled away. After preparing the
GDE No. 468, dated 18.8.2008, the information has been given to the
Superintendent of Police, Golaghat over telephone and then O/C Sri
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Biren Borgohain of Dergaon police station accompanied with other
police personnel, namely – Rajib Baruah, Deba Saikia and constable
Sanjib gogoi proceeded to the place of incident.
In cross examination, P.W.14 has denied the suggestion that
Ext-13 is not the copy of original GDE No. 468, dated 18.8.2008.
24. D.W. 1 Sri Ranjit Bora adduced his evidence u/s 315 of
Cr.P.C. as defence witness. According to his evidence, on 18.8.2008, at
9'30 A.M., he was working as mason in the house of Sri Biren Sarmah
located at Habungia village of Dergaon. He was constructing an Assam
Type house for said Biren Sarmah. At that time, Biren Sarmah was
inspecting his work. Bashab Bora of Bhakatia gaon came to him and
told him that while returning home, enter into the house of Ananda Bora
for taking money which he owed to him. Anada Bora was working with
him as helper of mason for last 8 yeas. He borrowed the amount of
Rs.5,000/- from accused Ranjit Bora for purchasing a bullock.
Therefore, Ananda Bora called him to take the said money. In the
evening after finishing the work, D.W.1 while returning home by riding
his bicycle. On the way, he reached the gateway of the house of Ananda
Bora at around 7'30 P.M. At that time, it was drizzling. He (D.W.1)
called Ananda Bora from outside. Then Niju Bora, the wife of Ananda
Bora opened the door and offered him a plastic chair for sitting. At that
time, a kerosene lamp was burning inside the room where he was sitting.
Nijumoni Bora after offering him to sit, proceeded inside the house. At
that time, Ananda Bora and Bashab Bora were talking between
themselves by sitting near the furnace. Nijumoni Bora offered him a
cup of tea. While he was sipping tea, then Ananda Bora and Bashab
Bora fell him down from the chair from his back side. While he tried to
stand-up, then he saw Bashab Bora intended to inflict him injury by a
'khukri'. Then he in order to escape himself, snatched away the 'khukri'
from Bashab Bora and for saving himself, he waved the said 'khukri' in
the air. In the mean time, the said burning kerosene lamp was
extinguished. D.W.1 further deposed in his evidence that the burning
lamp was extinguished after snatching away the 'khukri' from Bashab
15
Bora. When he waved the 'khukri' in the air, either Anada Bora or
Bashab Bora sustained cut injury on their person. D.W.1 has further
stated that he also sustained injury on both of his leg while snatching
away the 'khukri' from the hands of Bashab Bora. He has further stated
that he has no previous grudge against Bashab Bora and Ananda Bora.
Thereafter, he came out from the room with the said 'khukri' and threw
the said 'khukri' by the side of the road and proceeded to his house by
riding on his bicycle. After keeping the said bicycle near the gate of his
house, he proceeded to Golaghat town on foot and arrived at Golaghat
police station on the next day at 7 or 7'30 A.M. Thereafter, he narrated
the incident to the police station. Police from Dergaon police station
came to Golaghat police station on the next day and took him to
Dergaon police station. He has further stated that while he was
proceeding to his house by riding bicycle from the house of Ananda
Bora, he did not came across any person on the way. He has further
deposed that he is not responsible for the injury sustained by Ananda
Bora and Bashab Bora. D.W.1 has also stated that had he not been
snatched the 'khukri' from the hands of Bashab Bora and waved in the
air, then Bashab Bora would kill him.
In cross examination by the prosecution, D.W.1 has stated
that he could not say how Nijumoni Bora sustained injury. He has
further stated that he could not say as to whether the deceased Bashab
Bora used to do tuition to the son of Ananda Bora or not. D.W.1 further
stated that he was produced before the Court on 21.8.2008. But he did
not stated before the Court regarding sustaining of injury on his legs.
Police after arresting him, produced him to the hospital for medical
check up. But he did not state to the Doctor regarding sustaining of
injury by him. He after commission of the offence, kept his bicycle in
front of the gate of his house and without giving any information to his
family members, he proceeded to Golaghat on foot. On the way, he
found Dhekial police Out Post. But he did not go there. After the
incident, he proceeded to Golaghat on foot and reached Golaghat on the
next morning. He wondered at Golaghat town for the whole day on
16
19.8.2008, but he did not go to the Doctor for the treatment of his
injury sustained by him on his legs. In examination in chief, D.W.1
Ranjit Bora has stated that he sustained injury on both of his legs while
snatching the 'khukri' from the hands of Bashab Bora.
25. Had he (D.W.1) got injury on his leg, then he would have
taken treatment from the Doctor. But he did not do so. It is also found
from the evidence of D.W.1 that after the incident, he proceeded to
Golaghat town on foot covering a long distance. If he actually sustained
injury on his leg, he could not move to Golaghat on foot. Therefore, the
plea of the accused person (D.W.1) that he sustained injury on both of
his legs while snatching the 'khukri' from the hands of Bashab Bora is
appears to be not believable. The plea of the accused is that Ananda
Bora and Bashab Bora intended to kill him by giving 'khukri' blow.
Therefore, he snatched away the 'khukri' from the hands of Bashab Bora
and waved the said 'khukri' in the air in order to save himself from
Bashab Bora and Ananda Bora.
26. D.W.2 Sri Biren Sarmah in whose house, the accused Ranjit
Bora (D.W.1) was working on the relevant date has deposed in evidence
that one day, during the month of August, 2008, while accused Ranjit
Bora (D.W.1) was working with three other labourers in his house, the
deceased Bashab Bora arrived there at around 10 A.M. and told the
accused that he would pay the money to him which he owed to him in
the house of Ananda Bora (P.W.6). The accused Ranjit Bora went there
after finishing his work on that day.
In cross examination, D.W.2 has admitted that Bashab Bora
owed money to the accused person. But according to the D.W.1 (accused
person), injured P.W.6 Ananda Bora owed money to him and not the
deceased Bashab Bora. Injured P.W.6 Ananda Bora is not known to him
(D.W.2).
27. Under such circumstances, the fact of appearance of
deceased Bashab Bora in the house of D.W.2 Biren Sarmah and told
D.W.1 Ranjit Bora that he would repay the money in the house of P.W.6
Ananda Bora which he owed to him and asked him to visit the house of
17
P.W.6 Ananda Bora after his work are appear to be not believable,
because according to the D.W.1, Ananda Bora (P.W.6) owed money of
Rs.5,000/- to the accused person. But according to the D.W.2, the
deceased owed money to the accused person.
28. From the evidence of the accused person (D.W.1), it is
found that he went to the house of P.W.6 Ananda Bora to receive
Rs.5,000/- which P.W.6 owed to him and P.W.7 Nijumoni Bora who is
another injured and wife of P.W.6 Ananda Bora opened the door of the
house and offered a plastic chair to him (D.W.1) for sitting and then
offered him a cup of tea. P.W.6 Ananda Bora and deceased Bashab Bora
who were at that time, gossiping between themselves by sitting near the
furnace and then both P.W.6 and deceased Bashab Bora fell D.W. 1
(accused) upon the ground from the chair from back side and then
deceased Bashab Bora intended to inflict cut injury to him by a 'khukri'
and when the accused tried to stand-up, then the accused snatched the
'khukri' from him and in that process accused sustained injury on both of
his legs and waved the 'khukri' in the air. Therefore, he (D.W.1) could
not say as to whether P.W.6 Ananda Bora or deceased Bashab Bora
sustained injury or not. But he did not state anything regarding the injury
sustained by P.W.7 Nijumoni Bora, the wife of P.W.6 Ananda Bora. It is
not proved that the accused person sustained injury on both of his legs.
During the cross examination of injured P.W.7 Nijumoni Bora, the wife
of injured P.W.6 Ananda Bora, the learned defence counsel elicited from
her that a kerosene lamp was burning in the room and it was kept
burning till the morning. The defence gave suggestion to her (P.W.7) that
the lamp was extinguished during the scuffling with the deceased
Bashab Bora and P.W. 6 Ananda Bora by the accused person to which
P.W.7 denied the said suggestion. There is no preponderance of
probability that accused had sustained injury while scuffling with P.W.6
and the deceased Bashab Bora for snatching the 'khukri'. After the
incident, the accused walked a long distance for the whole night to reach
Golaghat town. He reached Golaghat town in the next morning.
Therefore, the plea of the accused is that he sustained injury on both of
18
his legs while scuffling with P.W.6 and deceased Bashab Bora is appears
to be false one. Had he been sustained injury on both of his legs, he
could not cover a long distance to reach Golaghat town from the place of
incident. Therefore, it is inferred that there was no scuffling between the
accused from one sideand injured P.W.6 Ananda Bora and deceased
Bashab Bora on the other side.
29. P.W.7 Nijumoni Bora has stated in examination in chief that
the accused person armed with 'khukri', entered into her house after
pushing the door of the house. During cross examination, P.W.7 has
stated that the accused entered into her house with a 'khukri' in his hand
hiding on the back side and gave blow to her by the said 'khukri' and
then she raised her hand in order to save herself from the said 'khukri'
blow and in the result, the blow fell upon her hand and she sustained
injury. This fact has not been challenged by the defence during cross
examination of P.W.7 nor in the evidence of the accused person recorded
u/s 315 of Cr.P.C. The defence simply suggested to P.W.7 Nijumoni
Bora that the accused did not give 'khukri' blow to her which she denied.
The defence did not challenge the fact of entering into the house of
P.W.7 by the accused person with a 'khukri' in his hand. P.W.7 has stated
in cross examination that she did not offer chair to the accused person
nor she opened the door of the house for the accused person. It is proved
that the accused Ranjit Bora carrying a 'khukri' in his hand, entered into
the house of P.W.7 after pushing the door.
30. When we perused the cross examination of P.W.6 Ananda
Bora, we find that P.W.6 has good relation with the accused person
about 8 years back prior to the incident and prior to the occurrence, he
(P.W.6) took Rs.5,000/- from the accused person. At the time of
occurrence, a lamp made of medicine bottle was burning in the room
(place of occurrence). When we perused the evidence of P.W.6, we find
that the accused person entered into the room and inflicted cut injury on
his wife Nijumoni Bora (P.W.7) and his wife Nijumoni Bora came out
from the room after receiving the said injury. When P.W.6 wanted to
stand from the chair, the accused gave blow on his left cheek and then
19
the accused gave blow on the neck of Bashab Bora. In cross examination
P.W.6 has stated that he could not raise hue and cry due to receiving
blow on his mouth. His wife Nijumno Bora (P.W.7) raised hue and cry.
The accused did not challenge the fact of inflicting injury to P.W.6 and
P.W.7 in the cross examination.
31. Now for the argument shake, if we accept the version of the
accused person that the deceased intended to give 'khukri' blow to him
after he was fallen upon the ground from the plastic chair by P.W.6
Ananda Bora and the deceased Bashab Bora and he (accused) snatched
the 'khukri' from the hands of deceased Bashab Bora as the deceased
Bashab Bora intended to give 'khukri' blow to him, there was no
occasion for the accused person that he had apprehension that the death
or grievous hurt or wrongfully confining him will otherwise be
consequence of assault from the deceased, because the accused had
already snatched away the 'khukri' from the hands of the deceased
Bashab Bora. The accused person has further stated that he waved the
'khukri' in the air in the darkness and therefore, he could not say who
had sustained injury in that process. D.W.1 did not state anything about
the presence or absence of the P.W.7 during scuffling with P.W.6 and the
deceased.
32. In the instant case, I find that P.W.6 sustained cut injury on
his left cheek ; P.W.7 sustained injury on her both hands and deceased
Bashab Bora sustained injury on his neck. Bashab Bora died on the spot.
The injury sustained by P.W.6 and P.W.7 are not accidental injury and
death of deceased Bashab Bora is not the accidental death. When the
accused waved the 'khukri' in the air, P.W.7 Nijumoni Bora was not
present there. It is not known to the accused person how P.W.7 sustained
injury. It is found that the P.W.7 sustained amputation at right thumb and
little ring finger and incised wound of the right middle finger in the said
incident.
33. In course of argument, the learned counsel for the accused
person has cited a case law decided by the Hon'ble Gauhati High Court
in the case of – Jamshed Ali & others -Vs- State of Assam, reported in
20
(2013) 4 NEJ 37 (Gau.), wherein, the Hon'ble Gauhati High Court has
observed in the following way -
“ If a person has a right of private defence of body under
Section 97, the right extend under Section 100 to causing
death if there is reasonable apprehension that death or
grievous hurt would be consequence of the assault. It is
true that the burden on an accused person to establish the
plea of self defence is not as onerous as the one which lies
on the prosecution and that while the prosecution is
requires to prove its case beyond reasonable doubt, the
accused need not establish the plea to the hilt and may
discharge his onus by establishing a mere preponderance
of probability either by lying basis for that plea in the cross
examination of prosecution witnesses or by adducing
defence evidence .”
34. In the instant case, I find that the accused snatched the
'khukri' from the hands of Bashab Bora. There was no other weapon in
the hands of Bashab Bora or in the hands of P.W.6 Ananda Bora. The
accused did not state that the P.W.7 was present at that moment.
Therefore, there was no reasonable apprehension of death or grievous
hurt would be consequence of the assault in the minds of the accused
person. He exceeded the right of private defence by giving blow to
P.W.6 Ananda Bora on his right cheek and on the neck of Bashab Bora
causing him spot death. Prior to that he gave blow to P.W.7 Smti.
Nijumoni Bora, the wife of P.W.6 Ananda Bora. She (P.W.7) raised her
hand in order to escape from the said blow. The blow fell upon her hand
causing amputation on her right thumb, left ring finger and incised
wound of right middle ring finger. It is found, at first the accused gave
blow to the P.W.7 with a 'khukri' and the P.W.7 fled away from the room
after receiving the blow.
35. To claim the right of private defence extending to
voluntarily causing of death, the accused must show that there were
21
circumstances giving rise to reasonable ground for apprehending that
either death or grievous hurt would be caused to him. In this case, the
accused person has failed to do so. Therefore, there is no question of
exercise of private defence as claimed by the accused person
considering circumstances of this case.
36. From the aforesaid evidence, it is found that P.W.6 Ananda
Borah and P.W.7 Smti. Nijumoni Bora are husband and wife. P.W.6 has
good relation with the accused person from about 8 years back prior to
the occurrence. P.W.6 Ananda Bora was working together with the
accused Ranjit Bora as mason. P.W.6 and P.W.7 have no enmity against
the accused person. The statements of P.W.6 and P.W.7 had recorded u/s
164 of Cr.P.C. during investigation stage by the learned Court. The
learned defence counsel Mr. D.J. Borah has submitted that their
statements have not been proved by examining the Magistrate, who
recorded their statements.
37. The statements of P.W.6 Ananda Bora and P.W.7 Niju Bora
as recorded u/s 164 of Cr.P.C. during investigation stage are not to be
used as substantial evidence. These statements can be used only for
contradiction. The learned defence counsel could not point out any
contradiction between the testimony of P.W.6 and P.W.7 with reference
to their previous statements as recorded u/s 164 of Cr.P.C. by the learned
Magistrate. When we read together the evidence of P.W.6 and P.W.7, we
find that at the time of incident, at around 8/8'30 P.M., both of them
were present in their house and Bashab Bora (since deceased) was
tutoring their son Sri Biplabjyoti Bora who was then student of Class-II.
P.W.6 Ananda Bora was sitting on the chair with his two years old baby
in his lap. All these facts have not been challenged during cross
examination of P.W. 6 and P.W. 7 by the defence. At that time, a
kerosene oil lamp made of medicine bottle was burning in the room and
the said lamp was burning till the morning. Suddenly, accused Ranjit
Bora entered into the said room by pushing the door and at first, he gave
blow to P.W. 7 Niju Bora with a 'khukri' brought by him and then P.W.7
Niju Bora after receiving the said blow rushed to the house of her uncle
22
Atul Bora (P.W.1) shouting “dada”, “dada” and she became senseless
when she reached the house of Atul Borah. P.W.7, Niju Bora did not see
the incident of inflicting cut injury to her husband Ananda Bora (P.W.6)
and Bashab Bora (since deceased). The evidence of P.W.7 Niju Bora has
not been contradicted during her lengthy cross examination. P.W.7
sustained injury on the both palms of her hands and her right thumb and
left ring finger had amputated. P.W.5 Dr. Bipul Baruah on the same day,
i.e. on 18.8.2008, at around 10'30 P.M., examined Smti. Nijumoni Borah
at Dergaon CHC and found amputation of her right thumb, amputation
of left ring finger and incised wound of right middle finger. The defence
did not challenge the aforesaid findings of P.W.5 during his cross
examination. The Doctor, P..5 did not give opinion regarding the nature
of injury. But it is proved that the injuries as sustained by P.W.7 Niju
Borah were caused by sharp cutting weapon and this is a clear case u/s
326 of IPC as the Doctor (P.W.5) found amputation on her right thumb
and left ring finger. The P.W.7 has stated in her evidence that one portion
of her right thumb has been severed in the result of 'khukri' blow given
by accused Ranjit Bora. The evidence of P.W.7 is corroborated by the
medical evidence (P.W.5).
38. It is also found in the evidence of P.W. 6 Ananda Bora, the
husband of P.W.7 Niju Bora that when Niju Bora (P.W.7) left for the
house of her uncle Atul Bora (P.W.1) after receiving the 'khukri' blow
from accused Ranjit Bora and when he (P.W.6) about to rise from the
chair, the accused Ranjit Bora gave blow on his left cheek by the 'khukri'
and then when P.W.6 about to come out from the house after receiving
the said injury, the accused gave blow on the neck of Bashab Bora and
on seeing this incident, his son Biplabjyoti Bora ran away from there.
From this part of evidence of P.W.6 Ananda Bora, it is found that he saw
when accused Ranjit Bora giving 'khukri' blow on the neck of Bashab
Bora. No contradiction has been come out during the cross examination
of P.W.6. P.W.5 Dr. Bipul Baruah examined P.W.6 Ananda Borah on the
same day of the incident at around 10'30 P.M. at Dergaon CHC and
found incised wound over the left cheek extending from mandibular to
23
ramus, size – 8Cm. X '5Cm. The findings of P.W.5 Dr. Bipul Baruah in
respect of the injury sustained by P.W.6 Ananda Bora has not been
challenged by the defence. The medical evidence supported the version
of P.W.6 in respect of the injury sustained by him. I find no ground to
disbelieve the evidence of P.W.6. The defence could not point out any
fact which belied the testimony of both P.W.6 and P.W.7.
39. Here, we find that P.W.6 Ananda Bora has sustained simple
cut injury caused by sharp weapon. The accused Ranjit Bora had caused
the said incident. The offence u/s 324 of IPC is clearly made out against
the accused person.
40. Bashab Bora (since deceased) who received cut injury on
his neck in the house of P.W.6 and P.W.7 succumbed to the injury. P.W.1
Atul Bora found the dead body of Bashab Bora lying near the edge of
the varandah of house of P.W.6. The evidence of P.W.6 that he saw
giving of cut blow on the neck of Bashab Bora by accused Ranjit Bora
has not been challenged by the defence during cross examination except
putting some suggestions to P.W.6 which have been denied by him. The
Police (P.W.12) prepared the inquest over the dead body of deceased
Bashab Bora. Ext-2 is the inquest report prepared by the police in
presence of P.W.1 Atul Bora. As per Ext-2, the inquest report, police
found the dead body of Bashab Bora lying on the edge of the varandah
of the house of P.W.6 Ananda Bora with cut injury on the left side of the
neck in a pool of blood. Except this injury, no other injury found on the
body of the deceased Bashab Bora. The contents of the inquest report
vide Ext-2 has not been challenged by the defence. Ext-4, the post
mortem examination report of the deceased Bashab Bora prepared by
Dr. Neelima Phukan (P.W.3) has supported the prosecution case in
respect of injury sustained by the deceased. P.W.3 Dr. Neelima Phukan
opined that the cause of death of the deceased was due to shock and
haemorrhage as a result of sharp cutting injury over the left side of the
neck in oblique direction from upward to downward direction from 6th
and 7th cervical vertebrae to left side of the Thirod cartilages cutting of
soft tissues, muscles and pleat vassals of the left side, size – 10 Cm. X
24
7Cm. X 5 Cm. The opinion of Doctor,P.W.3 has not been challenged or
disputed by the defence.
41. From the evidence of P.W.6 Ananda Bora and P.W.7 Smti.
Niju Borah, it is proved that accused Ranjit Bora entered into the house
of P.W.6 Ananda Bora and inflicted cut injury to him, to his wife Smti.
Niju Bora (P.W.7) and Bashab Bora with a 'khukri' and Bashab Bora
succumbed to the injury on the same day. P.W.7 rushed to the house of
her uncle Atul Bora (P.W.1) followed by P.W.6 Ananda Bora. Both P.W.6
and P.W.7 were shifted to Dergaon CHC for medical treatment. It is true
that the prosecution did not examine the son of P.W.6 Ananda Bora who
was at that time showing his mark-sheet of half yearly examination to
his tutor Bashab Bora (since deceased). None examination of the said
boy as witness, does not belie the aforesaid direct, clear and substantial
evidence.
42. After causing the occurrence in the house of P.W.6, the
accused left the place. P.W.8 Manash Bora subsequent to the said
occurrence, found the accused Ranjit Bora on the way coming on riding
bicycle and when he gave a call to the accused, then the accused
inflicted cut injury on the right ear of P.W.8 Manash Bora. Thereafter,
P.W.8 ran away from there to the house of P.W.9 Nanda Hazarika and
then he came to know that after attacking Bashab Bora, the accused
person came out from the house of P.W.6 Ananda Bora and inflicted cut
injury to him.
43. Here also we find that P.W.8 Manash Bora has supported
the case of the prosecution. The evidence of P.W.8 has not been rebutted
in cross examination. The evidence of P.W.8 has been supported by the
evidence of P.W.9 Nanda Hazarika, P.W.10 Ratul Bora and P.W.11
Ranjit Borah who are the seizure witnesses. They saw when police
seized the bicycle from the house of the accused person.
44. After collective reading of the evidence of P.W.1 Atul Bora
and P.W.12, S.I. of police Biren Borgohain, it is found that P.W.12
reached the place of incident at 10 P.M. on 18.8.2008 after receiving the
telephonic information. When the police officer received the ejahar, Ext-
25
1 on the same night after 12 P.M., the following date is mentioned as
1 A.M of 19.8.2008 and when the police officer reached the police
station, he registered the said ejahar at 3 A.M. of 19.8.2008. More over,
the evidence of P.W.12 and from Ext-7 the printed FIR form prepared by
the police officer at the time of registration of the case shows that it was
received by the police on the same night at 3 A.M. on 19.8.2008. The
FIR was received only from P.W.1 and none of the prosecution
witnesses was confronted with the FIR by the defence nor any question
was put to them regarding the time of making the FIR. The FIR was
sufficiently clear in respect of the name of the accused, name of the
deceased, names of the injured persons, place of occurrence and time of
occurrence. The FIR was not at all subjected to scrutinize by the
defence at any time. Hence, the FIR does not suffer from any mischief
and it is a valid piece of material evidence duly supported by oral
evidence. P.W.7 Nijumoni Bora rushed to the house of the informant
P.W.1 immediately after the incident followed by P.W.6 Ananda Bora.
Therefore, P.W.1 has no sufficient knowledge about the incident. When
P.W.1 went to the place of incident, he saw Bashab Bora lying dead.
P.W.6 saw inflicting of cut injury on the neck of Bashab Bora by the
accused. Ext-3 is the seizure list prepared by the Investigating Officer
(P.W.12) while in seizing one 'Khukri', one blue coloured long pant and
one earth coloured pant from the jungle situated in front of the house of
the accused on pointing out by the accused person. The defence did not
challenge the contents of Ext-3, the seizure list.
45. Another point raised by the prosecution is that the accused
person after the incident, absconded from his house. Therefore, the
police officer (P.W.12) did not find him in his house. On 20.8.2008, at
around 9'20 A.M., P.W.12 received a telephonic call from Golaghat
police station that the accused Ranjit Bora had surrendered before the
said police station on the previous night at around 9/10 P.M. and he was
apprehended by P.W.12. This is the another circumstances u/s 8(i) of the
Indian Evidence Act as after commission of the crime, the accused
absconded from the place of occurrence and from his house. This
26
relevant circumstances is in favour of the prosecution.
46. From the aforesaid appreciation of the evidence, it is found
that on 18.8.2008, at 8'30 P.M., accused Ranjit Bora armed with
'Khukri', entered into the house of P.W.6 Ananda Bora to commit the
offence. The offence u/s 451 of IPC is clearly made out against the
accused person. Initially, the accused was charged u/s 459 of IPC. But
the said offence is not proved. The offence u/s 451 of IPC is minor in
relation to the offence u/s 459 of IPC. Therefore, the accused is not
prejudiced, if he is convicted u/s 451 of IPC though he was not charged
under the said section of offence.
47. A kerosene lamp made of medicine bottle was burning in
the room of P.W.6 Ananda Bora. At that time, the family members of
P.W.6, i.e. he himself, his wife P.W.7 Nijumoni Borah, their 7 years old
son and Bashab Bora (since deceased) were present. Accused Ranjit
Bora entered into the room and at first, he gave fatal blow to P.W.7
Nijumoni Bora and when Nijumoni Bora left the room, the accused gave
'Khukri' blow to P.W.6 Ananda Bora on his cheek and then Bashab Bora
(since deceased) on his neck with the 'Khukri'. P.W.7 Nijumoni Borah
ran away to the house of P.W.1 Atul Bora followed by P.W.6 Ananda
Bora. P.W.6 and P.W.7 sustained cut injury on the cheek and on the
fingers of both the hands respectively and the right thumb and the left
ring finger of P.W.7 have been amputated. The offence u/s 326 of IPC is
clearly proved against the accused person.
48. P.W.6 Ananda Bora saw while the accused giving 'Khukri'
blow on the neck of Bashab Bora. P.W.3 Dr. Neelima Phukan found one
sharp cutting injury over the left side of the neck in oblique direction
from upward to downward direction from 6th and 7th cervical vertebrae
to left side of the Thirod cartilages cutting of soft tissues, muscles and
pleat vassals of the left side, size – 10 Cm. X 7Cm. X 5 Cm. According
to the opinion of Doctor, P.W.3, this injury is sufficient to cause the
death of Bashab Bora. Thus the defence could not discredit the evidence
of the prosecution on the point of injury inflicted by the accused and
sustained by the deceased.
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49. Another point raised by the prosecution is that the accused
after the incident absconded from his house. The accused surrendered
the day after the next day of the occurrence i.e. on 20.8.2008 at Golaghat
police station, whereas, the occurrence took place in the jurisdiction of
Dergaon police station. This is the relevant circumstances u/s 8(i) of the
Indian Evidence Act in favour of the prosecution.
50. The evidence of prosecution witnesses, however, failed to
prove the motive behind the crime, and therefore, the argument has been
advanced from the side of the defence that prosecution case is most
unlikely as without any motive, the accused must not have committed
such a heinous crime. After going through the evidence of the
prosecution witnesses, I find that the motive behind the crime has not
been surfaced. None of the prosecution witnesses has stated the cause
why the accused inflicted fatal injury to the P.W.6, P.W.7 and Bashab
Bora. If there is anything, it is with the accused . The witnesses can not
be expected to prove the motive in a murder case where everything has
gone down to the soil with the buried of the deceased. There is no rule of
law or rule of prudence that the prosecution case should be rejected for
failure to prove the motive. The very mode of committing the offence
shows that the accused intended to cause the death of Bashab Bora and
accordingly, he inflicted the fatal blow on his neck with the 'Khukri'.
When the death was the intentional act of the accused, section 300 of
IPC is well attracted and the accused is accordingly, punishable u/s 302
of IPC.
51. Under the aforesaid circumstances, I find and hold that the
prosecution is able to prove the case u/s 302/326/451 of IPC against the
accused Ranjit Bora and accordingly, the accused is convicted under the
said sections of law. No separate charge u/s 324 of IPC was found at the
initial stage against the accused person according to my considered
view, the charge u/s 326 of IPC is sufficient to cover the section of 324
of IPC.
52. Before passing the sentence, I have heard the accused on
the point of sentence u/s 235(2) of Cr.P.C. The accused prays for utmost
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leniency. I have considered that aspect. But it must not be ignored that
the act of the accused extinguished the life of the deceased throwing his
family members into the street. The catastrophy brought to the family of
the deceased can not be totally ignored while considering the victimolgy
aspect. On the other hand, the accused inflicted single blow each to
P.W.6 Ananda Bora on his cheek, P.W.7 Smti. Nijumoni Bora on the
fingers of her both hands and to Bashab Bora on his neck and Bashab
Bora succumbed to the injury. Though all murders are cruel, the mode
and manner of commission of the crime can not be termed as too
heinous. The act of the accused does not fall in the category of gravest
of grave offence and rarest of rare cases. The extreme penalty of death is
not warranted in this case. I find that a punishment for imprisonment for
life would meet the ends of justice.
53. Accordingly, I convict the accused Ranjit Bora under
section 302 of IPC and sentenced him to suffer imprisonment for life
and to pay a fine of Rs.5,000/- (Rupees five thousand)only, and in
default of payment of fine, further rigorous imprisonment for one year.
Further, I convict the accused u/s 326 of IPC and sentenced him to
undergo rigorous imprisonment for two years and to pay fine of
Rs.1,000/- (Rupees one thousand) only, and in default of payment of
fine, he shall undergo rigorous imprisonment of three months. Further, I
convict the accused Ranjit Bora u/s 451 of IPC and sentenced him to
undergo rigorous imprisonment for one year and to pay a fine of
Rs.1,000/- ( Rupees one thousand) only, and in default of payment of
fine, he shall undergo rigorous imprisonment of three months. The
sentences shall run concurrently.
54. The seized articles are to be destroyed in due course of
time.
55. Furnish a copy of the judgment and order to the convict-
accused with free of costs immediately.
56. P.W.6 Sri Ananda Bora and P.W.7 Smti. Nijumoni Bora
suffered fatal injury caused by the accused person. They expended
considerable amount as medical expenses for their medical treatment.
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P.W.7 Nijumoni Bora has been remaining in the hospital for the period
of one and half months. Her right hand became invalid due to
amputation of right thumb. Her left hand also became invalid due to
amputation of left ring finger. Further, she sustained incised wound on
her right middle ring finger. Therefore, adequate compensation is
requires to be made to her for her rehabilitation. Her husband Ananda
Bora (P.W.6) has also sustained incised wound over his left cheek
extending from mandibular angle to Ramus, size – 8Cm. X '5Cm. He is
also to be compensated adequately. The deceased Bashab Bora, aged
about 32 years old died on the spot in the result of the said incident. His
dependents have suffered substantial loss due to death of the deceased.
Therefore, the dependents of the deceased Bashab Bora are requires to
be adequately compensated for their rehabilitation.
57. Hence, a copy of this judgment and order be sent to the
Chairman of District Legal Services Authority, Golaghat for
determination of the compensation to be paid to the injured, as well as
dependents of the deceased from the Victim Compensation Fund.
58. The judgment and order is pronounced and delivered in the
open Court today.
Given under my hand and seal of the Court on this the 20th
day of September, 2014.
( T. Lohar ),
SESSIONS JUDGE,
GOLAGHAT.
APPENDIX :
WITNESSES FOR THE PROSECUTION :
1. P.W.1 - Sri Atul Bora.
2. P.W.2 - Sri Diganta Bora.
3. P.W.3 - Dr. Neelima Phukan, M.O.
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4. P.W.4 - Sri Sanjib Bora.
5. P.W.5 - Dr. Bipul Baruah, M.O.
6. P.W.6 - Sri Ananda Bora.
7. P.W.7 - Smti. Niju Bora.
8. P.W.8 - Sri Manash Bora.
9. P.W.9 - Sri Nanda Hazarika.
10. P.W.10 - Sri Ratul Bora.
11. P.W.11 - Sri Ranjit Bora.
12. P.W.12 - Sri Biren Borgohain,I.O.
13. P.W.13 - Sri Ruhindra Nath Changmai, I.O.
14. P.W.14 - Sri Bhupen Kalita.
EXHIBITS FOR THE PROSECUTION :
1. Ext-1 - Ejahar.
2. Ext-2 - Inquest report.
3. Ext-3 - Seizure list.
4. Ext-4 - Post mortem examination report.
5. Ext-5 - Injury report.
6. Ext-6 - Seizure list.
7. Ext-6(A)- Statement recorded u/s 164 of Cr.P.C.
8. Ext-7 - Printed FIR form.
9. Ext-8 - Dead body forwarding challan.
10. Ext-9 - Sketch map of the place of occurrence.
11. Ext-10 - Accused forwarding letter.
12. Ext-11 - Prayer for seeing the seizure list & exhibits.