Gauhati High Court
CRL.A(J)/48/2020 on 6 May, 2024
Page 1 of 19
GAHC010097332020
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
Crl.App.(J)/48/2020
1. ... Baba @ Khumtai Borah
S/O. Lt. Bolin Bora, Vill. No.1 Baruati,
P.S. Silapathar, Dist. Dhemaji, Assam
Appellant
-Versus-
1. The State of Assam
Represented through the Public Prosecutor,
Assam
Respondent
For Appellant : Mr. M. Dutta, Amicus Curiae
For Respondent : Ms. S. Jahan, Additional Public Prosecutor
Date of judgment : 06.05.2024
BEFORE
HON'BLE MR. JUSTICE MRIDUL KUMAR KALITA
JUDGMENT
1. Heard Mr. M. Dutta, learned Amicus Curiae for the appellant.
Also heard Ms. S. Jahan, learned Additional Public Prosecutor
for the State.
Crl.App.(J)/48/2020 Page 1
2. This Criminal Appeal has been registered on receipt of an
appeal petition by the appellant Shri Baba @ Khumtai Borah
through the Superintendent, District Jail, Dhemaji impugning
the judgment dated 29.08.2019 passed by the Court of learned
Sessions Judge, Dhemaji in Sessions Case No. 108(DH)/2014,
whereby the present appellant has been convicted under
Section 304 Part-II of the Indian Penal Code and has been
sentenced to undergo rigorous imprisonment for 7 years and
to pay a fine of Rs. 2,000/- and in default of payment of fine to
undergo further rigorous imprisonment for two months.
3. The facts relevant for consideration of the instant Criminal
Appeal, in brief, are as follows : -
(i) That on 30.03.2009, one Smt. Junmoni Borah lodged
an FIR before Officer-In-Charge of Silapathar Police
Station, inter-alia, alleging that on 29.03.2009, at
about 8.00 PM, her brother, Khumtai Borah (present
appellant) had a quarrel with her father, Bolin Borah at
their house. It was also alleged that during the quarrel
the present appellant had inflicted blow to his father
with the blunt side of an "axe" causing grievous injury
on his person. The father of the informant was
immediately taken to the hospital.
(ii) On receipt of the said FIR, Silapathar P. S. Case
No. 85/2009 was registered under Section 325/307 of
Crl.App.(J)/48/2020 Page 2
the Indian Penal Code and investigation was initiated.
During the course of investigation, the father of the
informant succumbed to his injuries on 30.03.2009
and Section 302 of the Indian Penal Code was added
to the case.
(iii) Ultimately, on completion of the investigation, charge-
sheet was laid against the present appellant under
Section 302 of the Indian Penal Code.
(iv) The case being exclusively triable by the Court of
Session, it was committed to the Court of learned
Sessions Judge, Dhemaji by the Committal Court, i.e.,
the Court of learned Judicial Magistrate 1st Class,
Dhemaji. The appellant faced the trial remaining on
bail.
(v) On 05.01.2015, charges under Section 307/302 of the
Indian Penal Code were framed against the present
appellant. Same on being read over and explained to
him, he pleaded not guilty and claimed to be tried.
(vi) During the trial, the prosecution side examined six
(06) witnesses to bring home the charges against the
present appellant. The appellant was examined under
Section 313 of the Code of Criminal Procedure, 1973,
during which he denied the truthfulness of the
testimony of the prosecution witnesses and pleaded
Crl.App.(J)/48/2020 Page 3
his innocence. He led no evidence in his defence.
However, by the judgment which has been impugned
in this appeal, the appellant was convicted and
sentenced in the manner, as already described in
Paragraph No. 2 hereinabove.
4. The point to be determined in this appeal is that as to whether
the Trial Court was right in convicting and sentencing the
appellant, namely, Shri Baba Borah @ Kumtai Borah under
Section 304 Part-II of the Indian Penal Code.
5. Before considering the submissions made by the learned
counsel for both sides, let us go through the evidence which is
available on record.
6. PW-1, Shri Bulu Saikia, who is not an eye witness, has deposed
that he went to the house of the appellant after coming to
know about the fact that someone has killed the father of the
appellant. In the house of the appellant, police asked him to
put his signature on a piece of paper, which is exhibited at
Exhibit-1, however he is not aware about as to what was
written on the said paper. The cross-examination of this witness
has been declined by the defence side.
7. PW-2, Shri Prabhat Saikia, has deposed that some children told
him about the fact that the appellant had killed his father with
an "axe". When he went to the house of the appellant, police
had seized the axe and prepared one seizure list, which has
Crl.App.(J)/48/2020 Page 4
been exhibited by PW-2 as Exhibit-1, wherein his signature is
exhibited as Exhibit-1 (2). During cross-examination, he denied
the defence suggestion that nobody had told him about killing
of Bolin Borah by the appellant with an "axe".
8. PW-3, Shri Krishan Kant Saikia has deposed that Smti Junmoni
Borah (PW-4) had informed him that there was a quarrel
between the appellant and his father, wherein the father of the
appellant, namely, Bolin Borah, sustained injuries. PW-3 has
also deposed that he was requested to take the father of the
appellant to the Dhemaji Civil Hospital, accordingly, he took
Bolin Borah to Dhemaji Civil Hospital. He has also deposed that
on the next day, he came to know that the injured Bolin Borah
had died in the hospital. During cross-examination, PW-3 has
deposed that he had not seen the incident himself and he did
not asked anything to the injured Bolin Borah.
9. PW-4, Smt. Junmoni Borah, who is the first informant in this
case, has deposed that the appellant is her elder brother and
the deceased Bolin Borah was her father. She has also deposed
that the incident took place about six (06) years prior to her
deposing before the Trial Court. She has deposed that on the
date of incident, she came out of her house, after hearing cries
of her father and saw her father in injured condition who told
her that the appellant had inflicted injuries on him. She has
further deposed that they took her father to the Dhemaji Civil
Crl.App.(J)/48/2020 Page 5
Hospital, where he succumbed to his injuries. Later on, she filed
the FIR, which is exhibited as Exhibit-2 and her signature is
exhibited as Exhibit-2 (1). She has also deposed that the police
had seized the "axe" by which the appellant had assaulted his
father. She exhibited the seizure list as Exhibit-1 and her
signature thereon as Exhibit-1 (3). She has also exhibited the
seized "axe" as Material Exhibit-1. During cross-examination,
she had answered in negative to the suggestive questions put
to her by the learned defence counsel.
10. PW-5, Shri Indreshwar Hazarika, who is the Investigating
Officer of the case, has deposed that on 30.03.2009, he was
posted as ASI of Police at Silapathar Police Station and on that
day, Smt. Junmoni Borah had lodged an FIR, inter-alia, alleging
that the appellant had assaulted her father and had caused
grievous injuries on his person. PW-5 has also deposed that
after receipt of the FIR, he was entrusted by the Officer-In-
Charge of the Silapathar Police Station to conduct the
preliminary investigation. He has also deposed that he visited
the place of occurrence, drew the sketch map and recorded the
statement of witnesses. He also recorded the statement of the
present appellant, wherein he confessed to his guilt. During the
course of the investigation, the injured Bolin Borah succumbed
to his injuries in the hospital and Section 302 of the Indian
Penal Code was added to the case. PW-5 has also deposed that
Crl.App.(J)/48/2020 Page 6
SI Durgeshwer Gogoi held the inquest over the dead body and
thereafter, postmortem examination of the deceased was
conducted. PW-5 has also deposed that on his transfer, he
handed over the case diary to the Officer-In-Charge of
Silapathar Police Station. He has also deposed that on
completion of the investigation, charge-sheet was laid under
Section 302 of the Indian Penal Code against the present
appellant. He had exhibited the sketch map as Exhibit-3 and
Exhibit-3(1) as signature. He also exhibited the seized "axe" as
Material Exhibit-1. He had also exhibited charge-sheet as
Exhibit-4 and signatures of SI Kuladhar Konwar as Exhibit-4 (1).
11. During cross-examination, PW-5 has deposed that he went to
the place of occurrence on 30.03.2009 at about 11.00AM. He
has also deposed that he did not record the statement of
neighbours, at the place of occurrence, as mentioned in the
sketch map. He has also deposed that he had not visited the
hospital where the deceased succumbed to his injuries. He took
the statement of PW-4 before the death of the deceased,
however, he did not again record the statement of the
complainant after the death of her father. He also denied the
suggestion that the weapon of offence was not seized on being
produced by the present appellant. He has also deposed that he
had not sent the weapon of offence to Forensic Science
Crl.App.(J)/48/2020 Page 7
Laboratory (FSL) for examination. He has denied the suggestion
that the confession of the appellant was obtained under duress.
12. PW-6, Dr. Anup Dutta, who conducted the post-mortem
examination of deceased, has deposed that on 31.03.2009, he
was posted as Medical and Health Officer-1 at Dhemaji Civil
Hospital. He has deposed that on that day, he received a police
requisition in connection with Silapathar Police Station Case
No. 85/2009 under Section 325/307 of the Indian Penal Code to
perform the postmortem examination on the dead body of
Bolin Borah, Male, aged about, 50 year. The dead body was
identified by one Muniram Dowarah. Accordingly, PW-6 had
conducted the postmortem examination of the said dead body.
During examination, he found following:
"External appearance: there is a lacerated
wound over both parietal bone, size about 3
inch x 2 inch.
Cranium and spinal canal-after opening of
scalpe - there is a hematoma under the
wound area about 4 inch x 2 inch. There is
a depressed fracture in right parietal bone.
Under this parietal bone a hematoma of 4
inch x 3 inch size found in right parietal
brain matter.
Spinal cannal, thorax, abdomen and other
organs are normal.
Crl.App.(J)/48/2020 Page 8
The PW-6 had opined that the cause of the death was due to
neurogenic shock. He had exhibited Exhibit-5 and post mortem
examination report and Exhibit-5(1) as his signature. During
cross-examination he has stated that he did not mention the
time of death of the deceased in the post mortem examination
report.
13. During his examination under Section 313 of the Code of
Criminal Procedure, 1973, the appellant had denied the
truthfulness of the testimony of the prosecution witnesses and
has pleaded his innocence. However, he has not adduced any
evidence in his defence.
14. Mr. M. Dutta, learned Amicus Curiae has submitted that there is
no eye witness to the incident of assault on the deceased. He
has also submitted that apart from the testimony of the
Investigating Officer (PW-5), no witness has deposed that the
weapon of offence was seized from the possession of the
present appellant. He has also submitted that though the
seizure list, which was exhibited as Exhibit-1 mentions that the
seized "axe" was produced by the present appellant, however,
all the three seizure witnesses, namely, PW-1, PW-2 and PW-4
have not stated anything in their deposition as to from where
the seized "axe" was recovered. He has submitted that none of
the witness has deposed that the appellant was present in his
house at the time of seizure of the "axe". Further, he has also
Crl.App.(J)/48/2020 Page 9
submitted that the seized "axe" was not even sent for forensic
examination by the Investigating Officer and therefore, he has
submitted that there is no sufficient evidence on record to show
that the seized "axe" was used for inflicting injuries on the
deceased.
15. Further, he has also submitted that apart from the testimony of
the PW-4, where she has deposed that her father told her in
injured state that the appellant had caused injury to him, there
is no other material on record to implicate the present
appellant. He has also submitted that the PW-4 had never
stated before the Investigating Officer, during the course of
investigation, that her father told her that the appellant had
caused injury to him. He has fairly submitted that this omission
was not proved by putting questions to that effect, to the
Investigating Officer, during his cross-examination, by the
defence side. However, he submits that prudence requires that
the extra judicial dying declaration made by the deceased
before his daughter should be corroborated before it can be
relied upon. He submits that in the instant case, no such
corroboration is there regarding the extra judicial dying
declaration made by the deceased before his daughter.
16. Learned Amicus Curiae has also submitted that in the impugned
judgment, the Trial Court had made some observation merely
on the basis of conjectures and surmises. He has submitted
Crl.App.(J)/48/2020 Page 10
that the Trial Court has arrived at a finding that the appellant
was in his home on the relevant date and time, however, there
is no evidence on record to that effect. He has also submitted
that the Trial Court has also observed that there was quarrel
between the appellant and his father, however, in this regard,
also there is no evidence on record. He has also submitted that
even if the appellant has not taken any specific defence in this
case, it was incumbent on the prosecution side to prove the
guilt of the appellant, beyond all reasonable doubt by adducing
admissible evidence, which it has failed to do. It is submitted by
learned Amicus Curiae that in absence of credible evidence on
record against the appellant, he is entitled to get benefit of
doubt and an order of acquittal in this appeal.
17. On the other hand, Ms. S. Jahan, learned Additional Public
Prosecutor has submitted that the only reliable evidence against
the present appellant, in this case, is the extra judicial dying
declaration made by the deceased before his daughter, i.e.,
PW-4, wherein, he had stated that the present appellant had
caused injuries to him. However, she fairly submits that in the
case of "Heikrujam Chaoba Singh Vs. State of Manipur" reported
in (1999) 8 SCC 458, the Apex Court has observed that though
an oral dying declaration can form the basis of the conviction,
however, rule of prudence requires corroboration of the same,
before it can be acted upon. She has also submitted that
Crl.App.(J)/48/2020 Page 11
though, the PW-4 heard hue and cry, however, she has not
stated anything regarding witnessing the appellant at the crime
scene. She has also submitted that if this Court finds the
testimony of the PW-4 regarding extra judicial dying declaration
made by the deceased before her as reliable, the impugned
judgment may not be interfered with and the conviction of the
appellant may be upheld.
18. I have considered the submission made by the learned counsel
for both the sides and have perused the materials available on
record very carefully.
19. Though, there are several statues which operates in the sphere
of criminal law applicable in this country, however, one basic
underlying principle of criminal jurisprudence has found place
invariably in all such statues, i.e., before an accused person can
be convicted of a crime, his guilt must be proved beyond all
reasonable doubt. Even if, there is no eyewitness to an incident
of commission of offence by the accused, if there are
circumstantial evidence, which unmistakably points towards the
guilt of the accused, he may also be convicted. However, such
circumstances should be fully established, before convicting an
accused on the basis of the same. Let us examine, whether
such circumstantial evidence are there or not, in this case,
which unmistakably points towards the guilt of the present
Crl.App.(J)/48/2020 Page 12
appellant only and whether the impugned judgment may be
sustained or not.
20. In the case of "Sharad Birdhichand Sarda Vs. State of
Maharashtra", reported in (1984) 4 SCC 116, the Supreme Court
of India has observed as follows:
"153. A close analysis of this decision would show that
the following conditions must be fulfilled before a case
against an accused can be said to be fully established:
(1) the circumstances from which the
conclusion of guilt is to be drawn should be
fully established.
It may be noted here that this Court indicated
that the circumstances concerned "must or should"
and not "may be" established. There is not only a
grammatical but a legal distinction between "may be
proved" and "must be or should be proved" as was
held by this Court in Shivaji Sahabrao
Bobade v. State of Maharashtra [(1973) 2 SCC 793 :
1973 SCC (Cri) 1033 : 1973 Crl LJ 1783] where the
observations were made: [SCC para 19, p. 807: SCC
(Cri) p. 1047]
"Certainly, it is a primary principle that the
accused must be and not merely may be guilty
before a court can convict and the mental distance
between „may be‟ and „must be‟ is long and divides
vague conjectures from sure conclusions."
(2) the facts so established should be
consistent only with the hypothesis of the
guilt of the accused, that is to say, they
should not be explainable on any other
hypothesis except that the accused is
guilty,
(3) the circumstances should be of a
conclusive nature and tendency,
Crl.App.(J)/48/2020 Page 13
(4) they should exclude every possible
hypothesis except the one to be proved,
and
(5) there must be a chain of evidence so
complete as not to leave any reasonable
ground for the conclusion consistent with
the innocence of the accused and must
show that in all human probability the act
must have been done by the accused."
21. Thus, from the above mentioned ruling of the Apex Court, it is
clear that the circumstances from which the conclusion of guilt
is to be drawn should be fully established and the facts so
established should be consistent only with the hypothesis of the
guilt of the accused, that is to say, they should not be
explainable on any other hypothesis, except that the accused is
guilty.
22. In the instant case, in Paragraph No. 15 of the impugned
judgment, the learned Sessions Judge, Dhemaji has
enumerated following circumstances, brought on record by the
prosecution side:
(i) That the accused and the deceased were son and
father, respectively, were at their home on the relevant
date and time.
(ii) There was a quarrel between the two at the relevant
time.
(iii) Police seized an axe from the possession of the
accused.
(iv) Deceased sustained fracture injuries on parietal bone as
per medical report which supports oral testimony of
PWs.
Crl.App.(J)/48/2020 Page 14
(v) Medical evidence shows that the deceased died as a
result of the injuries sustained.
As regards, the circumstance No. (i) enumerated by the Trial
Court that the accused and the deceased were at their home on
relevant date and time, it appears that there is no record to
show that the present appellant was there at the crime scene.
This circumstance has not been established by any of the
evidence of prosecution witnesses. As regards, circumstance
No. (ii) that there was a quarrel between the appellant and his
father at the relevant time, there is no evidence to this effect
on record except the testimony of PW-3 wherein he has stated
that PW-4 had informed him that there was a quarrel between
the appellant and his father, however, the PW-4 has not made
any such statement before the Trial Court. She has only stated
in her testimony that she heard cries of her father from outside.
She has not stated anything about either hearing the voice of
the appellant or seeing him at the crime scene. Without there
being any credible evidence on record, regarding any quarrel
between the appellant and his deceased father at the crime
scene on the date of alleged offence, the circumstance No. (ii)
enumerated at Paragraph No. 15 of the impugned judgment
cannot be regarded as fully established.
23. Very surprisingly, the Trial Court has not enumerated the extra
judicial dying declaration, made by the deceased before the
Crl.App.(J)/48/2020 Page 15
PW-4, as one of the incriminating circumstances against the
present appellant in Paragraph No. 15 of the impugned
judgment. However, let us examine the said evidence regarding
extra judicial dying declaration.
24. The evidence of all the witnesses, except that of PW-4, appears
to be hearsay evidence. Though, the PW-4 had stated in her
deposition that at around 8.00 PM, upon hearing the cries of
her father, she came outside and saw her father in an injured
state, and on being asked, her father said that the appellant
had caused injury to him. Though, an oral dying declaration
may be made a basis for conviction, however, it may not be
safe to rely solely on an uncorroborated extra judicial dying
declaration for convicting the appellant. In this regard, the
observations made by the Apex Court in the case of "Heikrujam
Chaoba Singh Vs. State of Manipur" (Supra), appears to be
relevant in the instant case. Hence, same is quoted herein
below:
3. An oral dying declaration no doubt can form
the basis of conviction, though the courts seek
for corroboration as a rule of prudence. But
before the said declaration can be acted upon,
the court must be satisfied about the
truthfulness of the same and that the said
declaration was made by the deceased while
he was in a fit condition to make the
statement. The dying declaration has to be
taken as a whole and the witness who deposes
about such oral declaration to him must pass
the scrutiny of reliability.........."
Crl.App.(J)/48/2020 Page 16
In the instant case, it appears that the PW-4 has mentioned
about the extra judicial dying declaration for the first time, only
while deposing as PW-4 before the Trial Court. She has not
mentioned anything about the extra judicial dying declaration in
the FIR, which was lodged by her and has been exhibited as
Exhibit-2. The PW-5, who is the Investigating Officer, has also
not stated that the PW-4 told him anything regarding the dying
declaration made by her father at the crime scene. Moreover,
none of the other prosecution witnesses has stated anything
regarding the dying declaration, made by the deceased before
the PW-4. Under such circumstances, the veracity of the
testimony of PW-4 as regards the dying declaration made by
her father to her becomes doubtful and under such
circumstances, this Court is of considered opinion that it would
not be safe to rely on such a dying declaration alleged to have
been made by the deceased before the PW-4 at the place of
occurrence of the offence.
25. Moreover, there is no independent witness in this case to show
that the appellant was present at the crime scene when the
alleged offence was committed or when the "axe" which is
stated to have been used for commission of offence was seized.
Apart from the Investigating Officer, no other witness has
deposed that the "axe" was seized from the present appellant
or that it was produced by the present appellant. The "axe" was
Crl.App.(J)/48/2020 Page 17
also not sent for forensic examination, therefore, there is no
forensic evidence on record to connect the seized "axe" with
the injuries sustained by the deceased. Under such
circumstances, this Court is unable to find any credible evidence
on record to come to the conclusion that the seized "axe" was
the weapon of offence, in this case, which was used to cause
injuries on the deceased.
26. In view of the discussions made in foregoing paragraphs, this
Court is of the considered opinion that the prosecution side has
miserably failed to fulfil any of the five condition enumerated by
the Supreme Court of India in Paragraph No. 153 of the
judgment in the case of "Sharad Birdhichand Sarda Vs. State of
Maharashtra", (Supra). Hence, the case against the appellant
cannot be said to be fully established.
27. As the prosecution side has failed to fully establish the
circumstances from which the conclusion of guilt was drawn by
the Trial Court in the impugned judgment, the appellant is
entitled to get benefit of doubt and the impugned judgment is
liable to be set aside.
28. For the reasons mentioned hereinabove, the conviction and
sentence imposed on the present appellant by the impugned
judgment is hereby set aside.
29. The appellant is set at liberty forthwith, unless he is required to
be detained in connection with some other case.
Crl.App.(J)/48/2020 Page 18
30. Let the case record of Sessions Case No. 108(DH)/2014 along
with connected files as well as a copy of the judgment be sent
to the Court of learned Sessions Judge, Dhemaji.
31. Let a copy of this judgment be also sent to the Superintendent,
District Jail, Dhemaji, where the present appellant is detained.
32. The learned Amicus Curiae shall be entitled to the honorarium
as per the prevailing rules.
33. This Criminal Appeal is accordingly, allowed and disposed of.
JUDGE
Comparing Assistant
Crl.App.(J)/48/2020 Page 19
