Monomohan Baruah @ Monoranjan ... vs The State Of Assam And Anr
2021 Latest Caselaw 1969 Gua

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GAHC010057592018




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

                                 Case No. : Crl.A./176/2018

            MONOMOHAN BARUAH @ MONORANJAN BARUAH
            S/O SRI KHARGESWAR BARUAH VILLAGE DEWAN GAON, PO NORTH
            BAITAMARI, PO BONGAIGAON DISTRICT BONGAIGAON ASSAM PIN
            783380



            VERSUS

            THE STATE OF ASSAM AND ANR
            REPRESENTED BY THE P.P. ASSAM

            2:SRI KHARGESWAR BARUAH
             S/O LATE HARESWAR BARUAH VILLAGE DEWAN GAON
             PO NORTH BAITAMARI
             PO BONGAIGAON DISTRICT BONGAIGAON ASSA

Advocate for the Petitioner    : MR. U K DAS

Advocate for the Respondent : PP, ASSAM

BEFORE HONOURABLE MR. JUSTICE SUMAN SHYAM HONOURABLE MR. JUSTICE PARTHIVJYOTI SAIKIA

JUDGMENT AND ORDER (Oral) Date : 25-08-2021

(Suman Shyam, J)

Heard Mr. U. K. Das, learned counsel appearing for the appellant. We have Page No.# 2/9

also heard Ms. B. Bhuyan, learned Additional Public Prosecutor, Assam, appearing for

the State/respondent No.1. None has appeared for the informant/respondent No.2.

2. The sole appellant Monomohan Baruah @ Monoranjan Baruah has challenged

the judgment and order dated 18.12.2017 passed by the learned Sessions Judge,

Bongaigaon in connection with Sessions Case No.2(BGN)/2016 whereby he was

convicted under Section 302 IPC for committing the murder of his elder brother

Mantu Baruah and sentenced to undergo rigorous imprisonment for life and also to

pay fine of Rs.5000/- and in default, undergo rigorous imprisonment for another two

months.

3. The prosecution case, in a nutshell, is that on 20.09.2010 the accused

Monomohan Bauah, armed with a crowbar, had arrived at the house of Sri

Rabilochan Nath (PW-2) and assaulted him on his head causing grievous injury. The

victim was shifted to the hospital in a 108 ambulance but after a few days, he had

succumbed to his injuries.

4. The informant in this case is Sri Khargeswar Baruah, who is the father of the

accused as well as the deceased. On 22.09.2010, PW-1 had lodged an ejahar before

the Officer-in-Charge, Bongaigaon Police Station reporting the said incident. Upon

receipt of the ejahar, Bongaigaon P.S. Case No.445/2010 was registered under

Section 326/307 IPC and S.I. Sri Sailen Kalita was entrusted with the task of carrying out

the investigation in connection with the aforesaid police case. However, after the

death of the victim in the hospital, section 302 of the IPC was added. Upon

completion of investigation, the I.O. had submitted charge-sheet against the Page No.# 3/9

appellant, based on which charge was framed against him under Section 302 of the

IPC. The appellant/accused had pleaded innocence and claimed to be tried. As

such, the matter went for trial.

5. In order to bring home the charge brought against the appellant, the

prosecution side has examined as many as 10 witnesses including the doctor (PW-6)

who had conducted autopsy on the dead body and the I.O. (PW-10) who had

conducted investigation and submitted charge-sheet. Based on the evidence

brought on record, the learned Sessions Judge had held that the prosecution had

succeeded in establishing the charge brought against the appellant/accused

beyond reasonable doubt. Accordingly, by the impugned judgment and order

dated 18.12.2017 the appellant was convicted and sentenced as aforesaid.

6. There is no eye-witness in this case and the prosecution case is entirely based

on the circumstantial evidence. The incident occurred in the residence of Sri

Rabilochan Nath i.e. PW-2 and he had seen the accused at the place of occurrence

immediately after the incident. Therefore, although not an eye-witness, PW-2 is a key

witness in this case and his testimony has also been heavily relied upon by the

learned trial court for convicting the appellant.

7. PW-2, Sri Robi Lochan Nath, has deposed before the court that the deceased

Mantu Baruah was his friend and both of them used to do masonry work together.

The incident took place in the year 2010. On that day, around 8.30 p.m. the

deceased and he was having a talk on the verandah of his house. As the night

progressed, the members of his family went to bed after diner and both of them were Page No.# 4/9

talking to each other. At that time, deceased Mantu wanted to have betel nut. So he

had come inside the house to fetch betel nut. While he was inside the house, he

heard a sound as if someone was assaulted. Then he came out of the house and saw

that Mantu Baruah had fallen down on the ground and the accused Monomohan

Baruah was standing there, armed with a crowbar. Blood was oozing out from the

neck of Mantu Baruah. Then he had pushed Monomohan asking him as to what had

he done. Monmohan went out of his house taking the crowbar along with him. He

then sounded an alarm. The members of his family woke up and arrived there. He

went out of his house with the intention to give information in the house of Mantu and

also called his neighbour Govinda Sutradhar and asked him to call a 108 ambulance.

PW-2 has also stated that on reaching the house of Mantu he met Monmohan's wife

and after giving her the information, he had returned home. While returning home, he

had called other people whom he had met on the way. When the 108 ambulance

had arrived and the brother of Mantu arrived at his house, the victim was taken to

the hospital. Later on, Mantu died in the hospital. During his cross-examination, the

testimony of this witness could not be shaken.

8. PW-2 is not a member of the victim's family and there is nothing on record to

indicate any reason as to why he would give false evidence to implicate the brother

of the victim. On a careful reading of his testimony, we find that the evidence of PW-2

is consistent and the same appears to be truthful.

9. As mentioned above, PW-1, Sri Khargeswar Baruah i.e. the informant in this

case is the father of the accused as well as the victim. PW-1 has deposed that on the Page No.# 5/9

day of the incident the accused, armed with a crowbar, went in search of his second

son (Mantu Baruah) with the intention to kill him. Later, the PW-2 came to his house

and informed that accused Monmohan has struck Mantu on his head with a crowbar

in his house while he was sitting on the verandah of the house of PW-2. Mantu Baruah

was shifted to the hospital in injured condition but after undergoing treatment at the

Bongaigaon Civil Hospital, he died. The ejahar was lodged two days after the

incident since he was busy in connection with the treatment of Mantu Baruah.

10. PW-3, Smti Ratneswari Baruah, is the mother of the accused as well as the

deceased. She has deposed that a quarrel took place with Mantu Baruah for not

paying money for maintenance of the family. On the day of the incident, PW-2 came

to their house and informed that Mantu had a fight with the accused Monmohan

where Mantu had sustained injuries. She then went to the house of PW-2 but by that

time Mantu had already been taken to the hospital.

11. PW-4, Smti Sima Nath, is the wife of PW-2. She has deposed that on the night of

the incident when she was sleeping along with her child in the evening hours, her

husband had told her that accused Monmohan had assaulted Mantu Baruah in their

verandah. Then she got up and came there. In the meanwhile, 108 ambulance had

arrived and Mantu was taken away. During her cross-examination, PW-4 has stated

that her husband never told her as to how the incident had happened.

12. PW-5, Dilip Barman, was serving as the Secretary of Dewangaon Gaon

Committee. He has deposed that on the day of the incident at about 7.00 p.m. in the

evening while he was standing on the road, PW-2 had told him that accused Page No.# 6/9

Monmohan had struck Mantu Baruah. Then he went to the place of occurrence i.e.

the house of PW-2 and saw Mantu Baruah lying there in an injured state. This witness

has stated that 108 ambulance had been called before he had reached the place

and after his arrival the ambulance came and took the injured to the hospital. Later

on, Mantu Baruah had expired.

13. PW-7, Rabi Lochan Boruah, is one of the brothers of the accused and the

victim. He had deposed that on the day of the incident at around 8/8.30 p.m. when

he went to bed after having his meal, his neighbour PW-2 came and informed that his

brother Mantu Baruah had been assaulted. Then he went to the house of PW-2 and

found Mantu in an injured condition. PW-8, Sri Khargeswar Boruah, is another brother

of the deceased and he has also deposed in similar lines. Likewise, PW-9, Dhruba

Baruah, another brother of the accused and the deceased, has adduced evidence

which is consistent with the version of his other two brothers. The testimony of these

witnesses had remained unshaken during their cross-examination.

14. PW-6, Dr. Diganta Choudhury, was the Medical & Health Officer on duty at the

Bongaigaon Civil Hospital on 23.09.2010 and he had conducted autopsy on the

dead body. According to the post-mortem report, there was one cut injury (3 x 2 cm)

medial to the right shoulder and another cut injury on left parietal region of scalp of

size (7 x 3 x ½ cm). According to the doctor's opinion, the cause of death was due to

shock and haemorrhage as a result of head injury caused by sharp weapon which

was ante mortem in nature. The PW-6 has proved his signature in the post-mortem

report as Ext-1.

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15. PW10, Sri Sailen Kumar Kalita, is the Investigating Officer (I.O.) in this case. From

the testimony of the I.O. it appears that upon receipt of the ejahar, Bongaigaon P.S.

Case No.445/10 was registered and thereafter, the matter was taken up for

investigation. The I.O. has confirmed that PW-1, Khargeswar Baruah, is the informant in

this case. He has deposed that the injured person had died in the Bongaigaon Civil

Hospital while undergoing treatment. PW-10 has also stated that he had conducted

inquest on the dead body and thereafter, had sent it for post-mortem examination.

He had also got the statement of PW-2 recorded under Section 164 Cr.P.C. Upon

completion of investigation, he had submitted charge-sheet against the accused

under Section 302 IPC. During his cross-examination, PW-10 had admitted that he did

not find the crowbar that was used in the incident. He also did not search the house

of PW-2 for the crowbar since he was told that the accused had fled along with the

crowbar.

16. Mr. Das, learned counsel for the appellant, has argued that the failure on the

part of the I.O. to recover the crowbar i.e. the weapon of assault coupled with

discrepancies in the testimony of witnesses has caused a serious dent on the

prosecution case, the benefit of which, must go in favour of the appellant/accused.

17. Opposing the said submission, Ms. Bhuyan, learned Addl. P.P., has argued that

the prosecution has succeeded in establishing the chain of circumstances in this case

by adducing cogent evidence which goes to show that it is none other than the

accused/appellant who had fatally assaulted his brother Mantu Baruah and caused

grievous injuries in his head which has resulted into his death.

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18. As noted above, PW-2 is the key witness in this case and the incident

admittedly took in the verandah of his house when he was chatting with the

deceased Mantu Baruah during the evening hours of the day. This witness has

categorically deposed that while he went inside to fetch betel nut at the request of

the deceased then he heard a sound of someone assaulting and immediately came

out to the verandah and saw the accused standing there with a crowbar and the

victim Mantu Baruah was bleeding profusely. The aforesaid evidence of the PW-2 has

not been challenged by the defence side during his cross-examination.

19. The post-mortem report Ext-1 and the evidence of the doctor (PW-6) clearly

establishes the fact that the deceased had died a homicidal death due to the ante-

mortem injuries suffered by him on his head.

20. It may be noted herein that the witnesses PWs-1, 3, 7, 8 and 9 are all related to

the accused and the victim. There is nothing on record to indicate any oblique

motive on the part of these witnesses to falsely implicate the appellant in the

incident. Conjointly read with the testimony of PW-2 the evidence adduced by PWs-

1, 3, 7, 8 and 9 appears to be consistent and corroborates the version given by one

another.

21. In his statement recorded under section 313 Cr.P.C., the appellant had denied

of having gone to the house of PW-2 on the day of the incident but he did not

adduce any evidence to prove the said fact. Moreover, in response to Question No.7

the appellant had stated that sometimes the deceased Mantu Baruah used to pick

up quarrel with him and used to scold him for not paying the household expenditure.

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From a meticulous examination of the evidence on record, we find that there was a

quarrel between the appellant and the deceased over non-payment of household

expenditure and therefore, the motive behind the incident is also clearly established.

22. For the reasons mentioned herein above, we find ourselves in agreement with

the conclusion drawn by the learned trial court that the prosecution has succeeded

in establishing the charge brought against the appellant beyond reasonable doubt.

23. In view of the above, this appeal is held to be devoid of any merit and is

accordingly dismissed.

Send back the LCR.

                               JUDGE                              JUDGE



Comparing Assistant