Gauhati High Court
Appellant/Petitioner vs The State Of Assam And Anr on 20 May, 2022
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GAHC010025922021
THE GAUHATI HIGH COURT
(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh )
Case No: CRL.A(J) 3/2021
Chitra Bora
S/O- Sri Maneshwar Bora,
Village No. 1 Borjan, P.S. Jamuguri,
Dist.- Golaghat
.................................Appellant/Petitioner
VERSUS
The State of Assam and Anr.
Represented by Addl. P.P, Assam.
2. Bipul Hazarika
S/O. Lt. Ratneswar Hazarika
Vill. Madhupur Gaon
P.S. Merapari :
..........................................Respondents
:: BEFORE ::
HONOURABLE MR. JUSTICE SUMAN SHYAM
HON'BLE MRS. JUSTICE MALASRI NANDI
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For the Appellant/Petitioner : Ms. S. Khataniar
For the Respondents : Ms. S. Jahan
Date of Hearing : 09.05.2022
Date of delivery of
Judgment and Order : 20.05.2022
JUDGMENT & ORDER (CAV)
Malasri Nandi, J.
1. Heard Ms. S. Khataniar, learned counsel appearing for the appellant as well as
Ms. S. Jahan, learned Addl. P.P., Assam appearing for the State.
2. The present appeal has been preferred by the sole appellant Chitra Bora
challenging the Judgment of conviction and sentence dated 15/07/2019 passed by
the Learned Sessions Judge, Golaghat in Sessions Case no 222/2014 by which the
appellant has been convicted u/s 302 IPC and sentenced to undergo rigorous
imprisonment for life and also to pay a fine of Rs. 2000/- and in default of payment of
fine to undergo simple imprisonment for another one month.
3. The prosecution case what emerges from the FIR is that the informant Bipul
Hazarika lodged an FIR before the O.C Jamuguri PS stating inter alia that on
22/09/2014 at about 4 P.M. accused Chitra Bora inflicted grievous injury to Dilip
Hazarika by stabbing him with a knife in the Verandha of his house and fled away
from the scene. Though the injured was immediately taken to Golaghat Civil Hospital
by 108 Ambulance for treatment but the doctor declared him brought dead.
4. On the basis of the Ejahar a case was registered vide Jamuguri PS case no
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43/2014 u/s 302 IPC. During investigation the investigating officer visited the place of
occurrence, prepared the site plan and recorded the statement of the witnesses. The
IO also seized one knife during investigation by which the accused/appellant had
committed the offence. After completion of the investigation, charge sheet had
been submitted against four accused persons namely the present appellant Chitra
Bora and three others namely Ajit Gogoi, Jatin Bora and Maneshwar Bora u/s
302/109/ 34 IPC before the court of Chief Judicial Magistrate, Golaghat. The Learned
CJM, Golaghat took cognizance of the offence and the accused persons were
furnished with the copies of the relevant documents u/s 207 Cr.pc and the case had
been committed to the Court of Sessions.
5. Based on the materials available on record, the trial court framed charge u/s
302/34 IPC and the same was read over and explained to the accused persons to
which they pleaded not guilty. To prove the case of the prosecution as many as nine
witnesses were examined and marked eight exhibits and two material objects.
6. Based on the incriminating materials, the appellant alongwith other accused
persons were examined u/s 313 Cr.PC and they denied the same. Though, they were
provided an opportunity to examine the witnesses if any, but no witness was
examined and no document was marked on their side.
7. Having considered all the materials available before the Trial Court, the
accused/appellant Chitra Bora was convicted as aforesaid. But the other accused
persons who were facing trial in Sessions case no 222/2014 were acquitted by the trial
court. Challenging the conviction and sentence the accused/appellant is before this
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court with this Criminal Appeal.
8. We have heard the learned counsel appearing for the appellant Ms. S.
khataniar and the learned Additional Public prosecutor appearing for the state Ms. S.
Jahan and we have also perused the record of Sessions case no 222/2014 and the
documents available therein.
9. It was urged by the learned counsel for the appellant that though prosecution
projected P.W-4 as an eye witness but she is the wife of the deceased and is an
interested witness, gave false statement against the appellant. In fact she was not
present at the time of the incident. The evidence of PW4 before the court and the
statement made by her before the investigating officer are contradictory to each
other. It is also the submission of the learned counsel for the appellant that learned
trial Court erred in placing reliance on the evidence of P.W-3 and P.W-4 as because
they are relatives and interested witnesses.
10. Alternatively the learned counsel for the appellant argued that prior to the
incident a quarrel took place between the accused and the deceased and the
accused/appellant due to heat of passion came to the house of the deceased with
a knife and stabbed the deceased resulting in his death. There was no pre-
meditation to kill the deceased, hence, the present case would not attract sentence
u/s 302 IPC and the punishment awarded by the court of sessions u/s 302 IPC is liable
to be set aside.
11. Learned counsel for the appellant also contended that the blood stained shirt
of the deceased and the knife which were seized during investigation were not sent
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to the FSL for chemical examination and in absence of any report from the chemical
examiner, it cannot be said that the blood found in the shirt and the knife were
human blood, which is fatal to the prosecution case.
12. In reply to the arguments advanced by the learned counsel for the appellant,
the learned Additional Public Prosecutor had submitted that the Trial court
elaborately discussed the evidence of the witnesses including the material object i.e.
the knife used for stabbing the deceased. There was a wordy quarrel between the
appellant and the deceased regarding assault his father prior to the incident. At the
time of occurrence, the accused/appellant went to the house of the deceased and
asked him as to why he had assaulted his father and picked up quarrel with the
deceased and stabbed him with a knife resulting in his death. The eye witness PW4
and the other witnesses who came to the spot immediately after the incident proved
the case of prosecution. Therefore, the learned Trial Court rightly came to the
conclusion that the accused/appellant was guilty of an offence punishable u/s 302
IPC. Therefore the Judgment passed by the learned Trial Court does not warrant any
interference by this court.
13. We have considered the rival submissions advanced by the learned counsels
of both sides. At this juncture we have to look at the evidence of the witnesses
recorded by the learned Trial Court.
14. P.W-1 is the informant Bipul Hazarika, who is the elder brother of the deceased
Dilip Hazarika. He deposed in his evidence that the incident occurred in the year
2014. On that day at about 4:30 PM he was in his house which is situated at a
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distance of 2 km from the house of the deceased. At that time Dilip Hazarika's
children informed him over phone that accused Chitra Bora had inflicted injury with a
knife towards their father causing injury to his chest. On receipt of the information he
immediately came to the house of his brother Dilip Hazarika and by that time he was
shifted to Golaghat Civil Hospital. His brother Dambaru Hazarika informed him over
phone that Dilip Hazarika has died. On his arrival in the house of Dilip Hazarika his son
Kalia Hazarika informed him that he had pulled out a knife from the chest of his
father. Subsequently he lodged the FIR vide exhibit 1. Police seized the said knife vide
exhibit 2 seizure list wherein he put his signature. Police also seized blood stained shirt
of his deceased brother.
15. In his cross examination P.W-1 replied that he did not state before police that
Dilip's children told him over phone that Chitra Borah had inflicted injury with a knife
on their father because police did not ask him about it.
16. P.W-3 is Loken Hazarika who is the son of the deceased. From his deposition, it
reveals that the occurrence took place on 22/09/2014 at about 4 P.M. At that time his
father Dilip Hazarika was sitting in their Verandha with his mother. He was watching TV
inside their house. At that time, accused Chitra Bora and other accused persons
entered into their house and accused Chitra Bora stabbed his father with a knife
causing injury on his chest. Hearing his mother's scream he came out and his mother
shouted that he had been assaulted. He saw his father lying injured near the door
and blood was oozing out from his chest. The knife was found penetrated inside his
father's chest and he pulled it out. Later on his mother handed over it to the police.
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He had seen accused Chitra Bora looking at his father from a nearby lemon tree and
the other accused persons behind him. The TV room was adjacent to the place
where his father was sitting and his father could be seen from that room. He had seen
accused Chitra stabbing his father on his chest. His father died at home.
17. In his cross examination, P.W-3 replied that the house of the accused and their
house are closed to each other. Prior to the incident, the accused persons had
visiting terms with them. On the date of occurrence there was a feast at the house of
their neighbour, Hem Gogoi. His father and accused Maneshwar Bora went there. He
did not know if an altercation took place between his father and Maneshwar.
This witness also stated in his cross examination that he did not state before police
that through the gap of the door, he had noticed Chitra Bora stabbing his father with
a knife.
18. P.W-4 is Smt. Niru Hazarika is the wife of the deceased. From her deposition, it
discloses that on 22/09/2014 at about 4/4:30 PM she was sitting in the Verandha of
their house along with her deceased husband. At that time accused persons namely
Chitra Bora, Ajit Gogoi, Maneshwar Bora, Jatin Bora and Smt. Kali Bora arrived there
and accused Chitra Bora stabbed her husband with a knife causing injury on his
chest. Before stabbing Chitra Bora asked repeatedly to her husband as to why he
had assaulted his (Chitra's) father and then stabbed her husband with a knife.
Maneshwar Bora is the father of Chitra Bora. At that time her two daughters and son
were at home. After the incident, her husband stood up to go inside but fell on the
ground. Then her son pulled out the knife from the chest of her husband. Later on, she
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handed over the knife to the police. After the incident, she raised hue and cry and
on arrival of 108 ambulance she took her husband to Golaghat Civil Hospital but he
was declared brought dead.
19. In her cross examination, P.W-4 replied that on the date of incident, in the
noon time, her husband went to the house of their neighbour Hem Gogoi to attend a
religious ceremony. A lot of people gathered there. She heard that her husband had
slapped Maneshwar in front of the public there but she did not witness the incident.
20. P.W-5 Akan Hazarika deposed in his evidence that his brother Dilip Hazarika
died about one year back. On that day he was at his house. Around 4 PM he heard
the sound of commotion from the house of his younger brother Dilip. A little later he
saw accused Chitra Bora coming out from Dilip's house and waiting in the gate way.
Thereafter, he heard that his father Maneshwar Bora and his mother Kali Bora asked
Chitra Bora loudly to come back. They were at Dilip's house. When he entered into
Dilip's house he found Dilip lying on the ground inside his house. He came to know
from the family members of Dilip that Chitra Bora stabbed Dilip with a knife.
Thereafter, he called 108 ambulance and took Dilip to Golaghat Civil Hospital
wherein the doctors declared him brought dead. The inquest was conducted on the
dead body of the deceased vide exhibit-6 inquest report, wherein he put his
signature.
21. In his cross examination, P.W-5 replied that on the date of incident a religious
ceremony was held in the house of their neighbour Hem Gogoi. Dilip had gone there.
The villagers were also present there. He heard that Dilip had assaulted accused
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Maneshwar in front of the persons assembled there. Deceased Dilip Hazarika used to
quarrel with his neighbour after consuming alcohol.
22. P.W-6 is Raju Hazarika who is the cousin of the deceased Dilip Hazarika. He
deposed in his evidence that the incident took place in the house of Dilip Hazarika.
On that day when he returned back home from his work he came to know from his
son Chandan that accused Chitra Bora stabbed Dilip with a knife on his chest. Dilip
was taken to hospital. Later on he came to know that Dilip had passed away. On the
following day police seized one knife and a shirt which was worn by Dilip vide exhibit-
2 seizure list, wherein he put his signature.
23. In his cross examination, P.W-6 replied that he did not state before the police
that he had heard from his son Chandan that Chitra Bora had assaulted Dilip.
24. P.W-7 is another brother of the deceased Dilip Hazrika. He deposed in his
evidence that on the date of incident around 5 PM he was informed by one Dhunti
Gogoi that accused Chitra Bora had stabbed Dilip Hazarika with a dagger. On
receipt of the information he went to the house of Dilip Hazarika and saw Dilip lying
on the ground with injury on his chest. On being asked, Dilip's wife told him that
accused Chitra Bora had stabbed her husband with a knife.
25. In his cross examination, P.W-7 replied that on the date of incident a religious
function was held in the house of their fellow villager Hem Gogoi. He heard that a
quarrel took place between Dilip and the accused Maneshwar. His brother had
disputes with his neighbour regarding poultry and he advised his deceased brother
not to quarrel over petty issues.
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26. P.W-8 Mohan Handique is admittedly a reported witness. According to him, on
the date of incident younger brother of the deceased informed him over phone that
his brother in law Dilip Hazarika passed away. On receipt of the information, he came
to the house of Dilip Hazarika and found his dead body lying in the door step. On
being asked, he came to know from his nephews that accused Chitra Bora had killed
Dilip Hazarika with a knife. He had noticed mark of injury on his chest. He was present
when the inquest was done on the dead body of the deceased vide exhibit-6 inquest
report.
27. In his cross examination, P.W-8 replied that he did not state before the police
that the younger brother of the deceased had informed him over phone that the
deceased had died.
28. After going through the evidence of the aforesaid witnesses, it reveals that
P.W-4 claimed to be the eye witness to the incident. According to P.W-4, at the
relevant time of incident she was sitting along with her deceased husband in their
Verandha. Then the accused Chitra Bora came there and asked her husband why
he had assaulted his father and stabbed her husband with a knife causing injury on
his chest. P.W-3 who is the son of the deceased also supported the prosecution case
by stating that on the date of incident around 4 P.M. when his father Dilip Hazarika
along with his mother were sitting in their Verandha, he was watching TV inside their
house. At that time on hearing his mother's shout, he came out from the room and
found his father lying injured condition near the door and blood was oozing out from
his chest. One knife was found penetrated inside his father's chest and he pulled it
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out. Though PW3 projected himself as eye witness but from his deposition it reveals
that he did not see the incident but came to the spot immediately after the incident
on hearing the shout of his mother i.e. P.W-4. P.W-1, P.W-5, 6, 7 and 8 admittedly were
not present when the incident occurred. But they supported the prosecution case by
stating that they came to know from the family members of the deceased that
accused Chitra Bora stabbed Dilip Hazarika with a knife causing injury on his chest.
P.W-7 and 8 specifically stated that on receipt of the information regarding assault
towards Dilip Hazarika they went to his house and noticed injury mark on the chest of
the deceased.
29. The Medical Officer, Dr. Rajiv Phukun also supported the prosecution case
regarding injury of the deceased. He was examined in the case as P.W-2. From his
deposition, it discloses that on 03/09/2014 he was working at Kushal Konwar Civil
Hospital, Golaghat as Medical and Health Officer. On that day he performed the
post mortem examination on the dead body of the deceased Dilip Hazarika, aged
about 35 years, in connection with Jamuguri P.S. case no 43/2014 u/s 302 IPC on
Police requisition and found the following -
A dead body of an young adult male with swarthy complexion, short black
hair, both eyes were partially open. Rigor mortis absent.
One oval shaped penetrating wound seen on the left side of the chest on 5 th
Intercostal Space about 1 cm, lateral to mid- axillary line which is about 3 cm. X 2 cm.
X chest wall depth.
Stomach :- undigested food particles present inside the stomach.
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Small intestine :- semi digested food particles present in the small intestine.
Fecal matter present in the large intestine.
Small amount of urine found inside the urinary bladder.
Chest :- oval shaped penetrating wound seen on the left side of the chest at
5th intercostals space.
Ribs and cartilages are healthy.
Left side Pleurae is ruptured.
Pericardium ruptured at the base of the neck.
Heart ruptured at the base of the right atrium.
The nature of the injury was stabbed injury and grievous. It ruptured the base of
the heart at right atrium, leading to sudden loss of blood and death of the person.
Doctor opined that the cause of death was due to shock and haemorrhage as
a result of stab injury sustained by the deceased.
The cross examination of P.W-2 was declined.
30. Though it was not reflected in the evidence of P.W-2 that the death of the
deceased was homicidal in nature but from the opinion of the medical officer it
reveals that the doctor found rupture on the base of the heart at the right atrium
leading to sudden loss of blood and death of the person. The doctor also found oval
shaped penetrating wound on the left side of the chest. Under such back drop it is
apparent that the death of the deceased was homicidal in nature.
31. P.W-9 is Lohit Chetia, the investigating officer. He deposed in his evidence that
on 22/09/2014 he was working as the officer incharge of the Jamuguri Police Station.
On receipt of a written Ejahar from one Bipul Hazarika he registered a case vide
Jamuguri P.S. Case no 43/2014 u/s 302 IPC and started investigation of the case.
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During investigation, he recorded the statement of the witnesses, visited the place of
occurrence and drew the sketch map vide exhibit-7. The place of occurrence is the
house of Dilip Hazarika at no 1 Borjan Gaon. During the course of investigation, he
also seized one knife on being produced by the wife of the deceased and a blood
stained shirt vide exhibit 2 seizure list. The inquest on the dead body of the deceased
was conducted by the Executive Magistrate at Golaghat Civil Hospital. Thereafter he
sent the dead body of the deceased for post mortem examination. During
investigation, he also collected the post mortem report of the deceased. After
completion of the investigation, he submitted Charge sheet against the present
accused/ appellant Chitra Bora along with other accused persons Ajit Gogoi, Jatin
Bora, Maneshwar Bora and Kali Bora @ Majoni Bora for committing the offence
punishable u/s 302/109/34 IPC vide exhibit 8 Charge Sheet. On 23/09/2014 accused
Chitra Bora himself appeared at the police station. He arrested Chitra Bora and other
accused persons namely Jatin Bora, Ajit Gogoi and Maneshwar Bora. During the
investigation the statement of Niru Hazarika and Loken Hazarika were recorded by
the Magistrate.
32. Though it appears from the evidence of the aforesaid witnesses that there are
some contradictions in their evidence here and there but which do not go to the root
of the case for which the whole prosecution story could be discarded. It is seen from
the cross examination of the investigating officer that he confirmed the
contradictions of the witnesses while deposing before the court. In his cross
examination P.W-9 replied that P.W-1 Bipul Hazarika did not state before him that
Chitra Bora had stabbed Dilip Hazarika on his chest with a knife. P.W-1 also did not
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state before him that on his arrival at the house of the deceased, the children of the
deceased were sitting on the Verandha and he saw blood on the Verandha.
Admittedly P.W-1 is not the eye witness to the incident. According to him, he came to
know about the incident from the family members of the deceased and there was no
contradiction on that part of the evidence of P.W-1.
33. P.W-9 also confirmed that PW3 did not state before him that he saw accused
Chitra Bora stabbing his father with a knife on his chest and he saw accused Chitra
Bora looking at his father under a lime tree and the other accused persons were
behind Chitra Bora. P.W-9 also stated that P.W-4 did not state before him that at the
time of the incident when she was sitting with her husband in their verandha the
accused persons came to their house but in the cross examination, P.W-4 replied that
the police questioned her. On being asked she stated before the police that when
she was sitting in the verandha with her husband accused Chitra came and stabbed
her husband on his chest with a knife. She also stated before police that accused
Chitra Bora had come and altercated with her husband and she heard it. It appears
that the contradictions as confirmed by P.W-9 in connection with evidence of P.W-4
have been wrongly quoted.
34. Regarding P.W-3, as we have already mentioned that though P.W-3 has
projected himself as eye witness but from the facts and circumstances of the case, it
is seen that he was not present when the incident actually occurred but he
immediately came to the spot on hearing the scream of his mother. From the
evidence of the aforesaid witnesses, it is crystal clear that P.W-4 was sitting with her
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husband when the incident occurred and she had seen while Chitra Bora stabbed
her husband with a knife causing injury on his chest.
35. During investigation, the statement of P.W-3 Loken Hazarika and P.W-4 Niru
Hazarika were recorded by the Magistrate u/s 164 Cr.P.C. Niru Hazarika stated before
the learned Magistrate that on 22/09/2014, she and her husband were sitting together
in a room and talking to each other. Her son Loken Hazarika was watching TV in a
nearby room. At that time accused persons namely Ajit Bora, Maneshwar Bora, Jatin
Bora, Chitra Bora and Kali Bora entered into the room where they were sitting. Chitra
Bora stabbed her husband with a knife causing injury on his chest and blood was
oozing out from his chest. When she raised alarm her son rushed to the spot. She
became unconscious and fell down. Some neighbouring people Dipa Bora, Dipali
Bora arrived. They called 108 ambulance and took her husband to the hospital. After
committing the incident the accused persons fled away.
36. P.W-3 Loken Hazarika also stated before the Magistrate in the same tune while
recorded his statement u/s 164 Cr.P.C. He stated before the magistrate that on
22/09/2014 he was watching TV in his room and his parents were talking while sitting in
a room. At that time Ajit, Maneshwar, Jatin, Kali and Chitra Bora entered into their
house. Then Chitra Bora stabbed his father with a knife and left the place. The other
accused persons were waiting outside. On hearing his mother's shout he went there
and saw that Chitra had fled after stabbing his father. Blood was oozing out from his
father's chest. He immediately called 108 ambulance and sent his father to hospital
for his treatment.
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37. While appreciating the evidence, the court has to take into consideration
whether the contradictions/omissions have been of such magnitude that they may
materially affect the trial. Minor contradictions, inconsistencies, embellishments or
improvements on trivial matters without affecting the core of the prosecution case
should not be made a ground to reject the evidence in its entirety. The trial court
after going through the entire evidence must form an opinion about the credibility of
the witnesses and the appellate court in normal course would not be justified in
reviewing the same again without justifiable reasons (vide State v. Saravanan AIR
2009 SC 152).
38. The Apex court in the case reported in Kathi Bharat Vajsur and another v. State
of Gujarat 2012 Criminal Law Journal 2717 (SC) has observed that inconsistencies or
contradictions in oral evidence do not rule out oral evidence when medical
evidence is in consonance with principle part of oral/ocular evidence. It has been
further held that the reaction of the eye witness in an unusual manner after the
incident does not affect the prosecution case and witnesses cannot be disbelieved
on this ground.
39. In the case of State of Rajasthan v. Kalki (AIR 1981 SC 1390) while dealing with
this issue, it was observed as under -
"...... in the deposition of the witnesses there are always normal discrepancies
howsoever honest and truthful they may be. These discrepancies are due to normal
errors or observations, normal errors of memory due to lapse of time, due to mental
disposition such as shock and horror at the time of the occurrence and the like.
Material discrepancies are those which are not normal and not expected of a normal
person."
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40. In the case in hand, it is true that, both P.W-3 and P.W-4 while deposed before
the court stated that while the deceased was sitting along with P.W-4 in the
verandha of their house, the incident occurred. But both Niru Hazarika and Loken
Hazarika stated before the magistrate that while the deceased along with his wife i.e.
P.W-4 were sitting in a room, the incident took place. But there is no contradiction in
the evidence of any of the witnesses that the accused Chitra Bora stabbed the
deceased with a knife causing injury on his chest. The medical officer also supported
the fact and deposed in his evidence that during post mortem examination of the
deceased he found one penetrating wound on the chest of the deceased which
was fatal. Under such background, we are of the opinion that the inconsistencies
found in the place of occurrence i.e. room and verandha is minor contradiction
without affecting the core of the prosecution case.
41. Learned counsel for the appellant has contended that there is no motive for
the accused/appellant to kill the deceased and the prosecution has failed to show
any such ground which is fatal to the prosecution case. In reply learned Additional
P.P has submitted that as this case is based on direct evidence, so motive pales into
significance.
42. In fact, motive is locked in the mind of the accused and often the prosecution
finds it difficult to unearth the motive behind the crime. Nowadays murders are being
committed on very trivial matters. So far as the motive and its sufficiency for a crime
of this nature such as the instant case is concerned the Apex court in the case of
Thaman Kumar v. State of Union territory of Chandigarh AIR (2003) SC 3975 has held as
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under -
"there is no such principle or rule of law that where prosecution fails to prove the
motive for commission of the crime, it must necessarily result in the acquittal of the
accused. Where the ocular evidence is found to be trust worthy and reliable and
finds corroboration from the medical evidence, a find of guilt can safely be recorded
even if the motive for the commission of the crime has not been proved".
43. Learned counsel for the accused/appellant has argued that the witnesses
examined by the prosecution are closely related to the deceased, so they are
partisan and interested witnesses, hence, their testimony should not be relied upon.
44. It is true that P.W-4 is the wife of the deceased but she was present when the
incident took place. The other witnesses examined by the prosecution are brothers,
except P.W-8, the relatives of the deceased. But it is a settled position of law that
relationship is not a factor to affect the credibility of a witness. It is more often than
not that a relation would not conceal the actual culprit and make allegations against
an innocent person. Foundation has to be laid if plea of false implication is made. In
such cases the court has to adopt a careful approach and analyze evidence to find
out whether it is cogent and credible.
45. The above position has been highlighted again in the case of Galivenkataiah
v. State of AP reported in AIR (2008) SC 462 in which reference has been made to
some other cases also. In this context we may refer to the case of Sucha Singh and
another v. State of Punjab reported in 2003 (7) SCC 643, wherein, the Hon'ble Apex
court observed as under -
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"a witness is normally to be considered independent unless he or she springs from
sources which are likely to be tainted and that usually means unless the witness has
caused, such as enmity against the accused, to wish to implicate him falsely.
Ordinarily a closed relation would be the last to screen the real culprit and falsely
implicate an innocent person. It is true when feelings run high and there is personal
cause for enmity, that there is tendency to drag in an innocent person against whom
a witness has a grudge along with the guilty, but foundation must be laid for such a
criticism and the mere fact of relationship far from being a foundation is often assure
guarantee of truth. However, we are not attempting any sweeping generalization.
Each case must be judged on its own facts".
46. In the case of Ravi v. State of UP reported in 2004 11 SCC 266 the following
observations have been made by the Apex Court -
"it is well settled in a catena of cases that the evidence of eye witnesses cannot be
rejected merely because they are related. The relatives will not exonerate real culprits
and falsely implicate others".
47. In the back drop of the legal positions innumerated above, in the instant case
also it cannot be said that P.W-3 Loken Hazarika and P.W-4 Niru Hazarika are not
independent witnesses and their testimony be discarded merely on the ground that
they are near relatives of the deceased, rather considering the time and place of the
incident they are the most natural witnesses as we have already discussed that the
P.W-4 was sitting at the relevant time of incident with the deceased and P.W-3 was
watching TV in the nearby room and he immediately came to the spot on hearing
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the shout of his mother, P.W-4. P.W-1 and the other witnesses came to the house of
the deceased on receipt of the information regarding assault towards him
(deceased) but in one point the evidence of all of them are similar that they came to
know from the wife or the children of the deceased that the accused/appellant
Chitra Bora stabbed the deceased with a knife causing injury on his chest. In a
criminal trial unless serious prejudice is caused to the accused persons, the court is
required to evaluate the evidence adduced by the prosecution in order to find the
guilt or otherwise of the culprits. Thus the contention put forward by the learned
counsel for the accused/appellant on this core has no legs to stand.
48. The next ground for consideration in the appeal is that according to the
learned counsel for the appellant, the appellant by sudden provocation without any
intention to cause death or such bodily injury committed the offence resulting in
death of the deceased. Therefore the appellant could be said to have committed
the offence punishable u/s 304 Part II IPC and not u/s 302 IPC.
49. The principal issue to be considered in this appeal is whether the offence
disclosed by the facts and circumstances established by the prosecution against the
appellant is murder u/s 302 IPC or culpable homicide not amounting to murder u/s
304 Part I or Part II of the Code.
50. The Hon'ble Supreme Court in the case of Ajit Singh v. State of Punjab reported
in 2011 (9) SCC 492 has held that:-
" in order to hold whether an offence would fall u/s 302 or section 304 Part I of the
Code, the courts have to be extremely cautious whether the same falls u/s 300 of the
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code which states whether a culpable homicide is murder or would it fall under its 5
exceptions which lay down when culpable homicide is not murder. In other words
section 300 states both, what is murder and what is not. First finds place in section 300
in its four stated categories while the second finds detailed mention in the stated five
exceptions to section 300. The legislature in its wisdom thus covered the entire gamut
of culpable homicide that amounting to murder as well as that not amounting to
murder in a composite manner in section 300 of the code. Section 302 and 304 of the
code are primarily the punitive provisions."
51. An analysis of these two sections must be done having regard to what is
common to the offences and what is special to each one of them. The offence of
culpable homicide is thus an offence which may or may not be murder. If it is murder,
then it is culpable homicide amounting to murder for which punishment is prescribed
in section 302 of the code. Section 304 deals with cases not covered by section 302
and it divides the offence into two distinct classes that is (a) those in which the death
is intentionally caused and (b) those in which the death is caused unintentionally but
knowingly. In the former case the sentence of imprisonment is compulsory and the
maximum sentence admissible is imprisonment for life. In the latter case imprisonment
is only optional and the maximum sentence only extends to imprisonment for 10
years. The first clause of this section includes only those cases in which offence is really
murder but mitigated by the presence of circumstances recognized in the exceptions
to section 300 of the code, the second clause deals with the cases in which the
accused has no intention of injuring anyone in particular.
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52. Thus where the act committed is done with clear intention to kill the other
person, it will be a murder within the meaning of section 300 of the code and
punishable u/s 302 of the code but where the act is done on grave and sudden
provocation which is not sought or voluntarily provoked by the offender himself the
offence would fall u/s 300 of the code and is punishable u/s 304 of the code. Another
fine tool which would help in determining such matters is the extent of brutality or
cruelty with which such an offence is committed.
53. Reverting back to the present case, the evidence examined in its entirety
shows that without any pre-meditation the appellant committed the offence. The
same, however, is done with the intent to cause a bodily injury which could result in
the death of the deceased. This court finds from the above facts and material that
there is no enmity between the appellant and the deceased and there was no
allegation of the prosecution that before the occurrence the appellant had pre-
meditated the crime of murder. Due to hostile attitude of the appellant towards the
deceased regarding assault of his father by the deceased, a sudden quarrel took
place between the appellant and the deceased. On account of heat of passion, the
appellant went to the house of the deceased and attacked him with a knife causing
injury on his chest which resulted in his death.
54. In view of the foregoing discussions, we are of the opinion that the provision
u/s 304 Part I IPC would be attracted in the instant case instead of Section 302 IPC.
55. In the result, the appeal is partly allowed. The conviction u/s 302 IPC is
converted to section 304 Part I IPC. The conviction u/s 302 IPC is, therefore, set aside.
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The accused/appellant is convicted u/s 304 Part I IPC and sentenced to rigorous
imprisonment for 10 (ten) years. The amount of fine imposed by the Trial court will
remain as same. The detention period already undergone by the appellant is set off
u/s 428 Cr.P.C.
56. Send down the LCR.
JUDGE JUDGE
Comparing Assistant
