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IN THE COURT OF SESSIONS JUDGE : LAKHIMPUR :AT NORTH LAKHIMPUR.
SESSIONS CASE NO.67(NL)2010.
P A R T I E S
State of Assam. … Complainant.
-versus-
1. Sri Babul Hazarika.2. Sri Prakash Hazarika. … Accused.
P R E S E N TSri A.K. Das,Sessions Judge,Lakhimpur, North Lakhimpur.
APPEARANCEMr. J. Gogoi, the learned Public Prosecutor, for the State.Mr. Arup Bora, the learned Advocate for the accused persons.
Date of charge : 29.11.2010.Dates of evidence of Prosecution witnesses : 21.02.2011, 06.06.2011, 21.09.2011, 14.11.2011,
12.03.2012, 03.04.2012, 03.09.2012 & 04.12.2012.
Date of evidence of Defence witness : 12.03.2013.Date of statement : 06.02.2013. Date of argument : 05.03.2014 & 21.04.2014.Date of Judgment : 05.05.2014.
J U D G M E N T
1. Accused persons, namely Sri Babul Hazarika and Sri
Prakash Hazarika stand charges under Sections 341/ 302/ 34 IPC for alleged
commission of offence of wrongful restrain of the informant, Sri Dilip Das
and another Sri Ram Krishna Hazarika of Sanatangaon, and also for
committing murder by intentionally or knowingly causing death of Babu
Contd…
2
Das, son of Sri Dilip Das of Sanatangaon under North Lakhimpur Police
Station, while he was trying to save his father from their assault on
11.12.2008 at about 8.30 pm.
Facts of the Case
2. The prosecution allegation as disclosed from the F.I.R in
brief, is that on 11.12.2008 at about 8.30 Pm, while the informant, Sri Dilip
Das alongwith Sri Ram Krishna Hazarika, r/o Sanatangaon was proceeding
towards their homes from market, and when they reached in front of the
house of the accused persons then both the accused persons alongwith three
others armed with deadly weapons wrongfully restrained them on the way
and tried to assault, at this the informant, Sri Dilip Das and said Ram
Krishna Hazarika raised hue and cries and after hearing their hue and cries,
Babu Das, the son of the informant and Sri Papu Das, the son-in-law of the
informant immediately rushed to the place of occurrence to intervene the
matter, at this the accused persons assaulted his son, Babu Das and caused
death to him with the help of one 'Posha' ( a weapon having pointed iron
with handle ).
Investigation
3. To that effect, the Officer-in-charge of North Lakhimpur
PS received the F.I.R. and registered it as North Lakhimpur PS Case
No.805/2008 u/s 341/ 302/ 34 IPC and entrusted Sri Bhaben Dutta, SI of
police to investigate the case. During the course of investigation, the I.O.
recorded the statements of the witnesses, prepared the sketch map of the
place of occurrence, held inquest on the dead body of the deceased with the
help of Executive Magistrate, and subsequently the Officer-in-charge of
North Lakhimpur PS after completing the investigation submitted the
chargesheet against both the accused persons, namely Sri Babul Hazarika
and Sri Prakash Hazarika u/s 341/ 302/ 34 IPC vide Chargesheet No.405
dtd 31.10.2009 in F.I.R No.805/ 2008 dtd. 12.12.2008.
4. The case was committed to the court of Sessions by the
learned Judicial Magistrate 1st class, North Lakhimpur vide Order dtd.
15.06.2010 as the offence u/s 302 IPC is exclusively triable by the court of
Contd…
3
Sessions. Accordingly, on 29.11.2010, a charge u/s 341/ 302/ 34 IPC has
been framed against both the accused persons, namely Sri Babul Hazarika
and Sri Prakash Hazarika, as follows :
That, you on 11.12.2008 at 8.30 pm at Sanatangaon, in
furtherance of common intention of you both had wrongfully restrained the
informant, Sri Dilip Das and another, Sri Ram Krishna Hazarika of
Sanatangaon under North Lakhimpur PS on their way, and thereby
committed an offence punishable u/s 341/ 34 IPC.
Secondly, that, you on the same day, time and place in
furtherance of common intention of you both, had committed murder by
intentionally or knowingly cause death of Babu Das, s/o Sri Dilip Das of
Sanatangaon under North Lakhimpur PS while he was trying to save his
father from your assault, and thereby committed an offence punishable u/s
302/ 34 IPC.
5. The aforesaid charges were read over and explained to
the accused persons, to which they pleaded not guilty and claimed to be
tried.
Plea of the accused persons
6. Accused, Sri Prakash Hazarika has taken the plea of
alibi. The said accused has stated that at the relevant point of time, he was
at his shop house, which is situated at North Lakhimpur town within a
distance of about 2 ½ km from his house and he has been falsely implicated
in this case. The other accused, Sri Babul Hazarika has taken the plea that
on the day of occurrence at about 8 pm, while he alongwith his inmates
were ready to take meal in their house, then the informant, Sri Dilip Das
rebuked him and thereafter said Dilip Das alongwith Sri Ram Krishna, Sri
Papu Das, Sri Suntu Das, Smti Popi Das, Smti Debalata Das and Babu Das
and 6 /7 other persons armed with dao and spears came to their house and
thereafter the informant, Sri Dilip Das assaulted him on his head with lathi
and started breaking his dwelling house and threatened to leave that place
immediately. So, he informed the matter to North Lakhimpur PS, and
accordingly police came and saw his house in broken condition. The said
Contd…
4
accused has taken the plea that as the informant and his son and daughter
came in a body to his house armed with deadly weapon, there was a strive
between the informant party with his inmates and in that strive, the
deceased sustained injury, which caused him death. The said accused has
taken the plea that on the night of occurrence, co-accused, Sri Prakash
Hazarika was not in his house as at the relevant point of time, he was at his
shop house, which is situated at North Lakhimpur town at a distance of 2 ½
km away from his house.
7. I have heard Mr. J.Gogoi, the learned PP and Mr. Arup
Bora, the learned counsel appearing for the accused persons.
Now, the points for determination in this case are –
1) Whether the death of Babu Das, the son of the informant, Sri Dilip
Das of Sanatangaon under North Lakhimpur PS, was an act of
culpable homicide, if so whether it is amounted to murder ?
2) Whether the accused persons, namely Sri Babul Hazarika and Sri
Prakash Hazarika in furtherance of common intention wrongfully
restrained the informant, Sri Dilip Das and another, Sri Ram Krishna
Hazarika of Sanatangaon under North Lakhimpur PS on their way
home on 11.12.2008 at about 11.30 Pm, as alleged ?
3) Whether the accused persons, namely Sri Babul Hazarika and Sri
Prakash Hazarika in furtherance of common intention committed
murder of Babu Das, s/o Sri Dilip Das of Sanatangaon under North
Lakhimpur PS by intentionally/ knowingly causing death of said
Babu Das while he was trying to save his father from the assault of
the accused persons on 11.12.2008 at about 8.30 Pm, as alleged ?
DISCUSSION, DECISION & REASONS ON POINT No.1
8. To ascertain the fact of culpable homicide, let me
consider and appreciate the evidence of the Medical Officer, Dr. Gunin
Kumar Gogoi, PW.10. The said witness deposed that on 13.12.2008, while
he was working as M & HO-1 at North Lakhimpur Civil Hospital, he
performed Post Mortem examination on the dead body of Babu Das, son of
Contd…
5
Sri Dilip Das, and on examination, he found one clean cut incised wound
over the right side of the chest about 4 inch in length and 1 inch in breadth
just transverse in dimension. The wound was just below the right lateral to
the right nipple and perforated the incostal muscles and penetrated right
pleura and right lung and ending in the right side of the vertebral column.
The MO was of the opinion that death was caused due to shock and
haemorrhage due to the injury of the lung and the time of death was 36 – 42
hours. The MO further opined that the injury found on the dead body of the
deceased were sufficient to cause death of a person in the ordinary course of
nature. He has exhibited the Post Mortem report vide Ext.5 and his
signature vide Ext.5(1). Now, from the Ext.2, Inquest Report prepared by
Mrs. Kalpana Deka, the Circle Officer of North Lakhimpur Revenue Circle,
it appears that there was injury on the right side of the chest of the victim,
which is supported by the evidence of the M.O. The Inquest Report and the
evidence adduced by the M.O. and prosecution witnesses supported and
corroborated the fact of injury sustained by the deceased on his right chest.
The M.O (PW.10) has opined that the death was caused due to shock and
haemorrhage due to the injury of lung and the injuries found on the dead
body of the deceased are sufficient to cause death of a person in the
ordinary course of nature. So, from the evidence on record, it appears that it
is a case of culpable homicide amounted to murder.
DISCUSSION, DECISION & REASONS ON POINT Nos.2 and 3.
9. For the sake of convenience, both the points have been
taken together for decision as they are related to each other. To bring home
the charges levelled against the accused persons, prosecution has examined
as many as 11 witnesses, namely PW.1 – Sri Dilip Das, who is the
informant of this case, PW.2 – Sri Krishna Das, who is the witness of
inquest, PW.3 – Sri Ram Krishna Hazarika, who has accompanied the
informant at the time of alleged commission of the offence, PW.4 – Sri
Papu Das, who is the son-in-law of the informant, PW.5 – Smti Devakanti
Das, who is the younger sister of the informant, PW.6 – Sri Niranjan Dutta,
Contd…
6
who is the witness of inquest, PW.7 – Sri Pradip Saikia, who is the eye
witness of the occurrence, PW.8 – Smti Popi Das, who is the daughter of the
informant and eye witness of this case, PW.9 – Md. Safiul Hussain, the I.O.
of the case, who has submitted the chargesheet against the accused persons,
PW.10 – Dr. Gunin Kumar Gogoi, the M.O. and PW.11 – Sri Dilip Dutta,
who is another I.O. of the case.
10. The accused persons have also examined one witness,
namely Smti Prabha Hazarika, who is the wife of the accused, Sri Babul
Hazarika in support of their defence.
11. Now, let me consider and appreciate the evidence of
PW.1, Sri Dilip Das, who is the informant of this case. The said witness
deposed before the court that the occurrence took place on 11.12.2008 at
8.30 pm in front of the house of the accused persons and at the time of
occurrence, when he alongwith Sri Ram Krishna Hazarika were returning
back home from North Lakhimpur town on foot, the accused persons
namely Sri Babul Hazarika and Sri Prakash Hazarika tried to assault them
physically and when they raised alarm then his son, Babu Das and son-in-
law, Sri Papu Das came there with a view to rescue him and then the
accused, Sri Prakash Hazarika struck a blow by a 'Posha' ( an iron pointed
object with handle ) on the right side of the chest of his son, Sri Babu Das,
which crossed through his body and his son, Babu Das immediately fell
down on the ground and succumbed to his injuries at the place of
occurrence. He further deposed that Babu Das was immediately taken to
North Lakhimpur Civil Hospital, where the doctor examined him and
declared him dead. During cross examination, he stated that at the time of
occurrence, he was present at the place of occurrence alongwith Sri Ram
Krishna Hazarika, deceased, Babu Das and his son-in-law, Sri Papu Das.
During cross examination, he also stated that the accused persons had
instituted a criminal case against his wife and in that case, his wife was
acquitted on the day before the occurrence. The defence by way of cross
examination suggested the fact that on the day of occurrence, being over
joyed at the acquittal of his wife, they arranged a feast in their residence and
Contd…
7
he alongwith his family members and Sri Ram Krishna Hazarika attacked
the accused persons and also caused damage to their house being revengeful
at the institution of the criminal case against his wife falsely and there was a
scuffling between both the parties, and somehow the 'Posha' which was
brought by the informant party pierced the chest of his deceased son, which
has been stoutly denied by the said witness.
12. PW.2, Sri Krishna Das is a witness of inquest. The said
witness deposed that the occurrence took place 2 years back and in that
occurrence, Babu Das died. He further deposed that on the next day of the
occurrence inquest was done over the dead body of the deceased by police
and Magistrate and he put his signature on the inquest report vide Ext.2(2).
The accused declined to cross examine the said witness.
13. PW.3, Sri Ram Krishna Hazarika is the vital witness of
this case, who had accompanied the informant at the time of alleged
occurrence. The said witness deposed that the occurrence took place on
11.12.2008 at about 8.30 Pm in front of the house of the accused persons.
The said witness deposed that he alongwith the informant, Sri Dilip Das
were returning back home from market and when they reached near to the
house of the accused persons, both the accused persons alongwith Smti
Prabha Hazarika wrongfully restrained them armed with deadly weapons
and when they raised alarm, then Babu Das @ Pranjal Das, Sri Moina Das
and Sri Papu Das arrived at the place of occurrence and then accused, Sri
Prakash Hazarika hit Moina Das by a piece of brick, and accused, Sri Babul
Hazarika also gave kick blow to Babu Das, as a result, he fell down on the
ground and at this, accused, Sri Prakash Hazarika struck a blow on the chest
of Babu Das by a 'Posha', which pinched the chest of Babu Das, and then
the accused persons fled away from the place of occurrence. During cross
examination, it was suggested that at the time of occurrence, he alongwith
Sri Dilip Das quarrelled with the accused persons in their house and in the
meantime, Babu Das (deceased), Sri Papu Das, Smti Popi Das, Smti
Debakanti Das and Sri Moina Das came to the house of the accused persons
and ransacked the belongings of the accused persons and also assaulted
Contd…
8
accused, Sri Babul Hazarika with a dao and during the scuffle between both
the parties, incidentally the 'Posha' which was brought by the informant side
pierced the chest of the deceased, Babu Das, which has been denied by the
said witness.
14. Now, let me consider the evidence of PW.4, Sri Papu
Das, who is also a vital witness of this case, and who immediately came to
the place of occurrence after hearing hue and cries of the informant. The
said witness deposed that the occurrence took place on 11.12.2008 at about
8.30 Pm in front of the house of the accused persons. The said witness
deposed that after hearing crying voice of Sri Moina Das, he came to the
place of occurrence and found Moina Das lying on the ground and also saw
accused, Sri Babul Hazarika standing at the place of occurrence armed with
‘dao’ and the other accused, Sri Prakash Hazarika with a 'Posha' and Smti
Prabha Hazarika with an iron standing at the place of occurrence. The said
witness, in his evidence categorically, deposed that he saw the accused, Sri
Babu Hazarika giving kick blow to Babu Das, as a result he fell down on
the ground and the other accused, Sri Prakash Hazarika struck a 'Posha'
blow on the chest of Babu Das, which caused him death. He further
deposed that later on, police alongwith Executive Magistrate conducted
inquest on the dead body of the deceased at North Lakhimpur Civil Hospital
and he put his signature on the inquest report as a witness vide Ext.2(3).
During cross examination, it was suggested that at the time of occurrence a
scuffle took place between the informant and the accused persons in the
house of the accused persons and in that scuffle accidentally the 'Posha',
which was taken by the informant party pierced the chest of the deceased,
Babu Das @ Pranjal Das and caused death to him, which has been denied
by the said witness. The said witness in his cross examination admitted that
the accused persons have also instituted a case against him and others
alleging that they had ransacked their house and caused hurt to accused, Sri
Babul Hazarika by a sharp weapon.
15. Now, let me consider the evidence of PW.5, Smti
Debakanti Das, who is the younger sister of the informant, Sri Dilip Das.
Contd…
9
The said witness deposed that after hearing hue and cries, she went to the
place of occurrence and saw accused, Sri Babul Hazarika dragging Babu
Das towards his house. She further deposed that at that time, accused, Sri
Prakash Hazarika struck a spear blow ('Posha' blow) on the chest of Babu
Das, and immediately fell down on the ground and blood was oozing out
from the chest. She further deposed that she picked up the spear and took
the same to their house for showing it to police. She further deposed that
during investigation, she showed the spear, which was used in the
commission of the offence, which was seized by police as Mat. Ext.'Ka'
vide Seizure List, Ext.3 and she has put her signature as a witness of seizure
vide Ext.3(1). During cross examination, it was suggested that on the day of
occurrence during night, Sri Dilip Das and Sri Ram Krishna Hazarika first
assaulted the family members of the accused persons and also damaged his
house and at that time, Sri Papu Das, Smti Popi Das, Sri Pradip Saikia and
some other persons came to the house of the accused, Sri Babul Hazarika
and started assaulting and breaking the house of the accused persons, which
has been completely denied by the said witness.
16. PW.6, Sri Niranjan Dutta, who is the witness of inquest,
deposed that police and Magistrate arrived at North Lakhimpur Civil
Hospital and conducted inquest on the dead body of the deceased, Babu Das
and he put his signature in the inquest report as a witness vide Ext.2(4).
17. PW.7, Sri Pradip Saikia, who is an independent witness
deposed that he had seen the occurrence with his own eyes. The said
witness also deposed that the occurrence took place on 11.12.2008 at 8.30
pm and at that time, he arrived his home from duty and after hearing noise
in front of the house of the accused persons, he proceeded to the place of
occurrence and noticed the accused, Sri Babul Hazarika and alongwith
accused, Sri Prakash Hazarika involved in an altercation with Babu Das and
he then asked them not to quarrel but the accused, Sri Prakash Hazarika
inflicted a blow with a 'Posha' on the abdoman of Babu Das, and as a result,
Babu Das fell down on the ground. He further deposed that said Babu Das
was shifted to North Lakhimpur Civil Hospital, but after examination he
Contd…
10
was declared dead. The said witness further deposed that police came to the
place of occurrence and seized one 'Posha' from Smti Debakanti Das, which
was seized vide Seizure List, Ext.3, and he put his signature on the seizure
list as a witness vide Ext.3(2).
18. Now, let me consider the evidence of PW.8, Smti Popi
Das, who is the daughter of the informant, Sri Dilip Das. The said witness
deposed that the occurrence took place on 11.12.2008 at about 8 pm, and on
that day after hearing hue and cries, she proceeded to the place of
occurrence from her house and on reaching there, she saw accused, Sri
Babul Hazarika inflicting kick blows on Babu Das, and as a result he fell
down on the ground and then immediately accused, Sri Prakash Hazarika
struck a spear blow on the chest of Babu Das. She further deposed that after
seeing the occurrence, she started shouting and immediately her parents
arrived at the place of occurrence and Babu Das was immediately shifted to
North Lakhimpur Civil Hospital, and thereafter he was sent to hospital for
examination, and after examination he was declared dead. She further
deposed that during the course of investigation police seized the spear from
the house of Smti Debakanti Das (PW.5), which was used to cause assault
on Babu Das vide Mat. Ext.'Ka' and the Seizure List, Ext.3, and she put her
signature on the seizure list as a witness vide Ext.3(3). During cross
examination, it was suggested that on the day of occurrence, all her family
members including her husband, Sri Krishna Das, Sri Narayan Dutta and
Sri Ram Krishna Hazarika attacked the house of the accused persons and
ransacked their house and assaulted Babul Hazarika, and as a result he
sustained grievous injuries, which has been denied by the said witness. It
has further been suggested that she had not seen the occurrence due to
darkness and she has deposed falsely against the accused persons as the
deceased happened to be her elder brother, which has been denied by the
said witness.
19. Now, let me consider the evidence of PW.9, Md. Safiul
Hussain, who is one of the Investigating Officers of the case. The said
witness deposed that he took up further investigation of NLPS Case
Contd…
11
No.805/2008 u/s 341/ 302/ 34 IPC, and on perusal of the Case Diary and
relevant documents like Post Mortem Report, F.I.R., Seizure List etc. he
submitted the chargesheet against the accused persons u/s 341/ 302 / 34 IPC
vide Chargesheet (Ext.4). During cross examination, it was suggested that
without finding any material against the accused persons, he has submitted
the chargesheet, which has been denied by the said witness.
20. PW.11, Sri Dilip Dutta deposed that on 12.12.2008 he
was at North Lakhimpur PS as Officer-in-charge of the Police Station and
on that day, after receiving one F.I.R. Ext.1 from Sri Dilip Das, he endorsed
SI Bhaben Dutta to investigate the case, and during the course of
investigation, said Bhaben Dutta recorded the statements of the witnesses ,
prepared sketch map of the place of occurrence and also held inquest on the
dead body of the deceased with the help of Magistrate, Smti Kalpana Deka.
During the course of investigation, the said IO, Bhaben Dutta had seized
one spear (Posha) vide Mat. Ext.3 and subsequently the chargesheet was
filed after going through the Case Diary. He further deposed that the I.O. of
the case, SI Bhaben Dutta had already been expired and as he happened to
be the Officer-in-charge of North Lakhimpur PS at the time of investigation
of the case, he has deposed on behalf of the I.O. SI Bhaben Dutta. During
cross examination, he stated that regarding the same occurrence, accused,
Sri Babul Hazarika has also filed a case against the complainant side and he
has also exhibited certain photographs vide Ext.A, B, C, D, E and F of the
place of occurrence relating to demolition of the houses. During cross
examination, he denied to have made any statement by PW.4, Sri Papu Das
that he went to the place of occurrence after hearing hue and cries of Sri
Moina Das.
21. In support of the defence, the accused persons have
examined one witness, namely Smti Prabha Hazarika. The said witness
deposed that on the day of occurrence at 7.30 – 8.00 Pm, her husband, Sri
Babul Hazarika and daughter, Smit Sangita Hazarika were present in their
house and at that time, her son, Sri Prakash Hazarika was at his shop house
located at PWD colony, North Lakhimpur town, and at that time she was
Contd…
12
preparing to take their meal at night and they were just about to take their
food and at that time, informant, Sri Dilip Das and Sri Papu Das, Babu Das,
Smti Popi Das, Sri Ram Krishna Hazarika and Sri Pradip Saikia came to
their house armed with deadly weapon like 'lathi', 'dao', 'Posha' etc, and they
broke down the bamboo entrance door of their house by giving kick blow
and they entered into their house and the informant, Sri Dilip Das gave lathi
blow on the head of her husband, and thereafter the other accused persons
started assaulting them with the weapons and Babu Das tried to finish her
husband by giving axe blow and at this, she obstructed and pushed him
back and she somehow managed to escape alongwith her injured husband
and daughter, and rushed to the nearby North Lakhimpur PS. She further
deposed that the informant side started committing mischief in their
dwelling house and broke down their utensils, destroyed their clothes and
cut down the CI sheets and broke down their entire house. She further
deposed that while they were proceeding towards North Lakhimpur PS on
the way, she met Sri Biman Gogoi, the mate of his son and she narrated
about the occurrence and asked him to inform the matter to her son, and
subsequently they arrived at the police station. She further deposed that her
husband, Sri Babul Hazarika did not commit any offence and he has not
assaulted Babu Das and her son, Sri Prakash Hazarika at the relevant point
of time at his shop house situated at PWD colony, North Lakhimpur. During
cross examination, it was suggested that her son, Sri Prakash Hazarika
killed Babu Das with the help of a 'Posha', which has been denied by the
DW.
22. Mr. J.Gogoi, the learned P.P. during the course of
argument, submitted that the evidence of PW.1 has fully been supported and
corroborated by the remaining PWs, namely PW.3, Sri Ram Krishna
Hazarika, PW.4, Sri Papu Das, PW.5, Smti Debakanti Das, PW.7, Sri Pradip
Saikia and PW.8, Smti Popi Das in vital and material points and there is
nothing to disbelieve the evidence of the aforesaid witnesses. He further
argued that the informant, PW.1, Sri Dilip Das, PW.3, Sri Ram Krishna
Hazarika, PW.5, Smti Debakanti Das, PW.7, Sri Pradip Saikia and PW.8,
Contd…
13
Smti Popi Das are all eye witnesses of this case and they had seen the
occurrence of assault by the accused, Sri Prakash Hazarika on the person of
Babu Das with a spear (Posha). He further argued that one of the accused,
Sri Babul Hazarika has taken the plea of right of private defence by stating
that on the day of occurrence, the informant alongwith others came to his
house, demolished and ransacked his house and he was also assaulted by
the informant side, for which there was a bodily strive between both the
parties and as a result the deceased sustained injuries from the spear (Posha)
which was being carried by the informant side. In this regard, he submitted
that prior to this occurrence, there was a quarrel in between the two parties
for which accused, Sri Babul Hazarika had to file a criminal case against the
informant, Sri Dilip Das, his son, Sri Papu Das and Smti Debalata Das, his
wife, and that occurrence took place at about 7.30 pm, but the present
occurrence took place at about 8.30 pm i.e., after one hour. So, as the time
of occurrence of both the cases, are different so the plea taken by the
accused, Sri Babul Hazarika is not acceptable. He further argued that one of
the co-accused, Sri Prakash Hazarika has also taken the plea of alibi that at
the time of occurrence, he was away from the place of occurrence and he
was at his shop house, which is located at a distance of about 2 ½ km away
from his house. But, the accused failed to produce any material to show that
at the relevant point of time when the occurrence took place the accused
was at his shop house. He further argued that to prove the plea of alibi the
accused has examined one witness, Smti Prabha Hazarika, who is none but
his own mother, who is a highly interested witness and her evidence can not
be taken as reliable evidence. As the accused has failed to prove the plea of
alibi by producing cogent and convincing material, the plea of alibi can not
be accepted.
23. Controverting the above submission, Mr. Arup Bora, the
learned counsel appearing for the accused persons, during the course of
argument, submitted that the FIR disclosed the name of Sri Babul Hazarika,
Sri Prakash Hazarika and three others and while giving evidence by the
informant he has stated the names of the accused persons, namely Sri Babul
Contd…
14
Hazarika and Sri Prakash Hazarika. The eye witnesses, namely PW.1, Sri
Dilip Das, PW.3, Sri Papu Das, PW.4, Sri Ram Krishna Hazarika, PW.7, Sri
Pradip Saikia and PW.8, Sri Papu Hazarika have given two versions
regarding involvement of the accused persons with the commission of the
alleged offence. He further argued that when there are two versions
surfaced in a prosecution case, one contradicting the other, version which
favours the accused shall be accepted. In this context, he has relied upon the
decision of the Honourable Gauhati High Court, reported in (2013) 1
Gauhati Law Reports, 51 in case of Gani Miah and others – appellants vs.
State of Tripura – respondent. During the course of argument, he further
submitted that if two views are reasonably possible, one that the accused is
guilty and the other that he is innocent, then the benefit of doubt goes in
favour of the accused. In this context, he has relied upon the decision of the
Honourable Supreme Court, reported in 2011 SAR (Crl.) 367 SC in case of
K.P.Thimmappa Gowda – appellant vs. State of Karnataka, where the
Honourable Supreme Court in para-12 of the said judgment, observed as
follows : “In a criminal case, rule is that the accused is entitled to benefit of
doubt. If the court is of the opinion that, on the evidence of two views are
reasonably possible, one that the appellant is guilty, and the other that he is
innocent, then the benefit of doubt goes in favour of the accused”.
24. During the course of argument, he further submitted that
as the informant party entered into the house of premises of the accused
person and demolished and ransacked their house, so the accused, Sri Babul
Hazarika has every right to protect his body and property and he can
exercise the right of private defence to protect his body and property. In this
context, he has relied upon the decision of the Honourable High Court
reported in (1986) 2 Gauhati Law Reports 172 in the case of State of Assam
– appellant vs. Md. Manir Ali & ors. – Respondents, where the Honourable
Gauhati High Court has observed as follows : “A mere reasonable
apprehension is enough to exercise the right of private defence into
operation. The right is available against a danger, imminent, present and
real. The right is conferred to stop the other party from committing the
Contd…
15
offence. The right of private defence is codified in Section 96 to 100 IPC. If
acting in good faith, to preserve and conserve the property or to prevent the
offence against his property, actions are taken by a person, they do not
amount to offence as they fall within the provisions of Sec. 96 to 100 IPC.
25. Mr. Arup Bora, the learned counsel appearing for the
accused persons during the course of argument, further submitted that the
prosecution witnesses have not given the true picture of the occurrence and
they have not stated the whole truth. In such a case, the court should make
an effort to discengage the truth from the falsehood and to shift the grain
from the shaff. In this context, he has relied upon the decision of the
Honourable Supreme Court reported in AIR 1954 SC 31 (Vol.41 CN 12) in
case of Abdul Gani and others – appellants vs. State of Madhya Pradesh.
He further argued that on the same day of occurrence at the relevant point
of time, the accused persons have also instituted one criminal case against
the informant party for the alleged demolition and ransacking of their
dwelling house by the accused party and causing hurt to one of the accused,
Sri Babul Hazarika and the occurrence took place in the premises of the
accused persons. So, in such a case, the informant party is the aggressor and
in such a case, the accused persons have got every right to exercise their
right of private defence of their body and property. He further argued that
the accused, Sri Babul Hazarika also sustained injuries on his person and
there was no explanation from the prosecution side as to how the accused,
Sri Babul Hazarika sustained injuries on his head. So, non-explanation of
the injuries on the accused is fatal to the prosecution case. In this context,
he has relied upon the decision of the Honourable Supreme Court reported
in 2003(5) CRJ 403 Supreme Court of India. State of Madhya Pradesh –
appellant vs. Mishrilal (dead) and others – respondents. He has also relied
upon the decision of the Honourable Gauhati High Court reported in 1981
Cri.LJ. NOC 4 (Gauhati) in case of State of Assam – appellant vs. Sofiuddin
Sheikh and others – respondents, where the Honourable Gauhati High Court
observed as follows : “In a murder case, non-explanation of the injuries
sustained by the accused at about the time of occurrence or in the course of
Contd…
16
altercation is a very important circumstance from which the court can draw
the following inference : (i) That the prosecution has suppressed the genesis
and the origin of the occurrence and as thus not presented the true version.
(ii) That the witnesses should have denied the presence of the injuries on
the person of the accused are lying on a most material point and therefore
their evidence is unreliable. (iii) That in case there is a defence version
which explains the injuries on the person of the accused it is rendered
probable so as to throw doubt on the prosecution case. The omission on the
part of the prosecution to explain the injuries on the person of the accused
assumes much greater importance where the evidence consists of interested
or inimical witnesses or where the defence gives a version which competes
in probability with that of the prosecution one.
26. Mr. Arup Bora, the learned counsel appearing for the
accused persons, during the course of argument, further submitted that for
exercising the right of private defence, it is not necessary that the party
exercising it must actually receive some injury at the hands of the aggressor.
It is a preventive and not punitive right. He further submitted that in the
instant case, however the accused, Sri Babul Hazarika has sustained certain
injuries on his head, so the accused has every right to exercise the right of
private defence to protect his body. In this context, he has relied upon the
decision of the Honourable Supreme Court reported in AIR 1973 SC 473
(V.60 C.92) in the case of Deo Narain- appellant vs. State of Uttar Pradesh
– respondent. He further argued that in the instant case there is no evidence
to show that there was meeting of mind between the accused persons and as
such Section 34 IPC has no application in this instant case. In support of his
argument, he has referred the decision of the honourable Supreme Court
reported in 2009 SAR (Criminal) 733 in case of Javed Alam – appellant vs.
State of Chattisgarh and another – respondents. He further argued that
where a person has genuine apprehension that his adversary is going to
attack him and he reasonable believe that attack will result in grievous hurt
in that event he can go to the extent of causing the latter's death even though
the latter may not have inflicted any injury on him. In this regard, he
Contd…
17
has relied upon the decision of the Honourable Supreme Court reported in
2010 SAR (Criminal) 201 SC in case of Darshan Singh -appellant vs. State
of Punjab and another.
27. I have perused the entire legal evidence on record and
heard Mr. J.Gogoi, the learned P.P. for the State, and Mr. Arup Bora, the
learned counsel appearing for the accused persons.
28. On perusal of the entire legal evidence on record, it
appears that on the day of occurrence, the accused persons have also
instituted one criminal case against the informant and others with the
allegation of assault and destroying their dwelling house, and the record of
that case has been called for by this court on the prayer of the accused
persons, and on perusal of both the case records, this court vide Order dtd.
18.09.20013 disposed the petition so filed by the accused persons. The
operative part of the Order speaks as follows - “From the record of GR
Case No.1569/2008, it appears that the case was registered and initiated on
the basis of the FIR lodged by Sri Babul Hazarika against Sri Dilip Das
and two others alleging that on 11.12.2008 at about 7.30 Pm, all the
accused persons in a body came to his house armed with deadly weapons
like lathi, dao etc. and assaulted him and his wife, and also his daughter,
Smti Sangita Hazarika and caused grievous injuries on his person, and to
that effect police investigated into the case and submitted chargesheet vide
CS no.435/2012 dtd. 29.09.2012 in FIR No.803/2008 dtd. 12.12.2008 u/s
448/ 352/ 427/ 34 IPC. I have also perused the connected record of
Sessions Case No.67(NL)2010. It appears that informant, Sri Dilip Das
lodged one FIR against the accused, Sri Babul Hazarika and Sri Prakash
Hazarika and two others alleging that on 11.12.2008 while he was
proceeding from the market towards his home at about 8.30 pm, the
accused persons restrained him on the way with lathi, dao and spear and
assaulted him on his person and when he raised objection, his son, Babu
Das and son-in-law, Sri Papu Das came to the place of occurrence and
tried to save him, but the accused persons severally assaulted him with
spear and caused death to him. It appears that after concluding the
investigation, police has submitted Contd…
18
chargesheet vide CS No.405 dtd. 31.10.2009 in FIR No.805/2008 dtd.
12.12.2008 u/s 341/ 302/ 34 IPC. Now, on scrutiny and on perusal of both
the cases, it appears that the place of occurrence and time of occurrence
are also different. As such, both the cases can not be taken up as cross
cases. As such, the called for record of GR Case No.1569/2008 be sent back
to the learned Chief Judicial Magistrate, Lakhimpur, for trial.”
29. So, the case, which has been filed by the accused persons
can not be treated as cross case as the two cases are not related to the same
incident. The case, which was filed by the accused persons took place about
one hour before the occurrence of the present case and not connected with
one incident. In Dahabhai Chhanganbhai Thakkar vs. State of Gujarat
reported in AIR 1964 SC 1563, the Honourable Supreme Court has
observed as follows : “It is the fundamental principle of Criminal
Jurisprudence that the accused is presumed to be an innocent and therefore
the burden lies on the prosecution to prove the guilt of the accused beyond
reasonable doubt. The prosecution, therefore, in a case of homicide shall
prove beyond reasonable doubt that the accused has caused death with the
requisite intention described in Section 299 of the Penal Code. Generally
the burden never shift and it always rest on the prosecution. But under
section 165 of the Evidence Act, burden of proof extending of the
circumstances bringing the case within the exception lies on the accused
and the court shall presume the absence of such circumstance. Under
Section 105 of the Evidence Act, 1872, the burden of proof is on the
accused, who set up the plea of self defence and in the absence of proof, it
is not possible for the court to presume to truth of the plea. In Jaydev vs
State of Punjab reported in AIR 1963 SC 612, it was observed that as soon
as the cause for reasonable apprehension disappears and the threat has
either been destroyed or has been put to route there can be no occasion to
right of private defence.”
30. In my considered opinion, this was a case of intentional
murder and not something done in exercising the right to protect the body
and property of the accused persons, for which the accused persons are not
Contd…
19
entitled to get protection under the right of private defence. In this instant
case, one of the accused namely Sri Prakash Hazarika has taken the plea of
alibi that on the day of occurrence at the relevant point of time, he was at
his shop house, which is located at a distance of about 2 ½ km away from
the place of occurrence. In such a situation, prosecution has to discharge the
burden satisfactorily. Once the prosecution is successful in discharging the
burden it is the incumbent on the accused who takes the plea of alibi to
prove it with absolute certainty. It is the rule of evidence recognised by
Section 11 of the Evidence Act that facts inconsistent with the facts in issue
are relevant. When the accused took the plea of alibi, the burden of proof
lies on him u/s 103 of the Evidence Act. The plea of alibi is the weakest
type of plea and can not be given any weight unless the same is proved
from very cogent, convincing and plausible evidence. The accused raising
the plea of alibi has to discharge the burden by producing satisfactory,
reliable and authenticate evidence that his presence at the place of
occurrence at the relevant point of time was not possible because of his
presence at the relevant point of time at other place. In a case of Abdul Hai
and others vs. State of Assam, reported in Gauhati Law Reports 2007 (275),
the Honourable Gauhati High Court observed as follows : “The plea of alibi
can be accepted only when it is shown that it was impossible for the
accused to be present at the place where the crime was committed”. Now,
let me examine how the accused has proved the plea of alibi by adducing
any cogent and authenticate evidence that at the relevant point of time, he
was at other place and not at the place of occurrence. To prove the said fact
the accused, Sri Prakash Hazarika has examined only one defence witness
as DW.1, who is his mother. DW.1, Smti Prabha Hazarika, who has stated
that at the relevant point of time, the informant and others came to her
house, demolished and ransacked her dwelling house and assaulted her
husband accused, Sri Babul Hazarika, and at that time, her son accused, Sri
Prakash Hazarika was at his shop house which is located at PWD Colony,
about 2 ½ km away from the place of occurrence, and after the occurrence
when she was proceeding towards North Lakhimpur PS on the way, she met
Contd…
20
one Sri Biman Gogoi, one of the friends of her son, and through said Biman
Gogoi, she had informed the matter to her son, Sri Prakash Hazarika, but
said Biman Gogoi was not examined by the defence to prove the said fact.
It appears that the DW is a highly interested witness and in absence of any
satisfactory, reliable and authenticate evidence, it can not be said that at the
relevant point of time the accused, Sri Prakash Hazarika was not at the
place of occurrence and he was in another place at the relevant point of
time. So, after going through the entire legal evidence on record, I constrain
to hold that the accused failed to prove the plea of alibi by producing
satisfactory, reliable and authenticate evidence, for which the plea of alibi
taken by accused, Sri Prakash Hazarika is rejected.
31. In this instant case, one of the accused, Sri Babul
Hazarika has taken the plea of right of private defence of his body and
property and to substantiate that plea, he has examined his wife, Smti
Prabha Hazarika as DW.1, who deposed that on the day of occurrence, the
informant and others came to his house, demolished and ransacked his
dwelling house and also assaulted her husband, Sri Babul Hazarika and to
that effect, Sri Babul Hazarika had lodged one case against the informant
and others and at that time, co-accused, her son, Sri Prakash Hazarika was
away from home as he was at his shop house situated at a distance of 2 ½
km away from the place of occurrence.
32. I have perused the entire legal evidence on record. It
appears that prosecution has examined as many as 11 witnesses, out of
which PW.1, Sri Dilip Das, who is the eye witness of this case. The said
witness categorically deposed that on the day of occurrence while he was
alongwith Sri Ram Krishna Hazarika returning back home from the market
on foot and on the way in front of the house of the accused persons, both
the accused, namely Sri Babul Hazarika and Sri Prakash Hazarika
wrongfully restrained them on the way, and the accused, Sri Prakash
Hazarika struck a blow by a 'Posha' (an iron pointed object with handle ) on
the right side of the chest of his son, Babu Das, which crossed through his
body and he immediately fell down and succumbed to his injuries at the
Contd…
21
place of occurrence. The said fact has also been supported and corroborated
by another witness, Sri Ram Krishna Hazarika, who was also accompanying
the informant, Sri Dilip Das at the time of occurrence. The said witness, Sri
Ram Krishna Hazarika has categorically deposed that on the day of
occurrence at the relevant point of time, while he alongwith Sri Dilip Das
were proceeding from the market, on the way, they were intercepted by the
accused persons, Sri Babul Hazarika, Sri Prakash Hazarika and Smti Prabha
Hazarika, and thereafter the accused, Sri Prakash Hazarika came and struck
a blow on the chest of Babu Das by a 'Posha', which pinched the chest of
Babu Das and they fled away from the place of occurrence. The evidence of
PW.3 has been also supported and corroborated by PW.4, who is the eye
witness of this case. The said witness has categorically deposed that
accused, Sri Babul Hazarika gave kick blow to Babu Das and as a result he
fell down on the ground and thereafter other accused, Sri Prakash Hazarika
struck one 'Posha' blow on the chest of Babu Das, which caused him to
death. PW.5, Smti Deva Kanti Das is also a vital witness of this case. The
said witness has deposed that she saw the occurrence with her own eyes that
the accused, Sri Babul Hazarika dragging Babu Das towards his house and
accused, Sri Prakash Hazarika struck a spear blow on the chest of Babu Das
and immediately Babu Das fell down on the ground and blood was oozing
out from the chest. The said witness further deposed that she picked up the
spear and took the same to their house and she showed the spear which was
used in the commission of the offence to police, and accordingly police
seized the spear vide Ext.3, seizure list, and she put her signature in the
seizure list vide Ext.3(1). PW.7, Sri Pradip Saikia is also an eye witness of
the occurrence. The said witness has categorically deposed that on the day
of occurrence, he heard noise in front of the house of accused persons and
he went to the place of occurrence and on reaching there, he noticed that
accused, Sri Prakash Hazarika alongwith Sri Babul Hazarika involved in
altercation with Babu Das, and thereafter accused, Sri Prakash Hazarika
inflicted a blow with a 'Posha' on the abdomen of Babu Das, as a result of
which Babu Das fell down on the ground. PW.8, Smti Popi Das is also an
Contd…
22
eye witness of this case, who categorically deposed that she saw accused,
Sri Babul Hazarika inflicting kick blows on Babu Das and as a result Babu
Das fell down on the ground, and then immediately accused, Sri Prakash
Hazarika struck 'Posha' blow on the chest of Babu Das. In this instant case,
there may be a slight contradiction in the evidence of prosecution witnesses,
but in my considered opinion that can not demolish the prosecution case. In
a Case Law reported in 2002(6) SCC 81 in Kushi Muchi and others vs.
State of Bihar, the Honourable Supreme Court observed that “in a criminal
trial even after major portion of the evidence is found to be deficient in a
case the residue is sufficient to prove the guilt of the accused,
notwithstanding acquittal of a number of other co-accused persons his
conviction can be maintained. It is the duty of the court to separate the
grain from chaff, where the chaff can be separated from the grain, it would
be open for the court to convict accused notwithstanding the fact that the
evidence has been found to be deficient to prove the guilt of other accused
persons. Falsity of particular material witnesses or material particular
would not ruin the prosecution case from the beginning to the end, it
observed. The Apex Court further held that one hardly come across a
witness whose evidence does not contain a grain of untruth or at any rate
exaggeration, embroidery or embellishment and attempt has to be made to
separate grain from the chaff, the truth or falsehood commenting the duty
of the court in a criminal trial. It observed that some discrepancies which
would be therein list each and every case it should not weigh with the court
so long it does not materially affect the prosecution case. In a case,
discrepancies pointed out which is the realm of pebbles, the court should
treat upon it, if the same are boulders the court should not make an attempt
to jump over the same.” In this context, the Honourable Apex Court
referred to its observation in its earlier decision rendered in Indore Singh vs
Delhi administration, reported in 1978 SCC 161 to that effect that proved
beyond reasonable doubt is a guideline, not a fattish and a guilty man can
not get away with it because truth suffers from some infirmity when
projected through human process. Contd…
23
33. Considering the entire evidence on record, I find and
hold that the prosecution has variably proved this case against the accused
persons, namely Sri Babul Hazarika and Sri Prakash Hazarika u/s 341/ 302/
34 IPC, and accordingly, I find both the accused guilty under the aforesaid
Sections of Law, and accordingly I convict both the accused persons, Sri
Babul Hazarika and Sri Prakash Hazarika under the said Sections of Law.
HEARING ON THE POINT OF SENTENCE
34. I have heard the accused persons, namely Sri Babul
Hazarika and Sri Prakash Hazarika on the point of sentence, which may be
passed against them u/s 341/ 302/ 34 IPC. The statements of both the
convicts, namely Sri Babul Hazarika and Sri Prakash Hazarika have been
recorded in separate sheets of paper and tagged with the record as provided
u/s 235 CrPC.
35. The learned Public Prosecutor has not placed any record
of previous conviction of the accused persons. There has been no previous
submission in respect of any criminal antecedents of the accused persons.
SENTENCE
36. I have considered all the aspects and the attending
circumstances. I am of the view that the facts and circumstances of the case
do not warrant the extreme sentence of capital punishment as it does not fall
under the category of the rarest of rare cases. Only alternative sentence u/s
302 IPC is that LIFE IMPRISONMENT.
37. Accordingly, accused persons, namely Sri Babul
Hazarika and Sri Prakash Hazarika are, hereby, sentenced to undergo
imprisonment for life and also to pay fine of Rs.5,000/- (Rupees Five
Thousand) only each, i.d., Rigorous Imprisonment for 3 (Three) months
each for the offence u/s 302 IPC, and also to suffer Rigorous Imprisonment
for one month each for the offence u/s 341 IPC.
38. Both the sentences shall run concurrently. The period
already undergone by the accused as UTP shall be set off as provided u/s
428 CrPC.
Contd…
24
39. The bailbond shall stand discharged.
40. A free copy of the Judgment be furnished to the accused
persons as provided u/s 363 CrPC.
Judgment is pronounced and delivered in open court
under seal of this Court with my signature on this 5th day of May, 2014.
(A.K.Das) Sessions Judge,
Lakhimpur, North Lakhimpur.Dictated & corrected by me -
(A.K.Das)Sessions Judge,Lakhimpur, North Lakhimpur.
Transcribed & typed by-S.Kshattry, Stenographer.
A P P E N D I X
PROSECUTION WITNESSES :
PW.1 - Sri Dilip Das.PW.2 - Sri Krishna Das. PW.3 - Sri Ram Krishna Hazarika.PW.4 - Sri Papu Das.PW.5 - Smti Deba Kanti Das.PW.6 - Sri Niranjan Dutta.PW.7 - Sri Pradip Saikia.PW.8 - Smti Popi Das.PW.9 - Md. Safiul Hussain, I.O.PW.10 –Dr. Gunin Kumar Gogoi, M.O.PW.11 – Sri Dilip Dutta, the then OC of North Lakhimpur PS.
Contd...
25
List of Exhibits :
Ext.1 - F.I.R. Ext.2 - Inquest Report.Ext.3 - Seizure List.Ext.4 - Chargesheet.Ext.5 - Post Mortem Report.Ext.6 – Sketch map of the place of occurrence. Ext.A - Requisition letter.Ext.B, D & E- Photographs of the place of occurrence.Ext.A, C & F– Photographs of the deceased.
(A.K.Das) Sessions Judge,
Lakhimpur, North Lakhimpur.
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