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2010 Supreme(Gau) 139
IN THE HIGH COURT OF GAUHATI
Jasti Chelameswar, C.J. and Arun Chandra Upadhyay, J.
Bogai Bora
Vs.
State of Assam
Criminal Appeal No. 122 of 2006
Decided On: 23.02.2010
For Appellant/Petitioner/Plaintiff: Y.K. Phukan, D. Borgohain, M. Bhuyan and S. Bora, Advs.
For Respondents/Defendant: Z. Kumar, Adv.
Headnote:
Indian Penal Code - Section 304/ 302 – Murder – Injury – Evidence - During consideration of charge against accused learned Ad hoc. Sessions Judge upon hearing learned Counsel for parties finding sufficient materials under Section 302 IPC against appellant framed a formal charge in writing under aforesaid section of law - On reading over and explaining charge aforesaid appellant pleaded not guilty and claimed to be tried – Held, Unfortunately as it appears to us fight which turned fatal broke out all on a sudden due to emotional outburst of two peaceful neighbors - Obviously there was extreme misunderstanding which incidentally led to unfortunate occurrence Even if accused committed offence of culpable homicide even then he did not have intention to kill his neighbor - Evidence on record did not disclose any hatred and animosity towards deceased – However accused had knowledge that if he assault deceased with weapon he was holding there was likelihood of causing death of deceased but without any intention to cause death or to cause such bodily injury as was likely to cause death - Over and above deceased received only one cut injury on his neck which was on lower part of right side of lower part of neck anterior posterior measuring - Appeal allowed
A.C. Upadhyay, J.
1. This appeal is directed against the judgment and order dated 24.3.2006 passed by the learned ad hoc Additional Sessions Judge, North Lakhimpur, Lakhimpur in Sessions Case No. 50(NL)/04 (GR Case No. 146/03), whereby the appellant was convicted under Section 304, Part-I of the IPC and sentenced to undergo rigorous imprisonment for life and to pay fine of Rs. 5,000, in default of payment of fine to undergo R.I., for another one year.
2. The facts necessary for disposal of this appeal, may be narrated in brief as follows;
On 31.1.2003 around 8 O'clock in the morning" as an upshot to a boundary dispute, the accused above named, assaulted the deceased by hacking him on his neck with a 'dao' (a sharp cutting weapon). As a result of the injury caused, the deceased immediately succumbed to death. The occurrence took place in the residential compound of the deceased. On the same day, i.e., 31.1.2003 Shri Kamala Saikia, (PW1) lodged a written 'ejahar' at the Laluk Police Out Post. The in-charge of the Police Out Post after making entry of the report in the General Diary of the Out Post forwarded the ejahar to the Officer in-charge, Bihpuria Police Station for registration of a case. The Officer in-charge, Bihpuria Police Station registered a case under Section 302, IPC and issued direction to the in-charge of the Laluk Police Out Post to launch investigation of the case.
3. During the course of investigation, inquest over the dead body was conducted by the Executive Magistrate, Lakhimpur in presence of the witnesses and thereafter the post mortem examination on the dead body was carried out by Dr. Pradip Medhook, (PW11) SDM and H.O., at Lakhimpur. The Investigating Officer (I.O.), during the course of investigation seized a 'dao' with a long handle, on being produced by Smt. Jonali Bora, (PW6) and blood stained 'dhoti', which was put on by the deceased at the time of occurrence. The Investigating Officer (I.O.), also seized one spade and a blood stained 'gamocha' from the place of occurrence. On completion of the investigation the I.O., submitted charge sheet alleging commission of offence under Section 302, IPC.
4. The learned Judicial Magistrate (First Class), North Lakhimpur, Lakhimpur, on submission of charge sheet against the accused, committed the case to the court of learned Sessions Judge, Lakhimpur for trial. The Sessions Judge thereafter transferred the case to the court of learned Ad hoc Addl. Sessions Judge, Lakhimpur, for disposal.
5. During consideration of charge against the accused, the learned Ad hoc Audl. Sessions Judge (FTC); upon hearing learned Counsel for the parties finding sufficient materials under Section 302, IPC against the appellant, framed a formal charge in writing under the aforesaid section of law. On reading over and explaining the charge aforesaid the appellant pleaded not guilty and claimed to be tried.
6. During course of trial, the learned Ad hoc Addl. Sessions Judge (FTC) examined in all 12 witnesses including the Doctor (PW11), who carried out the post mortem examination of the deceased and the Investigating Officer (PW12) of the case. On completion of examination of the evidence of prosecution witnesses, the learned Sessions Judge recorded statement of the accused as per the provision of Section 313, Cr.PC. In his statement under Section 313, Cr.PC, the accused took the plea of total denial and further affirmed that his boundary drain and the path leading to his land was closed by witnesses, namely, Khageswar (PW10), Tupiram (PW9) and Priyaram (PW3). The accused further stated that the O.C. (Officer in-Charge), on being informed about the problem, came for inspection with the 'Gaonbourah' (village headman) and told him to raise the fencing after demarcation of the boundary. On the date of incident, as stated by the accused, he was digging the drain in boundary land, at that moment, deceased Bijendra, along with his brothers, Topiram, Khageswar and sister-in-law Beauty Bora ca
