Lakhya Jyoti Bora vs The State Of Assam
2021 Latest Caselaw 1085 Gua

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GAHC010212062019




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

                                  Case No. : CRL.A(J)/72/2019

            LAKHYA JYOTI BORA
            S/O. LT. LOHIT BORA, R/O. KOLAKHOWA GAON, SANTIPUR, P.S. JORHAT,
            DIST. JORHAT, ASSAM.



            VERSUS

            THE STATE OF ASSAM
            REP. BY PP, ASSAM.



Advocate for the Petitioner    : MR A TIWARI, AMICUS CURIAE

Advocate for the Respondent : PP, ASSAM

BEFORE HONOURABLE MR. JUSTICE AJIT BORTHAKUR

Date : 22.03.2021

JUDGMENT & ORDER (ORAL)

Heard Mr. A Tiwari, learned Amicus Curiae appearing for the appellant. Also heard Mr. B.B. Gogoi, learned Additional Public Prosecutor, Assam appearing for the State respondent.

This jail appeal is preferred against the Judgment and Order, dated 15.11.2018, passed by the learned Sessions Judge, Jorhat in Sessions Case No. 61(J-J)/2018.

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The prosecution case in brief is that on 24.12.2017, one Rajib Likhok , who is the Government Gaonbura of Kolakhowa village, lodged an ejahar before the In-charge of Bhogdoi OP under Jorhat Police station, alleging, inter-alia, that on that day the accused/appellant attempted to murder his mother Guneswari Bora. The villagers noticed the accused assaulting his mother. The villagers rushed to the residence of the accused and got his mother freed from his clutches. She was shifted to Jorhat Medical College and Hospital (JMCH) for medical treatment. Further allegation was that after the incident, the accused created nuisance at home and in the nearby area.

Based on the above FIR, a General Diary Entry was made at Bhogdoi Police Outpost vide No.397, dated 24.12.2017 and on being forwarded, registered as Jorhat PS Case No.2711/2017 under Sections 325/326 of the IPC. After completion of investigation, police submitted charge-sheet against the accused under Sections 325/326/302 of the IPC against the accused as Guneswari Bora succumbed to her injuries later on during treatment at JMCH on 28.12.2017. As the case is exclusively triable by the court of Sessions, the learned Chief Judicial Magistrate, Jorhat committed the case to the Court of learned Sessions Judge, Jorhat for trial. The charges were framed under the Sections as charge-sheeted vide order, dated 18.05.2018 by the learned Sessions Judge, Jorhat. The accused pleaded not guilty and claimed to be tried.

In order to establish the charges, the prosecution examined 11 witnesses and exhibited 6 documents. On closing the evidence of the prosecution side, the statement of the accused under Section 313 Cr.P.C. was recorded on 29.09.2018. The accused reiterated his innocence and declined to examine any witness in defence. Then, on hearing the arguments of the learned counsel of both sides and appreciation of the evidence, the learned Sessions Judge convicted and sentenced the accused to undergo R.I. for 10 years and to pay fine of Rs.10,000/- in default of payment of fine to suffer R.I. for another 6 months u/s 326 of the IPC. The accused was acquitted of the charges under Sections 325/302 of the IPC.

I have given due consideration to the submissions made by the learned counsel of both the sides and perused the records including the impugned judgment and order of the learned trial court.

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Now let us look to the evidence on records.

PW-1 Rajib Likhok is the informant and neighbour of the deceased and accused. His version is that the incident occurred about 5 months ago. At the relevant time of the incident, he was inside his house. He was informed by the villagers about the incident after 5/6 hours. He went to the house of the accused in the night. In the meantime, police arrived. In connection with the incident, he filed an FIR, Exhibit-1. Police seized one wooden batten, Material Exhibit-1 from the house of accused by seizure memo Exhibit-2. He stated that he came to know from the villagers that an incident of altercation took place between the accused and his mother and out of anger the accused dealt blows by a wooden batten. In cross-examination, he inter-alia stated that there was no strain relationship between the accused and the villagers. Frequent altercations used to take place between the accused and his mother in the house.

PW-2 Deben Borah is a neighbour. His evidence is that the deceased was his related sister-in-law. He heard hue and cry in the house of the accused and witnessed the mother of accused running out of the house and falling down in the courtyard of her house. Witnessing the incident, he went towards the 'namghar' and informed the incident to the villagers and accordingly, after the incident, the villagers arrived. He saw the police removing away the injured along with the accused to the police station. The police seized one wooden batten, Material Exhibit-1 in his presence byExhibit-2, the seizure memo. In cross-examination, he inter-alia stated that he did not witness the incident of assault upon the deceased by the accused. The elder daughter of deceased, namely, Akoni Bora was present in the house at the relevant time of the incident.

PW-3 Rupeshwar Borah stated that at the time of the incident he was at 'namghar' and heard hue and cry and came to know that the accused killed his mother. He did not come out of the 'namghar'. On the next day, when he visited the police station, his signature was obtained on the seizure memo, Exhibit-2. He has no personal knowledge about the incident.

PW-4 Dr.Ved Prakash Gupta is the doctor, who performed the post-mortem examination on the body of the deceased Guneswari Bora, aged about 60 years and found as Page No.# 4/6

follows:

" Death was due to coma as a result of head injury sustained as described. All the injuries were antemortem and caused by blunt force impact.

Approximate Time since death- 4--8 hours"

The doctor recognized Exhibit-3, the post-mortem report.

In cross-examination, he inter-alia stated that the injuries which he found on the body of the deceased were old and those were partially healed. Due to the aforesaid injuries, there was internal injury in the head of the deceased. The injuries may be caused due to fall on hard substance too.

PW-5 Rebika Bora is also a neighbour. Her version is that on 24.12.2017, the incident took place and at that time she was in the village 'namghar.' She heard hue and cry of the villagers and thereupon, she came out of the 'namghar.' She came to know from the villagers that the accused had killed his mother with a wooden batten. She went to the house of the accused and saw the mother of accused lying on the floor of the house with blood stains over her whole body. Police arrived and shifted the injured to the hospital for medical treatment. Her son Mandip Kashyap Borah accompanied the police to the hospital. Police also took the accused to the police station. She did not enquire from the accused regarding the incident. The accused used to threaten his mother that he would kill her. She did not witness the incident of assault by the accused upon his mother.

PW-6 Abanita Borah is a neighbour. Her evidence is that on 24.12.2017, at about 12.30 pm, the incident took place. At the time of the incident, she was in the village 'namghar.' She heard hue and cry in the house of the accused. She came to know from the villagers that the accused had killed his mother. She visited the house of the accused and saw his mother lying on the floor of the house. The prosecution declared this witness as hostile.

PW-7 Buli Bora inter-alia deposed that on the day of the occurrence, she was present at her house. On hearing hue and cry in the house of the accused, she did not come out of the house. When police arrived, she came to know from the villagers who gathered at the house of the accused that the mother of the accused was shifted to the hospital by police for Page No.# 5/6

treatment. Later on, he came to know that the accused had killed his mother with the help of a wooden batten. She did not witness the incident of assault by the accused upon his mother.

PW-8 Moni Borah stated inter-alia that there was frequent quarrel in the house of the accused. On the date of the incident, when she was washing clothes in her house compound, she heard hue and cry in the house of the accused and after sometime she came to know from the villagers that the accused had killed his mother. The prosecution declared her as a hostile witness.

PW-9 stated inter-alia that on the date of the incident, he was at the village 'namghar.' He did not visit the house of the accused after the incident. He came to know from the villagers that the accused had assaulted his mother with a wooden batten and as a result she died. There was frequent quarrel in the house of the accused. He did not witness the actual incident of assault.

PW-10 Hiren Borah has stated that the incident took place on 24.12.2017 and on 28.12.2017, the deceased died at JMCH. He heard that the accused had assaulted his mother.

PW-11 S.I. Pradip Khanikar was the Investigating Officer. His evidence appears to be formal in nature pertaining to the various steps he had undertaken during investigation.

On scrutiny of the above testimonies of the prosecution witnesses, it appears that none of them had witnessed the actual incident of assault on the deceased Guneswari, the mother of the accused which took place in their house. The evidence of PW-2 shows that at the relevant time of the incident, the daughter of the deceased, namely, Akoni Bora was present in the house but she was not examined by the prosecution. This Court finds that her evidence was material as had she been examined, the actual facts and circumstances leading to the incident of assault would have certainly come to light. All the non-official witnesses appear to be hearsay and as such, their evidence is found to be inadmissible. The medical evidence of PW-4, the autopsy surgeon shows that the injuries sustained by the deceased were ante-mortem in nature and caused by blunt force impact but added further that the aforesaid injuries were partially healed as the same were old. There is also an indication in his evidence that such injuries may be caused by fall on hard substance too. No sharp cutting Page No.# 6/6

weapon of offence was also seized in connection with the incident during investigation to establish that such weapon was used. Therefore, this Court is of the considered opinion that as the prosecution has failed to examine any witness who has seen the alleged incident of assault that took place in the broad daylight and that too in the house of the accused, which is surrounded by the houses of many families, it cannot safely be held that it was the accused only who voluntarily caused grievous hurt on the person of the deceased and the direct or proximate cause of the injuries she sustained in the incident.

Therefore, the impugned judgment and order, dated 15.11.2018 passed by the learned Sessions Judge, Jorhat is hereby set aside and accordingly the appeal stands allowed. The accused is acquitted of the charge under Section 326 of the IPC and set at liberty.

Release the accused from jail custody forthwith.

The criminal appeal (J) stands disposed of.

Return the LCR.

Before parting with the record, this Court appreciates the valuable service rendered by Mr. A Tiwari, learned Amicus Curiae. Accordingly, it is directed that an amount of Rs.7,500/- as legal fees be paid to him by the High Court Legal Services Committee upon production of a copy of this judgment and order.

JUDGE

Comparing Assistant