Dismissed

Sri Lata Ram Swargiary v. the State of Assam and Anr.

Gauhati HC3 Feb 2020Crl.A./306/2016

Case brief

AI extract

What is this about?

The Gauhati High Court dismissed an appeal challenging a life imprisonment conviction for murder under Section 302 IPC. Rejecting arguments of grave and sudden provocation or absence of premeditation, the court upheld the conviction based on the accused's surreptitious surrender with a Khukri.

What did the court decide?

Appeal dismissed; no merit found in contention that offense was under grave and sudden provocation.

Sri Lata Ram Swargiary Vs the State of Assam… — Murder and Culpable Homicide | Gauhati HC (2020)

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GAHC010030772016

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : Crl.A. 306/2016

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1:SRI LATA RAM SWARGIARY

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S/O LATE KAMALA KANTA SWARGIARY, R/O VILL. DALBARI, P.S. SATGAON, DIST. KAMRUP M, GUWAHATI, ASSAM.

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VERSUS

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1:THE STATE OF ASSAM and ANR

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Advocate for the Petitioner : MR.T DEORI

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Advocate for the Respondent :

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BEFORE

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HONOURABLE MR. JUSTICE SUMAN SHYAM HONOURABLE MR. JUSTICE HITESH KUMAR SARMA

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Date of hearing and judgement : 03/02/2020.

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JUDGEMENT AND ORDER (ORAL)

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Suman Shyam, J

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Heard Mr. S. Borthakur, learned counsel appearing for the appellant. We have also heard Ms. B. Bhuyan, learned Additional Public Prosecutor, Assam, appearing for the respondent no.1. None has appeared for the respondent no.2 despite service of notice.

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In this appeal, the judgement and order dated 16/08/2016 passed by the learned Sessions Judge, Kamrup (M), Guwahati in Sessions Case No. 169/2014 has been put under challenge. By the

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judgement and order dated 16/08/2016, the learned Sessions Judge had convicted the appellant under Section 302 of the IPC for committing the murder of his neighbour Tarini Charan Sarma and sentenced him to undergo imprisonment for life and to pay a fine of Rs. 10,000/- with default clause.

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The prosecution case, as unfolded during the course of trial, is that the accused had inflicted multiple injuries upon Tarini Charan Sarma by means of a sharp weapon resulting into his death. Having committed the crime, the accused had surrendered before the Police along with a “Khukri” and confessed to the killing his neighbour.

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On 06/07/2013, an ejahar was lodged by Sri Sachindra Sarmah before the Officer-inCharge, Satgaon Police Station, Guwahati informing that his brother was badly beaten up by Lata Ram Swargiary. Later on, his neighbours had rescued Tarini Charan Sarma from the nearby pond and took him to the GNRC hospital in a serious condition but after admitting him in the hospital, the doctors declared him dead. Based on the ejahar dated 06/07/2013, Satgaon PS case No. 136/2013 was registered under section 302 of the Indian Penal Code (IPC) and thereafter, the matter was taken up for investigation. Upon completion of investigation, the Officer-in-Charge of Satgaon Police Station had submitted charge sheet against the accused under Section 302 of the IPC. The accused had pleaded not guilty. As such, the matter went up for trial.

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In order to bring home the murder charge, the prosecution side had examined as many as 13 witnesses which included one eye witness in the form of Pankaj Kalita (PW-3). In his testimony, the PW-3 had deposed that on the day of the incident, while he was walking in the morning, suddenly he had heard a scream of a person in front of the house of Dinabandhu Talukdar. Immediately, he had noticed that two persons were scuffling in the pond situated on the southern side of the house of the deceased. He had rushed to the place of occurrence and asked them not to quarrel and thereafter, had pulled out one of them from the pond. PW-3 has deposed that while he pulled out one of the two persons from the pond, he had seen a “Dao” like instrument in his hand but he could not recognize the said person. Then he once again entered the pond and brought out the other person, who was Tarini Charan Sarma i.e. the deceased. According to the PW-3, the deceased has sustained injuries on his body and blood was oozing out from his injuries. The witness has confirmed that material Ext.1 was the “Khukri” which was similar to the instrument which he saw in the hand of the person whom he had pulled out. PW-3 has further stated that he had raised alarm and in the meantime, other people had assembled there and took the victim to the hospital. The other person whom he had pulled out from the water, later on, surrendered in the police station. His statement was recorded under Section 164 of the Cr.P.C. by the Judicial Magistrate and Ext. 4 was the statement. During his

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cross examination, the defence side could not shake up the testimony of PW-3.

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PW-1 Sachindra Sarmah is the informant in this case. PW-1 has deposed that the incident happened in the morning of 06/07/2013 and the youngest son of the deceased had informed him that Tarini Charan Sarma was being assaulted by a “Dao” by one Lata Ram Swargiary causing serious injuries to him and that the victim was shifted to the GNRC hospital. PW-1 had stated that he went to GNRC hospital immediately where he saw the victim was lying in an unconscious condition with grievous injuries on his abdomen and plum (sic). The deceased had died on the same day.

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PW-2 Smt. Anima Daimary is a neighbour of the accused and the deceased. PW-2 has stated that she had come to know from the neighbours that there was a quarrel between the deceased and the accused whereby Tarini Charan Sarma died in the GNRC hospital but she did not know as to who had caused the injuries. The testimony of PW-2 is, therefore, not of much significance in this case.

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PW- 4 Smt. Chandrama Devi is the wife of the deceased and in her testimony, she has stated that the occurrence took place on 06/07/2013 in the morning hours in their pond. PW-4 has stated that at the relevant time, she was at Mangaldoi but on the day of occurrence, at about 7 a.m., her neighbour Jiten Saharia had informed her over phone that an accident had occurred to her husband and she should come back immediately. Upon receiving the information, she had returned back and reached home at around 11 a.m. Upon arriving at her place, she could come to know from the villagers that her husband was admitted at the GNRC hospital. Accordingly, she went there and found him dead. PW-4 has also deposed that originally the relationship between the two families was cordial but gradually, the relationship between the families of the accused and the deceased had become strained due to feeling of jealousy.

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PW-5 Sri Nalini Kumar Sarma is the brother-in-law of the deceased Tarini Charan Sarma. PW-5 has stated that on the date of occurrence at about 7 a.m. he received a telephone call from Sri Jiten Saharia, a neighbour of his brother-in-law, who had informed that somebody had assaulted his brother-in-law and as such, he should go to the GNRC hospital at 6^th Miles, Guwahati. On receiving the said information, PW-5 had reached GNRC hospital and found that the Doctors and Nurses were rendering urgent treatment to his brother-in-law. At that time, he had heard the hospital staff talking to his brother-in-law regarding the cause of his injury and his brother-in-law (deceased) had replied that the accused had assaulted him with a “Khukri”. Thereafter, the attending doctors had asked the PW-5 not to speak with the patient anymore and to go out of the ward. During his cross examination, the testimony of the PW-5 could not be dislodged by the defence side.

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PW-6 Sri Raushan Ali was the Home Guard posted on duty at the Satgaon Police Station in the morning of 06/07/2013 and he has deposed that on that day, at about 6-35 a.m., a man had appeared before him and stated that he had come after killing a man. PW-6 has stated that he was carrying a “sword” on his back and he had asked the person to keep the “sword” at his right side. PW6 had later on identified the accused as the person who had come in that morning and had also confirmed that material Ext. 1 was the “Khukri” which the accused had carried to the Satgaon Police Station.

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PW- 9 Sri Sarifuddin Ahmed is another Home Guard, who was on duty at the Satgaon Police Station on the day of occurrence and he has corroborated the version given by the PW-6 by stating that on 06/07/2013, he saw the accused sitting on the floor of the Varandah of Satgaon Police Station. At that time, Raushan Ali i.e. the PW-6 was on duty and on being asked, the on duty Home Guard (PW-6) had informed him that the man had killed someone. After about 20 minutes, the Officer-inCharge of Satgaon Police Station, Inspector Ajit Kumar Sarma had arrived at the Police Station, where-after, the accused had surrendered before the Officer-in-Charge and delivered the “Khukri” which was used in causing injury to the deceased.

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PW-10, Sri Jatin Chandra Nath has stated that he was sleeping at the police barrack of Satgaon Police Station and on 06/07/2013 at about 5-30/6 a.m. he had heard Raushan Ali (PW-6) saying that a man has surrendered after killing a person. Hearing that, he got up from the bed and saw the accused in the Police Station with a “Khukri” in his hand. Then he had asked the accused to keep the “Khukri” on the floor of the Varandah of the Police Station and to sit on the floor. PW-10 had also identified the accused while he was standing on the docks.

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PW-12 Sri Ajit Kumar Sarma was the Officer-in-charge of Satgaon Police station and he was entrusted with the responsibility of carrying out investigation in this case. PW-12 has deposed that on 06/07/2013, while he was the Officer-in-Charge of Satgaon Police Station, the accused had appeared before him carrying a “Khukri” and reported that he had assaulted his neighbour Tarini Charan Sarma with the “Khukri”. PW-12 has stated that he had made Satgaon Police Station GD entry No. 145 dated 06/07/2013 at 6-40 a.m. and seized the “Khukri”, which was produced by the accused and then arrested him. Thereafter, he had proceeded to the place of occurrence but before he had reached the place, the deceased, in an injured condition, was shifted to the GNRC hospital, Guwahati for treatment. PW-12 has also stated that on arriving at the place of occurrence, he drew up a sketch map (Ext. 11) and recorded the statement of the witnesses including the eye witness Sri Pankaj Kalita (PW-3), who was found present at the place of occurrence. However, the family members of the

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deceased including his wife Smt. Chandrama Devi were found absent at home since they had gone for a Puja to Mangaldoi. From the testimony of PW-12, it is apparent that the accused had surrendered before the Satgaon Police Station in the morning of 06/07/2013, immediately after the incident and the version of PW-12 finds corroboration from the testimony of PWs 6, 9, 10 and 12.

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PW-11 Md. Isahaque Ali has stated that he was working as an Assistant Sub-Inspector of Police under the Satgaon Police Station and as per direction received from his superior he had conducted inquest on the dead body of the deceased Tarini Charan Sarma in presence of witnesses at GNRC. Thereafter, the dead body was sent to the Guwahati Medical College and Hospital for post mortem examination. PW-11 has proved Ext. 3 which is the Inquest report.

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PW-13 Ms. Tripti Ari is the Judicial Magistrate, 1^st Class, who had recorded the statement of Pankaj Kalita (PW-3) under Section 164 Cr.P.C. PW-13 has deposed that she had recorded the statement of the witness, who was escorted and identified by Sri Gopal Sarma. The witness has stated that Ext. 13 is the record of GR Case No. 8040/2013 and Ext. 13(1) is the relevant portion of the order dated 09/07/2013.

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PW-7 Dr. Pradip Kumar Thakuria was the Medical Officer on duty who had performed post mortem examination on the dead body of Tarini Charan Sarma on 06/07/2013. According to the doctor, the following injuries were noticed in the dead body :-

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“1. EXTERNAL APPEARANCE :-

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One average built, swarthy complexioned, male naked dead body. Face and body smeared with blood at places. Rigor mortis develop. Hypostasis not detected.

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INJURIES:-

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(i) Incised wound 4 x 1.5 cms muscle deep present over tip of the nose.

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(ii) Incised wound 4 x 1.5 cm muscle deep present at the ankle joint above the superstenal notch.

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(iii) Incised wound 6 x 4.2 cms muscle deep present over arteries apart of right forearm.

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(iv) Stab wound which is stitched surgically present over left hypochondrias 4 cms above an away from the umbilicus, measuring 6 x 3.4 cm cavity deep. Track passes prancing the omantum stabbing the right lobe of the liver. Peritoneal cavity contains blood and sinus atmester blook cloths attached to wounds margin which resist washing with canter.

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(v) Incised wound base of the right thumb 4 x 2.5 cm x muscle deep present (defence wound).

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(vi) Incised wound at the junction of left thumb and index finger 4 x 4 x muscle deep present (defence wound).

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(vii) Incised wound 3 x 1.5 cm x muscle deep present on base of the left index finger.”

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The doctor (PW-7) has opined that the cause of death was due to hemorrhage and shock as a result of the injuries sustained and that all the injuries were ante-mortem, caused by moderately heavy sharp edged pointed weapon, which were homicidal in nature.

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From an analysis the evidence available on record, the learned Sessions Judge was of the view that the prosecution has succeeded in establishing the murder charge brought against the accused beyond all reasonable doubt. Accordingly, the appellant was convicted under section 302 of the IPC.

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From the materials available on record, we find that the prosecution side has produced an eye witness in the form of PW-3 who had witnessed the occurrence. It has come out from the testimony of PW-3 that he had pulled out two persons from the pond and one of them was the deceased but the witness had stated that he could not identify the other person. PW-3 had stated that the other person was carrying a “Dao” like instrument in his hand. PW-3 had also stated that the other person whom he had pulled out from the pond had later on surrendered in the Police Station and the witness has also identified Material Ext.1 as the “Khukri” he saw in the hand of that person. PW-3 has also seen the deceased in the injured condition when he pulled him out of the pond. From the evidence of PW-3, it is clear that he is the eye witness to the occurrence and he was present in the place of occurrence while the accused and the victim was engaged in a scuffle inside the pond.

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It has also come out from the testimony of PWs 6, 9, 10 and 12 that the accused had surrendered before the Police Station along with a “Khukri” which was used to cause fatal injury on the deceased. The testimony of eye witness (PW-3) viewed in the light of the testimony of the prosecution witnesses viz. PW-5, 6, 9, 10 and 12 leaves no room for doubt that it is the accused who had assaulted the deceased Tarini Charan Sarma causing grievous injuries on his body leading to his death and later on surrendered before the Police. The evidence of PW-7 and the injuries mentioned in the post-mortem report Ext. 6 also establishes the fact that the deceased had suffered homicidal death due to the injuries suffered by him. Therefore, we find ourselves in agreement with the opinion

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expressed by the learned Sessions Judge that the prosecution has succeeded in proving the charge beyond all reasonable doubt.

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At this stage, Mr. Borthakur, learned counsel for the appellant has argued that even if it is held that it is the appellant who had assaulted the deceased leading to his death, even then there are sufficient materials to indicate that there was a quarrel between the accused and the deceased over boundary fencing and it was owing to such quarrel and out of grave and sudden provocation that the appellant had assaulted the deceased without having any intention to kill him. By referring to the evidence on record, Mr. Borthakur has argued that there is absence of evidence to indicate any premeditation on the part of the accused/appellant and therefore, this is at best a case coming under the purview of Section 304 (II) of the IPC. In support of his aforementioned argument, Mr. Borthakur has relied upon two decisions i.e. Rampal Singh Vs. State of Uttar Pradesh reported in (2012) 8 SCC 289 and Babu Garh Vs. State of Assam reported in 2016 (4) GLT 847.

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It would be significant to note herein that while the statement of the accused was recorded under Section 313 of the Cr.P.C., he has denied any involvement and later on he had examined two witness including himself as DW-2. DW-1 Sri Bakul Daimary is a neighbour of the accused and he has deposed that on the date of the incident, deceased Tarini Charan Sarma had called the accused to the field to have a discussion. At that time the, accused Lataram was at home. DW-1 has further stated that he had not seen what had happened there-after and that he did not know what was the matter over which the quarrel took place.

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DW-2 i.e. the accused in this case, on the other hand, has deposed that on 06/07/2013, at about 6 a.m. while he was raising a bamboo fencing on the boundary between him and Tarini Charan Sarma (deceased) his neighbour had demanded 15 ft width path instead of 12 ft and when he refused to give 15 ft, it had led to delivery of fist and blows between them whereby, Tarini fell down in the water of the pond. There-after, he had engaged himself in raising the bamboo fencing but after some time, he run away from the place of occurrence fearing assault by the villagers and then rushed to the Satgaon Police station and reported the occurrence to the on duty police personnel. DW-2 has also stated that at about 8 a.m. he was put behind the lock-up in the police station.

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From the testimony of DW-2, two things are apparent. Firstly, the deceased Tarini fell down in the pond after a scuffle with the accused and secondly, after the fist fight, the accused had resumed the activity of raising bamboo fencing. From the evidence of DW-2, it is clear that the incident took place in the pond adjacent to the land of the deceased. The aforesaid fact also stands established from the sketch map (Ext. 11) which clearly marks the place of occurrence as the pond

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adjacent to the land of the deceased. If that be so, the version of DW-2 clearly contradicts the testimony of DW-1, who had deposed that it is the deceased who had called the accused to come to the field. On the contrary, the materials available on record clearly indicates that it is the accused who had come to the house of the deceased and assaulted him.

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Coming to the question of absence of pre-meditation in this case, as raised by Mr. Borthakur, we find that although the DW-2 has stated that he was raising a bamboo fencing before coming to the place of the deceased, yet, it has come out from the testimony of the witnesses examined by both the sides that the incident had occurred on 06/07/2013 early in the morning at about 6 a.m. It is difficult to believe that the deceased had started working on a bamboo fencing at 6 a.m. in the morning. That apart, only one “Khukri” was used in the incident and the said weapon was handed over to the police by the appellant/accused himself, which was later seized by the Police and produced as material Ext.1. If the accused had gone to the house of the deceased early in the morning at 6 a.m. armed with a “Khukri” and picked up a fight, thereby inflicting fatal stabs on the deceased, it cannot be believed that there was no pre-meditation on the part of the accused. Moreover, the DW-2 has himself stated that after Tarini had fallen down in the water, he had resumed the work of setting up the fencing. If that be so, it is evident that the appellant/accused was in a composed state of mind even after assaulting the deceased. This piece of evidence, in our opinion, would rule out the possibility of existence of any grave provocation under which the accused could have lost his self control. As such, we find that the assault was the outcome of premeditation on the part of the accused. The injuries indicated in the post-mortem report which mentions about 7 (seven) incised injuries in various part of the dead body and the fact that the accused was armed with a “Khukri” when he had entered the land of the deceased also leaves no room for doubt that there was pre-meditation on the part of the accused to cause harm and injuries to the deceased knowing well that such injuries might lead to his death.

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In the case of Rampal Singh (Supra), there was no evidence on record to show previous animosity between the parties. On the contrary, the relationship between them was cordial. The dispute between the parties arose with reference to the “Ladauri” erected by the deceased over his land. It was in such fact situation that the Apex Court has observed that there was no pre-meditation and hence, no intention on the part of the accused to kill the deceased. But in this case, it has come out from the testimony of the PW-4 that the relationship between the parties was not cordial. Likewise, in the case of Babu Garh (Supra) this Court had found that the accused had assaulted his brother with a bamboo stick in a heat of passion when a quarrel broke open between the two. Therefore, it is apparent that the aforesaid decisions relied upon and referred to by Mr. Borthakur had

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been rendered in the facts and circumstances of those cases. Having regard to the facts of this case, we are of the opinion that the ratio laid down in the aforementioned decisions would not have any relevant bearing in the outcome of the present case.

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As has been held above, the prosecution has succeeded in establishing the charge brought against the appellant beyond all reasonable doubt and there is no evidence available for this Court to hold that the assault was made out of sudden provocation so as to bring this case within the purview of Section 304 Part-II of the IPC.

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For the reasons stated herein above, we are of the view that there is no merit in this appeal. The appeal is accordingly dismissed.

Send back the LCR.

JUDGE JUDGE

Sukhamay

Comparing Assistant

Sri Lata Ram Swargiary v. the State of Assam and Anr.

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Sri Lata Ram Swargiary v. the State of Assam and Anr.

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