Full Judgment Text
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 164 OF 2011
Bikash Bora and Ors. …..Appellant(s)
:Versus:
The State of Assam ....Respondent(s)
J U D G M E N T
A.M. Khanwilkar, J.
1. This appeal takes exception to the judgment and order
th
dated 4 January, 2008, passed by the Gauhati High Court in
Criminal Appeal No.323 of 2004, confirming the conviction of
the four appellants for offences punishable under Section
302/34 of I.P.C. as recorded by the Additional Sessions Judge,
No.2 (Adhoc) at Sivasagar in Sessions Case No.27(SC) 2003.
Initially, six accused were tried for the stated offence. Amongst
them two accused came to be acquitted by the Trial Court on
Signature Not Verified
the finding that no tangible evidence was produced to
Digitally signed by
DEEPAK SINGH
Date: 2019.02.05
14:36:55 IST
Reason:
establish their guilt. The four accused, who are appellants
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herein, however, came to be convicted by the Trial Court. They
preferred an appeal before the High Court which came to be
dismissed. The High Court, however, reversed the observation
of the Trial Court that PW5 (Lakhiram Kurmi) was an
eyewitness. In that sense, the Trial Court as well as the High
Court proceeded on the basis that it was a case of
circumstantial evidence to establish the complicity of the
appellants. The Trial Court in paragraph 35 recorded the
circumstances as follows:
“1). Jugeswar Kurmi visited the house of Lakhiram Kurmi
(PW5) on the night and after having the night meal
he left his house at about 08:30 P.M.
2). Lakhiram Kurmi heard that dogs were barking just
after departure of Jugeswar Kurmi from his house.
3). Lakhiram heard the sound that the chowkidars are
chasing somebody.
4). Lakhiram heard the sound of beating someone by the
chowkidars.
5). The chowkidars asked Lakhiram to bring some water
for the injured lying on the road inside the garden.
6). In the light of torch light of the accused persons
Lakhiram identified Jugeswar.
7). Injured Jugeswar was carried by the accused persons
on the carrier of the bicycle belonged to Jiten to the
factory of Khagorijan Tea Estate with his two hand
tied up with rope.
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8). Jugeswar was lying dead infront of the garden
factory.
9). A lathi was recovered and seized from the house of
accused Dipankar by the Investigating Officer.”
The High Court affirmed the view taken by the Trial Court that
the stated circumstances clearly indicated the involvement of
the appellants in the commission of the crime resulting in the
death of Jugeswar Kurmi (deceased), and having so held,
confirmed the conviction and sentence awarded by the Trial
Court qua the appellants.
2. After considering the rival submissions and perusing the
record, we have no hesitation in observing that the
prosecution case rests on circumstantial evidence. Besides the
circumstances noted by the Trial Court and which commended
to the High Court, no other circumstance can be discerned
from the record. Notably, Lakhiram Kurmi, Manager of the Tea
Estate (PW5) is the only witness who had reached the spot
after Jugeswar Kurmi was already assaulted and seen lying on
the ground. In his examination, he has stated that Jugeswar
Kurmi had visited his house on the same evening and left at
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about 08:30 p.m. after taking dinner. Later on, he (PW5)
heard some commotion outside his house at around 10:30
p.m. When he went out to see as to why the dogs were
barking, he could see from about 300 cubits from where the
sound was coming, the chowkidars (all accused) identified by
him in court were standing. He asked them whether they were
beating any person or cattle. The chowkidars, in return, asked
him to bring water and when he went near the spot he found
Jugeswar Kurmi lying on the road. He could recognize
Jugeswar Kurmi in the light of the torch belonging to accused
persons. He has stated that he offered water to Jugeswar
Kurmi. Further, the chowkidars told him that he (Jugeswar
Kurmi) was stealing tea bushes. Thereafter, the accused took
the injured to the factory of the garden on the bicycle of his
son, Jiten, and in the morning, he was informed that
Jugeswar Kurmi had died.
The High Court rightly concluded that Lakhiram Kurmi
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(PW5) was not an eyewitness. The question is: whether the
circumstances noted by the Trial Court and which commended
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to the High Court by itself were sufficient to conclude that all
the appellants were guilty of offence under Sections 302/34 of
I.P.C? Admittedly, there is no evidence regarding common
intention of the accused persons or prior meeting of their
minds to kill the deceased (Jugeswar Kurmi). The evidence of
PW5, at best, mentions about the mere presence of all the
appellants at the spot where Jugeswar Kurmi was seen lying
on the ground. He does not state that all the appellants were
wielding lathis at the relevant time. Nor has he spoken about
any disclosure made by the appellants regarding the sequence
of events resulted in causing fatal injuries to the deceased.
Thus, there is no evidence to indicate as to how appellants
Bikas Bora, Atul Bora and Haren Rautia could be made
accountable for the fatal injuries caused to the deceased to
which he eventually succumbed. In the postmortem report
conducted by Dr. Udayaditya Rajkonwar (PW8), he has noted
the following injuries on the dead body of Jugeswar Kurmi:
“1). Haemoatoma over left side of head with fracture of
frontal bone and separations of front parietal and
temporal structure.
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2). Bruise over left lower laterachest wall with fracture of
th
10 rib.
3). Abrasion over left chin measuring 1. cm.
4). Two abrasions over left lateral abdominal wall above
iliac crest, each 1. cm.”
He has stated that the first two injuries, in his opinion,
individually, could have caused death in the ordinary course
of nature. Jugeswar Kurmi died due to shock and hemorrhage
from ante mortem injuries caused by a blunt weapon.
4. We are of the considered opinion that even if all the nine
circumstances are taken as it is, the same do not clinchingly
establish the complicity of appellants Bikash Bora, Atul Bora
and Haren Rautia. There is no tittle of evidence to show that
they were wielding lathis or had assaulted the deceased
(Jugeswar Kurmi) by lathi so as to hold them responsible by
applying Section 34 of I.P.C. At best, the chain of proved
circumstances would point finger only towards appellant
Dipankar Bora, from whose house lathi used to assault the
deceased, was recovered. Further, the two fatal injuries, in
the opinion of Dr. Udayaditya Rajkonwar (PW8), could be
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caused by a blunt weapon like lathi. Accordingly, for want of
clinching evidence to indicate the complicity of three
appellants, namely, Bikash Bora, Atul Bora and Haren Rautia,
it would be difficult to sustain their conviction by applying
Section 34 of I.P.C., which was the charge framed against
them. As a result, they deserve to be acquitted by giving them
the benefit of doubt.
5. Reverting to the case of appellant Dipankar Bora, the
nine circumstances noted by the Trial Court and affirmed by
the High Court would certainly establish his involvement in
the commission of crime, and in particular, on account of
recovery of the weapon from his house, which was used to
assault Jugeswar Kurmi. He has not offered any explanation
except claiming to be innocent. The medical evidence does
indicate that the two injuries were fatal and each of them was
sufficient to cause death in ordinary course of nature. PW8
has deposed that a patient with such injuries can survive up
to one hour and beyond that possibility of survival is minimal.
The Trial Court as well as the High Court were right in relying
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upon the evidence of PW5 and PW8 to hold that the nine
circumstances were duly established. That being a possible
view, we would be loath to interfere with the same. The proved
circumstances clinchingly point towards the involvement of
appellant Dipankar Bora in the commission of the stated
offence of murder. Thus, we agree with the concurrent
conclusion reached by the two courts about the finding of guilt
against the appellant Dipankar Bora in the commission of the
crime and for causing the death of Jugeswar Kurmi.
6. The next question is: whether the offence of Section 302
of I.P.C. can be converted to Section 304 (II) of I.P.C. The fact
that only two fatal injuries have been noticed during the
postmortem of the dead body of deceased (Jugeswar Kurmi)
would not bring the case within any exception to hold that it
was a case of culpable homicide not amounting to murder. The
High Court has found that the deceased (Jugeswar Kurmi) was
not armed and could not have offered any resistance or
challenged the chowkidars armed with weapon. Concededly,
though the accused perceived Jugeswar Kurmi as a thief and
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had chased him but that could be no justification to inflict
vigorous stick blows which could cause fatal injuries as
noticed in the postmortem report and proved by PW8.
Therefore, we are not inclined to disturb the conclusion
reached by the High Court that it was a case of causing
murder of Jugeswar Kurmi (deceased), albeit by accused
Dipankar Bora, an offence liable to be punished under Section
302 of I.P.C. simpliciter.
7. Accordingly, we conclude that the mere presence of the
three appellants namely, Bikash Bora, Atul Bora and Haren
Rautia, at the scene of crime, cannot be the basis to record a
finding of guilt against them by applying Section 34 of I.P.C.
The proved chain of circumstances is not enough to establish
their complicity in causing the two fatal injuries to the
deceased (Jugeswar Kurmi) to which he eventually
succumbed. The prosecution, however, has succeeded in
unerringly establishing the involvement of accused Dipankar
Bora, on the basis of the nine circumstances discerned from
the record as concurrently found by the Trial Court and the
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High Court. Further, it is not a case to convert the offence of
murder to one under Section 304 (II) of I.P.C.
8. In view of the above, the appeal partly succeeds. The
three appellants namely, Bikash Bora, Atul Bora and Haren
Rautia are acquitted of the offence under Section 302/34 of
I.P.C. by giving them benefit of doubt. The judgment and order
passed by the Trial Court and the High Court is setaside qua
them. However, the appeal filed by the appellant Dipankar
Bora stands dismissed by upholding his conviction and
sentence punishable under Section 302 of I.P.C. simpliciter.
His bail bond stands cancelled. He shall surrender within four
weeks from today to undergo the remaining sentence, failing
which the concerned police station must proceed against him
forthwith as per law. The appeal is disposed of in the above
terms.
…………………………..….J.
(A.M. Khanwilkar)
…………………………..….J.
(K.M. Joseph)
New Delhi;
February 5, 2019.