Appeal against conviction for culpable homicide. High Court found prosecution evidence insufficient due to inconsistencies, lack of corroboration, and absence of eyewitness testimony regarding the assault and death.
Impugned judgment and order of conviction and sentence is quashed and set aside.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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GAHC010111242018
THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.A. 190/2018
1:DANDESWAR BORAH S/O LATE JITEN BORAH R/O VILLAGE NO. 1 JAMAGURI PS DHEMAJI, PO JAMAGURI DIST DHEMAJI (ASSAM)
VERSUS
1:THE STATE OF ASSAM AND ANR REPRESENTED BY PP ASSAM
2:SMTI. SANJUMONI BORAH W/O SRI HIRANYA HILOIDARY R/O NO. 2 JAMAGURI PO JAMAGURI PS DHEMAJI DIST DHEMAJI ASSAM 78705
Advocate for the appellant/accused: Mr. M. Biswas and
Mr. D. Tiwari.
Advocate for the respondents: Mr. D. Das, Addl. P.P., Assam.
BEFORE
HON’BLE MRS. JUSTICE RUMI KUMARI PHUKAN
Date of hearing: 28.08.2019.
Date of judgment: 06.09.2019.
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JUDGEMENT AND ORDER (CAV)
Heard Mr. M. Biswas, learned counsel appearing for the appellant/accused as well as Mr. D. Das, learned Addl. P.P., Assam appearing for the State respondent.
I.O. and the M.O., in support of their case whereas defence examined none is support of their defence. After completion of evidence, statement of the accused u/s.313 CrPC was recorded and after perusal of the materials available and considering the statement of witnesses, convicted accused
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Dandeswar Borah as aforesaid. On the other hand, the accused persons namely Smti. Bijumoni Borah and Dipen Borah were found not guilty and were acquitted from the offence alleged.
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and a ‘dao’ in his presence vide Ext.2 seizure list and Ext.2(1) is his signature.
(ii) Right side of face two in number size 5 cm X 2 cm X 4 cm and second 8 cm X 2cm X 4 cm
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(iii) Posteriors part of the skull with avulsion of posterior occipital part triangular in shape
(iv) Single lacerated injury present, left side of skull about 8 cm X 5 cm X 5 cm.
He has opined that the death was due to brain haemorrhage followed by injury to the brain and it was ante-mortem in nature. Ext.4 is the post mortem report and Ext.4(1) is his signature.
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decision rendered by the trial court is on the basis of legal evidence and sustainable in the eye of law. In the instant case the FIR was filed by the informant/daughter of the deceased and according to her all the four accused persons named in the FIR, i.e. Dandeswar Bora, Smti. Bijumoni Bora, Dipen Bora and Kon Buragohain conjointly assaulted her father with sharp weapon like dao, kuthar by confining him inside the room and on her hue and cry calling neighbouring persons the accused also tried to kill her for which she fled away. Apparently, by her allegation she has implicated four accused persons and the occurrence took place in her presence. It is also her specific evidence in course of trial that she saw the incident with her own eyes.
Ø The claim of the informant that she was present in her house on the day of occurrence is negated by the evidence of the I/O as soon as I/O has contradicted her statement that she did not state before the I/O that she was in the house of her father neither she had seen the occurrence. Apparently she is not an eye witness to the occurrence.
Ø None of the witnesses has supported the case of the informant but each of the witnesses has given distorted version of the case, which is itself inconsistent to the story depicted by PW1. There is no any eye witness to the occurrence.
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picture of the occurrence and he simply suspects that the deceased Jiten has been killed by his sons.
Ø The evidence of PW7 is more astounding (the wife of one of the accused Dipen Bora) who has given a different story than that of PW1 that there was a fight between the accused Dandeswar and the deceased Jiten and Dandeswar came out with a dao in his hand then her husband assaulted Dandeswar with a dao. Such an evidence cannot simply be accepted on the ground that her evidence is contrary to the evidence of PW1 as well as the FIR and she is wife of one of the accused named in the FIR.
Ø The evidence of PW8 is altogether on different footing and peculiarly enough he was one of the accused named in the FIR. There is nothing on record as to how an accused turned as a witness. His evidence shows that it was the deceased Jiten who assaulted the accused Dandeswar with a dao and accused Dandeswar sustained injury on his hand as he tried to save himself by holding the dao and his father scuffled with Dandeswar and then one person namely Tipai hit the deceased. Obviously such a story inconsistent to the allegation in FIR is not at all inspiring, convincing rather it has no evidentiary value, in terms of the allegation.
Ø As per the allegation the deceased was assaulted with dao and axe etc. but there was no such severe cut injury found on the deceased as per the finding of the Medical Officer/PW.4. Morever, in absence of any other supportive evidence to the occurrence the evidence of Medical Officer is of no consequence.
the informant but has also shaken the authenticity of the allegation. There is lack of evidence as to the genesis of the occurrence. No any clear and convincing evidence, neither direct or circumstantial evidence as to one under what circumstances the deceased succumbed to his injury or the present accused sustained injury on his person. Being a court of law we are concerned with legal evidence to robe a person with the offence charged. It is noted with concerned that it is a poorly conducted case by prosecution and none of the witnesses were declared hostile for giving such inconsistent evidence. But while arriving at the decision the court has its bound to confine its findings only with legal evidence not on assumption and presumption, and not to be swayed by irrelevant consideration.
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(i) whether the accused has done the act by doing which has caused the death of the another?
(ii) whether the act of the accused amounts to culpable homicide as defined in section 299 IPC?
(iii) Whether facts proved by the prosecution bring the case within the definition of murder under Section 300 or the offence culpable homicide under Section 299 IPC?
JUDGE
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Comparing Assistant
2 issues framed by the court
Whether the prosecution evidence satisfies the legal requirements for conviction under Section 304 Part-II of the IPC for culpable homicide.
Whether serious discrepancies and lack of corroboration in the prosecution case warrant quashing the trial court's conviction.
2 provisions across 1 enactments
Dandeswar Borah
The State of Assam
Sanjumoni Borah
Rumi Kumari Phukan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
