Bhaikon Rajowar vs The State Of Assam
2022 Latest Caselaw 2056 Gua

                                                                             Page No.# 1/7

GAHC010012322018




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

                             Case No. : CRL.A(J)/3/2018

           BHAIKON RAJOWAR
           S/O. SRI BIRSA RAJOWAR, R/O. KASHOLI GAON, P.S. TITABAR, DIST.
           JORHAT



           VERSUS

           THE STATE OF ASSAM
           GHC, GHY.



Advocate for the Petitioner : MS. M BARMAN, AMICUS CURIAE
Advocate for the Respondent : PP, ASSAM

BEFORE HON'BLE MR. JUSTICE SUMAN SHYAM HON'BLE MRS. JUSTICE MALASRI NANDI

Date: 09-06-2022 Judgment and Order (Oral) (Suman Shyam, J)

Heard Ms. M. Barman, learned amicus curiae appearing for the appellant. We have

also heard Ms. S. Jahan, learned Addl. P.P. Assam appearing for the State.

2. This appeal from jail has been preferred by the sole appellant assailing the Page No.# 2/7

judgment dated 08-12-2017 passed by the learned Sessions Judge, Jorhat in Sessions

Case No. 85(J-J)/2015 convicting him under Section 302 of the IPC for committing the

murder of Lebu Rajowar and sentencing him to undergo rigorous imprisonment for life

and also to pay fine of Rs. 20,000/- with default stipulation.

3. The allegation brought against the appellant is to the effect that on 15-03-2015 at

around 02:00 p.m. he had intercepted the deceased Lebu Rajowar on the road while the

later was coming from his home and dealt blows on the face of the victim with axe, as a

result of which, the victim had suffered grievous injuries leading to his death on the spot.

On 17-03-2015, Sri Bipul Rajowar, i.e. the brother of the victim had lodged an ejahar with

the Officer-in-Charge of Titabor Sub Police Station reporting the incident. On receipt of

the ejahar on 17-03-2015 Titabor P.S. Case No. 61/2015 was registered under Section

302 of IPC. The matter was entrusted to S.I. Sri Nakul Chandra Phukan for carrying out

investigation. Upon completion of investigation, charge-sheet was submitted by the

Investigating Officer (I/O) under Section 302 IPC. Based on the charge-sheet, the learned

trial court had framed charge against the accused/ appellant under Section 302 IPC.

However, since the accused had pleaded innocence, he was subjected to trial.

4. The prosecution case is based on the testimony of as many as 07 (seven) eye

witnesses, which also included the father of the accused Sri Birsha Rajowar. After

recording the evidence of the prosecution side the statement of the accused was recorded

under Section 313 Cr.P.C. whereby he had denied all the incriminating circumstances put

to him and claimed innocence. Upon completion of trial and evaluation of the evidence

available on record, the learned trial court had convicted the accused under Section 302 Page No.# 3/7

IPC for committing the murder of Lebu Rajowar and sentenced him as aforesaid.

5. The witnesses PWs- 2, 3, 4, 6, 7, 8 and 10 have been examined by the prosecution

as eye witnesses to the occurrence. All these witnesses have deposed before the court in

more or less one voice by stating that on the date of the occurrence, at about 02:00 p.m.

they had seen the accused/ appellant assaulting the deceased Lebu Rajowar on his head

with a 'Kuthar' (Axe), as a result of which, the victim had died on the spot. According to

PW-2 Sri Boloram Rajowar, the accused had struck the victim with the axe twice on his

head. PW-3 Sri Ajit Rajowar has, however, stated that the accused had given three blows

on the deceased on his head with an axe. After seeing the incident, he had chased the

accused but in the meantime, he ran away towards Bandar Chaliha Outpost by leaving

behind the axe at the place of occurrence and thereafter, the accused had entered the

police outpost.

6. PW-4 Sri Sukumoni Rajowar is the mother of the victim and she had also seen the

occurrence. This witness has deposed that the accused had struck the victim with an axe

on his head, as a result of which, he died on the spot. The accused had fled the scene

after throwing away the axe.

7. PW-6 Sri Dina Rajowar had seen the accused assaulting the victim on his head with

a 'Kuthar' (axe), due to which, the victim fell down on the ground and died on the spot.

The accused ran towards the police station. Likewise, PW-8 Sri Biren Bhuyan, who is

another eye witness to the occurrence, had also deposed that the accused had struck the

victim thrice on his head with an axe leading to his death. PW-8 has further deposed that

he saw the incident from a distance of 15 ft. and there was no quarrel between the Page No.# 4/7

accused and the victim. PW- 10 Sri Birsha Rajowar is the father of the accused and he has

also deposed before the court that it was accused Bhaikon Rajowar who has assaulted the

victim on his head thrice due to which, Lebo Rajowar fell down and died on the spot.

8. The evidence adduced by all these eye witnesses find due corroboration from the

medical evidence brought on record through the PW-11, viz. Dr. Nitu Kumar Gogoi, who

had conducted the postmortem examination on the dead body at the Jorhat Medical

College and Hospital. PW-11 has proved the postmortem report Exhibit-4 and has also

opined that the death was caused due to coma as a result of injuries sustained over the

head. All the injuries, according to the PW-11, were ante mortem and caused by

moderately heavy to heavy sharp edged weapon which was homicidal in nature. PW-11

has further deposed that he had found the following wounds on the dead body:

"1. Chop wound of size 7 cm X 3 cm X cranial cavity deep over right temporal region middle part of the head.

2. Chop wound of size 7 cm X 2 cm X cranial cavity deep over the vertex of head.

3. Chop wound of size 7.5 cm X 3 cm X cranial cavity deep over forehead middle part horizontally."

9. PW-1, Sri Bipul Rajowar is the informant in this case. He is related to the victim.

PW-1 has deposed before the court that (Exhibit- 1) the FIR was lodged by him. This

witness had proved his signature in the FIR and has further deposed that as he was busy

in the funeral of his deceased brother, there was delay in lodging the FIR. During cross-

examination this witness could not be shaken.

10. PW-5, Sri Bijoy Rajowar did not see the incident but later on came to know that the

accused had killed the deceased with an axe.

Page No.# 5/7

11. PW-9, Smti. Sabita Rajowar is the wife of the deceased. She also did not see the

occurrence but saw the accused coming from the backside of the house with an axe in his

hand by saying something. She tried to stop the accused but without listening to her, the

accused went ahead with the axe in his hand. By the time, she had reached the place of

occurrence, the accused had already assaulted her husband with the axe and fled away

towards the police station by leaving behind the axe.

12. PW-12, Sri Nakul Chandra Phukan is the I/O in this case. This witness has deposed

before the court narrating the manner in which the investigation was carried out by him.

PW-12 has deposed that he had recorded statements of all the eye witnesses, collected

the postmortem report as well as the inquest report, seized one axe from the place of

occurrence in presence of witnesses and thereafter, submitted charge-sheet. According to

PW-12, on 15-03-2015, he had received a message from Havildar of Bandar Chaliha Police

Outpost that one murder has been committed and thereafter, made G.D. Entry 393 dated

15-03-2015. During the cross-examination, PW-12 has stated that he had received

information about the incident at about 03:00 p.m. on 15-03-2015 and went to the place

of occurrence at 04:00 p.m. on the same day.

13. PW-13, Sri Chinmoy Baruah was the SDJM posted at Titabor on 23-03-2015. He

had recorded the statements of the three witnesses, Boloram Rajowar (PW-2), Ajit

Rajowar (PW-3) and Biren Bhuyan (PW-8) under Section 164 Cr.P.C. PW-13 has deposed

as regards the manner in which steps had been taken by him for recording the

statements of these three witnesses. PW- 13 has also proved Exhibit- 7, Exhibit- 8 and

Exhibit- 3, which are the respective statements of the above witnesses recorded by him.

Page No.# 6/7

Based on the evidence available on record, the learned trial court has convicted the

appellant and sentenced him has aforesaid.

14. By referring to the evidence available on record, Ms. Barman, learned amicus

curiae has argued that since the prosecution case is based on eye witnesses account, she

is not seeking acquittal for her client. However, contending that there was a pre-existing

land dispute between the families of the accused and the victim, Ms. Barman, learned

amicus curiae has made a prayer before this Court to convert the conviction of the

appellant to one under Section 304 Part-I of the IPC. The said prayer has, however, been

opposed by Ms. Jahan, learned Addl. P.P. Assam on the ground that there is no material

before this Court to show that present case would come under the exceptions of Section

300 IPC. She further submits that the prosecution has succeeded in establishing the

charge beyond reasonable doubt and therefore, there is no scope for interference with

the impugned judgment.

15. From a careful reading of the materials available on record including the testimony

of the eye witnesses, we are convinced that the charge brought against the accused

under Section 302 of the IPC has been firmly established. The evidence of the eye

witnesses not only find due corroboration from the testimony of one another but is also

duly supported by the medical evidence brought on record. Therefore, there is no room

for doubt that the charge brought against the appellant under Section 302 of the IPC has

been proved beyond reasonable doubt.

16. Insofar as the prayer made by the learned amicus curiae for conversion of the

conviction of the appellant from one under Section 302 IPC to Section 304 Part- I and II Page No.# 7/7

of the IPC, we find from the scrutiny of the materials available on record that there is

nothing to suggest that the present case would come within the sweep of any of the

Exceptions of Section 300 of the IPC. Rather, it appears that the accused had acted with

pre-meditation and had assaulted the victim with heavy and sharp weapon on the vital

parts of his body, with the intent to kill. Evidence available on record further indicates that

immediately before the incident, the accused had left behind his wife in the house of his

father-in-law and on his way back, he had also picked up the axe from the house of PW-

5. All these preparation made by the accused go to show that there was sufficient pre-

mediation on the part of the accused/ appellant for committing an offence punishable

under Section 302 IPC. Such being the position, we are unable to accept the prayer made

by the learned amicus curiae for conversion of the conviction of the accused/ appellant.

For the reasons stated hereinbefore, this appeal is held to be devoid of any merit

and the same is accordingly dismissed.

Send back the LCR.

Before parting with the record, we wish to place on record our appreciation for the

valuable services rendered by Ms. M. Barman, learned amicus curiae appearing in this

case and direct the Registry to make available to her, just remuneration as per the

notified rate.

                      JUDGE                             JUDGE

GS


Comparing Assistant