1

IN THE COURT OF SESSIONS JUDGE : LAKHIMPUR :AT NORTH LAKHIMPUR.

SESSIONS CASE NO.67(NL)2010.

P A R T I E S

State of Assam. … Complainant.

-versus-

1. Sri Babul Hazarika.2. Sri Prakash Hazarika. … Accused.

P R E S E N TSri A.K. Das,Sessions Judge,Lakhimpur, North Lakhimpur.

APPEARANCEMr. J. Gogoi, the learned Public Prosecutor, for the State.Mr. Arup Bora, the learned Advocate for the accused persons.

Date of charge : 29.11.2010.Dates of evidence of Prosecution witnesses : 21.02.2011, 06.06.2011, 21.09.2011, 14.11.2011,

12.03.2012, 03.04.2012, 03.09.2012 & 04.12.2012.

Date of evidence of Defence witness : 12.03.2013.Date of statement : 06.02.2013. Date of argument : 05.03.2014 & 21.04.2014.Date of Judgment : 05.05.2014.

J U D G M E N T

1. Accused persons, namely Sri Babul Hazarika and Sri

Prakash Hazarika stand charges under Sections 341/ 302/ 34 IPC for alleged

commission of offence of wrongful restrain of the informant, Sri Dilip Das

and another Sri Ram Krishna Hazarika of Sanatangaon, and also for

committing murder by intentionally or knowingly causing death of Babu

Contd…

2

Das, son of Sri Dilip Das of Sanatangaon under North Lakhimpur Police

Station, while he was trying to save his father from their assault on

11.12.2008 at about 8.30 pm.

Facts of the Case

2. The prosecution allegation as disclosed from the F.I.R in

brief, is that on 11.12.2008 at about 8.30 Pm, while the informant, Sri Dilip

Das alongwith Sri Ram Krishna Hazarika, r/o Sanatangaon was proceeding

towards their homes from market, and when they reached in front of the

house of the accused persons then both the accused persons alongwith three

others armed with deadly weapons wrongfully restrained them on the way

and tried to assault, at this the informant, Sri Dilip Das and said Ram

Krishna Hazarika raised hue and cries and after hearing their hue and cries,

Babu Das, the son of the informant and Sri Papu Das, the son-in-law of the

informant immediately rushed to the place of occurrence to intervene the

matter, at this the accused persons assaulted his son, Babu Das and caused

death to him with the help of one 'Posha' ( a weapon having pointed iron

with handle ).

Investigation

3. To that effect, the Officer-in-charge of North Lakhimpur

PS received the F.I.R. and registered it as North Lakhimpur PS Case

No.805/2008 u/s 341/ 302/ 34 IPC and entrusted Sri Bhaben Dutta, SI of

police to investigate the case. During the course of investigation, the I.O.

recorded the statements of the witnesses, prepared the sketch map of the

place of occurrence, held inquest on the dead body of the deceased with the

help of Executive Magistrate, and subsequently the Officer-in-charge of

North Lakhimpur PS after completing the investigation submitted the

chargesheet against both the accused persons, namely Sri Babul Hazarika

and Sri Prakash Hazarika u/s 341/ 302/ 34 IPC vide Chargesheet No.405

dtd 31.10.2009 in F.I.R No.805/ 2008 dtd. 12.12.2008.

4. The case was committed to the court of Sessions by the

learned Judicial Magistrate 1st class, North Lakhimpur vide Order dtd.

15.06.2010 as the offence u/s 302 IPC is exclusively triable by the court of

Contd…

3

Sessions. Accordingly, on 29.11.2010, a charge u/s 341/ 302/ 34 IPC has

been framed against both the accused persons, namely Sri Babul Hazarika

and Sri Prakash Hazarika, as follows :

That, you on 11.12.2008 at 8.30 pm at Sanatangaon, in

furtherance of common intention of you both had wrongfully restrained the

informant, Sri Dilip Das and another, Sri Ram Krishna Hazarika of

Sanatangaon under North Lakhimpur PS on their way, and thereby

committed an offence punishable u/s 341/ 34 IPC.

Secondly, that, you on the same day, time and place in

furtherance of common intention of you both, had committed murder by

intentionally or knowingly cause death of Babu Das, s/o Sri Dilip Das of

Sanatangaon under North Lakhimpur PS while he was trying to save his

father from your assault, and thereby committed an offence punishable u/s

302/ 34 IPC.

5. The aforesaid charges were read over and explained to

the accused persons, to which they pleaded not guilty and claimed to be

tried.

Plea of the accused persons

6. Accused, Sri Prakash Hazarika has taken the plea of

alibi. The said accused has stated that at the relevant point of time, he was

at his shop house, which is situated at North Lakhimpur town within a

distance of about 2 ½ km from his house and he has been falsely implicated

in this case. The other accused, Sri Babul Hazarika has taken the plea that

on the day of occurrence at about 8 pm, while he alongwith his inmates

were ready to take meal in their house, then the informant, Sri Dilip Das

rebuked him and thereafter said Dilip Das alongwith Sri Ram Krishna, Sri

Papu Das, Sri Suntu Das, Smti Popi Das, Smti Debalata Das and Babu Das

and 6 /7 other persons armed with dao and spears came to their house and

thereafter the informant, Sri Dilip Das assaulted him on his head with lathi

and started breaking his dwelling house and threatened to leave that place

immediately. So, he informed the matter to North Lakhimpur PS, and

accordingly police came and saw his house in broken condition. The said

Contd…

4

accused has taken the plea that as the informant and his son and daughter

came in a body to his house armed with deadly weapon, there was a strive

between the informant party with his inmates and in that strive, the

deceased sustained injury, which caused him death. The said accused has

taken the plea that on the night of occurrence, co-accused, Sri Prakash

Hazarika was not in his house as at the relevant point of time, he was at his

shop house, which is situated at North Lakhimpur town at a distance of 2 ½

km away from his house.

7. I have heard Mr. J.Gogoi, the learned PP and Mr. Arup

Bora, the learned counsel appearing for the accused persons.

Now, the points for determination in this case are –

1) Whether the death of Babu Das, the son of the informant, Sri Dilip

Das of Sanatangaon under North Lakhimpur PS, was an act of

culpable homicide, if so whether it is amounted to murder ?

2) Whether the accused persons, namely Sri Babul Hazarika and Sri

Prakash Hazarika in furtherance of common intention wrongfully

restrained the informant, Sri Dilip Das and another, Sri Ram Krishna

Hazarika of Sanatangaon under North Lakhimpur PS on their way

home on 11.12.2008 at about 11.30 Pm, as alleged ?

3) Whether the accused persons, namely Sri Babul Hazarika and Sri

Prakash Hazarika in furtherance of common intention committed

murder of Babu Das, s/o Sri Dilip Das of Sanatangaon under North

Lakhimpur PS by intentionally/ knowingly causing death of said

Babu Das while he was trying to save his father from the assault of

the accused persons on 11.12.2008 at about 8.30 Pm, as alleged ?

DISCUSSION, DECISION & REASONS ON POINT No.1

8. To ascertain the fact of culpable homicide, let me

consider and appreciate the evidence of the Medical Officer, Dr. Gunin

Kumar Gogoi, PW.10. The said witness deposed that on 13.12.2008, while

he was working as M & HO-1 at North Lakhimpur Civil Hospital, he

performed Post Mortem examination on the dead body of Babu Das, son of

Contd…

5

Sri Dilip Das, and on examination, he found one clean cut incised wound

over the right side of the chest about 4 inch in length and 1 inch in breadth

just transverse in dimension. The wound was just below the right lateral to

the right nipple and perforated the incostal muscles and penetrated right

pleura and right lung and ending in the right side of the vertebral column.

The MO was of the opinion that death was caused due to shock and

haemorrhage due to the injury of the lung and the time of death was 36 – 42

hours. The MO further opined that the injury found on the dead body of the

deceased were sufficient to cause death of a person in the ordinary course of

nature. He has exhibited the Post Mortem report vide Ext.5 and his

signature vide Ext.5(1). Now, from the Ext.2, Inquest Report prepared by

Mrs. Kalpana Deka, the Circle Officer of North Lakhimpur Revenue Circle,

it appears that there was injury on the right side of the chest of the victim,

which is supported by the evidence of the M.O. The Inquest Report and the

evidence adduced by the M.O. and prosecution witnesses supported and

corroborated the fact of injury sustained by the deceased on his right chest.

The M.O (PW.10) has opined that the death was caused due to shock and

haemorrhage due to the injury of lung and the injuries found on the dead

body of the deceased are sufficient to cause death of a person in the

ordinary course of nature. So, from the evidence on record, it appears that it

is a case of culpable homicide amounted to murder.

DISCUSSION, DECISION & REASONS ON POINT Nos.2 and 3.

9. For the sake of convenience, both the points have been

taken together for decision as they are related to each other. To bring home

the charges levelled against the accused persons, prosecution has examined

as many as 11 witnesses, namely PW.1 – Sri Dilip Das, who is the

informant of this case, PW.2 – Sri Krishna Das, who is the witness of

inquest, PW.3 – Sri Ram Krishna Hazarika, who has accompanied the

informant at the time of alleged commission of the offence, PW.4 – Sri

Papu Das, who is the son-in-law of the informant, PW.5 – Smti Devakanti

Das, who is the younger sister of the informant, PW.6 – Sri Niranjan Dutta,

Contd…

6

who is the witness of inquest, PW.7 – Sri Pradip Saikia, who is the eye

witness of the occurrence, PW.8 – Smti Popi Das, who is the daughter of the

informant and eye witness of this case, PW.9 – Md. Safiul Hussain, the I.O.

of the case, who has submitted the chargesheet against the accused persons,

PW.10 – Dr. Gunin Kumar Gogoi, the M.O. and PW.11 – Sri Dilip Dutta,

who is another I.O. of the case.

10. The accused persons have also examined one witness,

namely Smti Prabha Hazarika, who is the wife of the accused, Sri Babul

Hazarika in support of their defence.

11. Now, let me consider and appreciate the evidence of

PW.1, Sri Dilip Das, who is the informant of this case. The said witness

deposed before the court that the occurrence took place on 11.12.2008 at

8.30 pm in front of the house of the accused persons and at the time of

occurrence, when he alongwith Sri Ram Krishna Hazarika were returning

back home from North Lakhimpur town on foot, the accused persons

namely Sri Babul Hazarika and Sri Prakash Hazarika tried to assault them

physically and when they raised alarm then his son, Babu Das and son-in-

law, Sri Papu Das came there with a view to rescue him and then the

accused, Sri Prakash Hazarika struck a blow by a 'Posha' ( an iron pointed

object with handle ) on the right side of the chest of his son, Sri Babu Das,

which crossed through his body and his son, Babu Das immediately fell

down on the ground and succumbed to his injuries at the place of

occurrence. He further deposed that Babu Das was immediately taken to

North Lakhimpur Civil Hospital, where the doctor examined him and

declared him dead. During cross examination, he stated that at the time of

occurrence, he was present at the place of occurrence alongwith Sri Ram

Krishna Hazarika, deceased, Babu Das and his son-in-law, Sri Papu Das.

During cross examination, he also stated that the accused persons had

instituted a criminal case against his wife and in that case, his wife was

acquitted on the day before the occurrence. The defence by way of cross

examination suggested the fact that on the day of occurrence, being over

joyed at the acquittal of his wife, they arranged a feast in their residence and

Contd…

7

he alongwith his family members and Sri Ram Krishna Hazarika attacked

the accused persons and also caused damage to their house being revengeful

at the institution of the criminal case against his wife falsely and there was a

scuffling between both the parties, and somehow the 'Posha' which was

brought by the informant party pierced the chest of his deceased son, which

has been stoutly denied by the said witness.

12. PW.2, Sri Krishna Das is a witness of inquest. The said

witness deposed that the occurrence took place 2 years back and in that

occurrence, Babu Das died. He further deposed that on the next day of the

occurrence inquest was done over the dead body of the deceased by police

and Magistrate and he put his signature on the inquest report vide Ext.2(2).

The accused declined to cross examine the said witness.

13. PW.3, Sri Ram Krishna Hazarika is the vital witness of

this case, who had accompanied the informant at the time of alleged

occurrence. The said witness deposed that the occurrence took place on

11.12.2008 at about 8.30 Pm in front of the house of the accused persons.

The said witness deposed that he alongwith the informant, Sri Dilip Das

were returning back home from market and when they reached near to the

house of the accused persons, both the accused persons alongwith Smti

Prabha Hazarika wrongfully restrained them armed with deadly weapons

and when they raised alarm, then Babu Das @ Pranjal Das, Sri Moina Das

and Sri Papu Das arrived at the place of occurrence and then accused, Sri

Prakash Hazarika hit Moina Das by a piece of brick, and accused, Sri Babul

Hazarika also gave kick blow to Babu Das, as a result, he fell down on the

ground and at this, accused, Sri Prakash Hazarika struck a blow on the chest

of Babu Das by a 'Posha', which pinched the chest of Babu Das, and then

the accused persons fled away from the place of occurrence. During cross

examination, it was suggested that at the time of occurrence, he alongwith

Sri Dilip Das quarrelled with the accused persons in their house and in the

meantime, Babu Das (deceased), Sri Papu Das, Smti Popi Das, Smti

Debakanti Das and Sri Moina Das came to the house of the accused persons

and ransacked the belongings of the accused persons and also assaulted

Contd…

8

accused, Sri Babul Hazarika with a dao and during the scuffle between both

the parties, incidentally the 'Posha' which was brought by the informant side

pierced the chest of the deceased, Babu Das, which has been denied by the

said witness.

14. Now, let me consider the evidence of PW.4, Sri Papu

Das, who is also a vital witness of this case, and who immediately came to

the place of occurrence after hearing hue and cries of the informant. The

said witness deposed that the occurrence took place on 11.12.2008 at about

8.30 Pm in front of the house of the accused persons. The said witness

deposed that after hearing crying voice of Sri Moina Das, he came to the

place of occurrence and found Moina Das lying on the ground and also saw

accused, Sri Babul Hazarika standing at the place of occurrence armed with

‘dao’ and the other accused, Sri Prakash Hazarika with a 'Posha' and Smti

Prabha Hazarika with an iron standing at the place of occurrence. The said

witness, in his evidence categorically, deposed that he saw the accused, Sri

Babu Hazarika giving kick blow to Babu Das, as a result he fell down on

the ground and the other accused, Sri Prakash Hazarika struck a 'Posha'

blow on the chest of Babu Das, which caused him death. He further

deposed that later on, police alongwith Executive Magistrate conducted

inquest on the dead body of the deceased at North Lakhimpur Civil Hospital

and he put his signature on the inquest report as a witness vide Ext.2(3).

During cross examination, it was suggested that at the time of occurrence a

scuffle took place between the informant and the accused persons in the

house of the accused persons and in that scuffle accidentally the 'Posha',

which was taken by the informant party pierced the chest of the deceased,

Babu Das @ Pranjal Das and caused death to him, which has been denied

by the said witness. The said witness in his cross examination admitted that

the accused persons have also instituted a case against him and others

alleging that they had ransacked their house and caused hurt to accused, Sri

Babul Hazarika by a sharp weapon.

15. Now, let me consider the evidence of PW.5, Smti

Debakanti Das, who is the younger sister of the informant, Sri Dilip Das.

Contd…

9

The said witness deposed that after hearing hue and cries, she went to the

place of occurrence and saw accused, Sri Babul Hazarika dragging Babu

Das towards his house. She further deposed that at that time, accused, Sri

Prakash Hazarika struck a spear blow ('Posha' blow) on the chest of Babu

Das, and immediately fell down on the ground and blood was oozing out

from the chest. She further deposed that she picked up the spear and took

the same to their house for showing it to police. She further deposed that

during investigation, she showed the spear, which was used in the

commission of the offence, which was seized by police as Mat. Ext.'Ka'

vide Seizure List, Ext.3 and she has put her signature as a witness of seizure

vide Ext.3(1). During cross examination, it was suggested that on the day of

occurrence during night, Sri Dilip Das and Sri Ram Krishna Hazarika first

assaulted the family members of the accused persons and also damaged his

house and at that time, Sri Papu Das, Smti Popi Das, Sri Pradip Saikia and

some other persons came to the house of the accused, Sri Babul Hazarika

and started assaulting and breaking the house of the accused persons, which

has been completely denied by the said witness.

16. PW.6, Sri Niranjan Dutta, who is the witness of inquest,

deposed that police and Magistrate arrived at North Lakhimpur Civil

Hospital and conducted inquest on the dead body of the deceased, Babu Das

and he put his signature in the inquest report as a witness vide Ext.2(4).

17. PW.7, Sri Pradip Saikia, who is an independent witness

deposed that he had seen the occurrence with his own eyes. The said

witness also deposed that the occurrence took place on 11.12.2008 at 8.30

pm and at that time, he arrived his home from duty and after hearing noise

in front of the house of the accused persons, he proceeded to the place of

occurrence and noticed the accused, Sri Babul Hazarika and alongwith

accused, Sri Prakash Hazarika involved in an altercation with Babu Das and

he then asked them not to quarrel but the accused, Sri Prakash Hazarika

inflicted a blow with a 'Posha' on the abdoman of Babu Das, and as a result,

Babu Das fell down on the ground. He further deposed that said Babu Das

was shifted to North Lakhimpur Civil Hospital, but after examination he

Contd…

10

was declared dead. The said witness further deposed that police came to the

place of occurrence and seized one 'Posha' from Smti Debakanti Das, which

was seized vide Seizure List, Ext.3, and he put his signature on the seizure

list as a witness vide Ext.3(2).

18. Now, let me consider the evidence of PW.8, Smti Popi

Das, who is the daughter of the informant, Sri Dilip Das. The said witness

deposed that the occurrence took place on 11.12.2008 at about 8 pm, and on

that day after hearing hue and cries, she proceeded to the place of

occurrence from her house and on reaching there, she saw accused, Sri

Babul Hazarika inflicting kick blows on Babu Das, and as a result he fell

down on the ground and then immediately accused, Sri Prakash Hazarika

struck a spear blow on the chest of Babu Das. She further deposed that after

seeing the occurrence, she started shouting and immediately her parents

arrived at the place of occurrence and Babu Das was immediately shifted to

North Lakhimpur Civil Hospital, and thereafter he was sent to hospital for

examination, and after examination he was declared dead. She further

deposed that during the course of investigation police seized the spear from

the house of Smti Debakanti Das (PW.5), which was used to cause assault

on Babu Das vide Mat. Ext.'Ka' and the Seizure List, Ext.3, and she put her

signature on the seizure list as a witness vide Ext.3(3). During cross

examination, it was suggested that on the day of occurrence, all her family

members including her husband, Sri Krishna Das, Sri Narayan Dutta and

Sri Ram Krishna Hazarika attacked the house of the accused persons and

ransacked their house and assaulted Babul Hazarika, and as a result he

sustained grievous injuries, which has been denied by the said witness. It

has further been suggested that she had not seen the occurrence due to

darkness and she has deposed falsely against the accused persons as the

deceased happened to be her elder brother, which has been denied by the

said witness.

19. Now, let me consider the evidence of PW.9, Md. Safiul

Hussain, who is one of the Investigating Officers of the case. The said

witness deposed that he took up further investigation of NLPS Case

Contd…

11

No.805/2008 u/s 341/ 302/ 34 IPC, and on perusal of the Case Diary and

relevant documents like Post Mortem Report, F.I.R., Seizure List etc. he

submitted the chargesheet against the accused persons u/s 341/ 302 / 34 IPC

vide Chargesheet (Ext.4). During cross examination, it was suggested that

without finding any material against the accused persons, he has submitted

the chargesheet, which has been denied by the said witness.

20. PW.11, Sri Dilip Dutta deposed that on 12.12.2008 he

was at North Lakhimpur PS as Officer-in-charge of the Police Station and

on that day, after receiving one F.I.R. Ext.1 from Sri Dilip Das, he endorsed

SI Bhaben Dutta to investigate the case, and during the course of

investigation, said Bhaben Dutta recorded the statements of the witnesses ,

prepared sketch map of the place of occurrence and also held inquest on the

dead body of the deceased with the help of Magistrate, Smti Kalpana Deka.

During the course of investigation, the said IO, Bhaben Dutta had seized

one spear (Posha) vide Mat. Ext.3 and subsequently the chargesheet was

filed after going through the Case Diary. He further deposed that the I.O. of

the case, SI Bhaben Dutta had already been expired and as he happened to

be the Officer-in-charge of North Lakhimpur PS at the time of investigation

of the case, he has deposed on behalf of the I.O. SI Bhaben Dutta. During

cross examination, he stated that regarding the same occurrence, accused,

Sri Babul Hazarika has also filed a case against the complainant side and he

has also exhibited certain photographs vide Ext.A, B, C, D, E and F of the

place of occurrence relating to demolition of the houses. During cross

examination, he denied to have made any statement by PW.4, Sri Papu Das

that he went to the place of occurrence after hearing hue and cries of Sri

Moina Das.

21. In support of the defence, the accused persons have

examined one witness, namely Smti Prabha Hazarika. The said witness

deposed that on the day of occurrence at 7.30 – 8.00 Pm, her husband, Sri

Babul Hazarika and daughter, Smit Sangita Hazarika were present in their

house and at that time, her son, Sri Prakash Hazarika was at his shop house

located at PWD colony, North Lakhimpur town, and at that time she was

Contd…

12

preparing to take their meal at night and they were just about to take their

food and at that time, informant, Sri Dilip Das and Sri Papu Das, Babu Das,

Smti Popi Das, Sri Ram Krishna Hazarika and Sri Pradip Saikia came to

their house armed with deadly weapon like 'lathi', 'dao', 'Posha' etc, and they

broke down the bamboo entrance door of their house by giving kick blow

and they entered into their house and the informant, Sri Dilip Das gave lathi

blow on the head of her husband, and thereafter the other accused persons

started assaulting them with the weapons and Babu Das tried to finish her

husband by giving axe blow and at this, she obstructed and pushed him

back and she somehow managed to escape alongwith her injured husband

and daughter, and rushed to the nearby North Lakhimpur PS. She further

deposed that the informant side started committing mischief in their

dwelling house and broke down their utensils, destroyed their clothes and

cut down the CI sheets and broke down their entire house. She further

deposed that while they were proceeding towards North Lakhimpur PS on

the way, she met Sri Biman Gogoi, the mate of his son and she narrated

about the occurrence and asked him to inform the matter to her son, and

subsequently they arrived at the police station. She further deposed that her

husband, Sri Babul Hazarika did not commit any offence and he has not

assaulted Babu Das and her son, Sri Prakash Hazarika at the relevant point

of time at his shop house situated at PWD colony, North Lakhimpur. During

cross examination, it was suggested that her son, Sri Prakash Hazarika

killed Babu Das with the help of a 'Posha', which has been denied by the

DW.

22. Mr. J.Gogoi, the learned P.P. during the course of

argument, submitted that the evidence of PW.1 has fully been supported and

corroborated by the remaining PWs, namely PW.3, Sri Ram Krishna

Hazarika, PW.4, Sri Papu Das, PW.5, Smti Debakanti Das, PW.7, Sri Pradip

Saikia and PW.8, Smti Popi Das in vital and material points and there is

nothing to disbelieve the evidence of the aforesaid witnesses. He further

argued that the informant, PW.1, Sri Dilip Das, PW.3, Sri Ram Krishna

Hazarika, PW.5, Smti Debakanti Das, PW.7, Sri Pradip Saikia and PW.8,

Contd…

13

Smti Popi Das are all eye witnesses of this case and they had seen the

occurrence of assault by the accused, Sri Prakash Hazarika on the person of

Babu Das with a spear (Posha). He further argued that one of the accused,

Sri Babul Hazarika has taken the plea of right of private defence by stating

that on the day of occurrence, the informant alongwith others came to his

house, demolished and ransacked his house and he was also assaulted by

the informant side, for which there was a bodily strive between both the

parties and as a result the deceased sustained injuries from the spear (Posha)

which was being carried by the informant side. In this regard, he submitted

that prior to this occurrence, there was a quarrel in between the two parties

for which accused, Sri Babul Hazarika had to file a criminal case against the

informant, Sri Dilip Das, his son, Sri Papu Das and Smti Debalata Das, his

wife, and that occurrence took place at about 7.30 pm, but the present

occurrence took place at about 8.30 pm i.e., after one hour. So, as the time

of occurrence of both the cases, are different so the plea taken by the

accused, Sri Babul Hazarika is not acceptable. He further argued that one of

the co-accused, Sri Prakash Hazarika has also taken the plea of alibi that at

the time of occurrence, he was away from the place of occurrence and he

was at his shop house, which is located at a distance of about 2 ½ km away

from his house. But, the accused failed to produce any material to show that

at the relevant point of time when the occurrence took place the accused

was at his shop house. He further argued that to prove the plea of alibi the

accused has examined one witness, Smti Prabha Hazarika, who is none but

his own mother, who is a highly interested witness and her evidence can not

be taken as reliable evidence. As the accused has failed to prove the plea of

alibi by producing cogent and convincing material, the plea of alibi can not

be accepted.

23. Controverting the above submission, Mr. Arup Bora, the

learned counsel appearing for the accused persons, during the course of

argument, submitted that the FIR disclosed the name of Sri Babul Hazarika,

Sri Prakash Hazarika and three others and while giving evidence by the

informant he has stated the names of the accused persons, namely Sri Babul

Contd…

14

Hazarika and Sri Prakash Hazarika. The eye witnesses, namely PW.1, Sri

Dilip Das, PW.3, Sri Papu Das, PW.4, Sri Ram Krishna Hazarika, PW.7, Sri

Pradip Saikia and PW.8, Sri Papu Hazarika have given two versions

regarding involvement of the accused persons with the commission of the

alleged offence. He further argued that when there are two versions

surfaced in a prosecution case, one contradicting the other, version which

favours the accused shall be accepted. In this context, he has relied upon the

decision of the Honourable Gauhati High Court, reported in (2013) 1

Gauhati Law Reports, 51 in case of Gani Miah and others – appellants vs.

State of Tripura – respondent. During the course of argument, he further

submitted that if two views are reasonably possible, one that the accused is

guilty and the other that he is innocent, then the benefit of doubt goes in

favour of the accused. In this context, he has relied upon the decision of the

Honourable Supreme Court, reported in 2011 SAR (Crl.) 367 SC in case of

K.P.Thimmappa Gowda – appellant vs. State of Karnataka, where the

Honourable Supreme Court in para-12 of the said judgment, observed as

follows : “In a criminal case, rule is that the accused is entitled to benefit of

doubt. If the court is of the opinion that, on the evidence of two views are

reasonably possible, one that the appellant is guilty, and the other that he is

innocent, then the benefit of doubt goes in favour of the accused”.

24. During the course of argument, he further submitted that

as the informant party entered into the house of premises of the accused

person and demolished and ransacked their house, so the accused, Sri Babul

Hazarika has every right to protect his body and property and he can

exercise the right of private defence to protect his body and property. In this

context, he has relied upon the decision of the Honourable High Court

reported in (1986) 2 Gauhati Law Reports 172 in the case of State of Assam

– appellant vs. Md. Manir Ali & ors. – Respondents, where the Honourable

Gauhati High Court has observed as follows : “A mere reasonable

apprehension is enough to exercise the right of private defence into

operation. The right is available against a danger, imminent, present and

real. The right is conferred to stop the other party from committing the

Contd…

15

offence. The right of private defence is codified in Section 96 to 100 IPC. If

acting in good faith, to preserve and conserve the property or to prevent the

offence against his property, actions are taken by a person, they do not

amount to offence as they fall within the provisions of Sec. 96 to 100 IPC.

25. Mr. Arup Bora, the learned counsel appearing for the

accused persons during the course of argument, further submitted that the

prosecution witnesses have not given the true picture of the occurrence and

they have not stated the whole truth. In such a case, the court should make

an effort to discengage the truth from the falsehood and to shift the grain

from the shaff. In this context, he has relied upon the decision of the

Honourable Supreme Court reported in AIR 1954 SC 31 (Vol.41 CN 12) in

case of Abdul Gani and others – appellants vs. State of Madhya Pradesh.

He further argued that on the same day of occurrence at the relevant point

of time, the accused persons have also instituted one criminal case against

the informant party for the alleged demolition and ransacking of their

dwelling house by the accused party and causing hurt to one of the accused,

Sri Babul Hazarika and the occurrence took place in the premises of the

accused persons. So, in such a case, the informant party is the aggressor and

in such a case, the accused persons have got every right to exercise their

right of private defence of their body and property. He further argued that

the accused, Sri Babul Hazarika also sustained injuries on his person and

there was no explanation from the prosecution side as to how the accused,

Sri Babul Hazarika sustained injuries on his head. So, non-explanation of

the injuries on the accused is fatal to the prosecution case. In this context,

he has relied upon the decision of the Honourable Supreme Court reported

in 2003(5) CRJ 403 Supreme Court of India. State of Madhya Pradesh –

appellant vs. Mishrilal (dead) and others – respondents. He has also relied

upon the decision of the Honourable Gauhati High Court reported in 1981

Cri.LJ. NOC 4 (Gauhati) in case of State of Assam – appellant vs. Sofiuddin

Sheikh and others – respondents, where the Honourable Gauhati High Court

observed as follows : “In a murder case, non-explanation of the injuries

sustained by the accused at about the time of occurrence or in the course of

Contd…

16

altercation is a very important circumstance from which the court can draw

the following inference : (i) That the prosecution has suppressed the genesis

and the origin of the occurrence and as thus not presented the true version.

(ii) That the witnesses should have denied the presence of the injuries on

the person of the accused are lying on a most material point and therefore

their evidence is unreliable. (iii) That in case there is a defence version

which explains the injuries on the person of the accused it is rendered

probable so as to throw doubt on the prosecution case. The omission on the

part of the prosecution to explain the injuries on the person of the accused

assumes much greater importance where the evidence consists of interested

or inimical witnesses or where the defence gives a version which competes

in probability with that of the prosecution one.

26. Mr. Arup Bora, the learned counsel appearing for the

accused persons, during the course of argument, further submitted that for

exercising the right of private defence, it is not necessary that the party

exercising it must actually receive some injury at the hands of the aggressor.

It is a preventive and not punitive right. He further submitted that in the

instant case, however the accused, Sri Babul Hazarika has sustained certain

injuries on his head, so the accused has every right to exercise the right of

private defence to protect his body. In this context, he has relied upon the

decision of the Honourable Supreme Court reported in AIR 1973 SC 473

(V.60 C.92) in the case of Deo Narain- appellant vs. State of Uttar Pradesh

– respondent. He further argued that in the instant case there is no evidence

to show that there was meeting of mind between the accused persons and as

such Section 34 IPC has no application in this instant case. In support of his

argument, he has referred the decision of the honourable Supreme Court

reported in 2009 SAR (Criminal) 733 in case of Javed Alam – appellant vs.

State of Chattisgarh and another – respondents. He further argued that

where a person has genuine apprehension that his adversary is going to

attack him and he reasonable believe that attack will result in grievous hurt

in that event he can go to the extent of causing the latter's death even though

the latter may not have inflicted any injury on him. In this regard, he

Contd…

17

has relied upon the decision of the Honourable Supreme Court reported in

2010 SAR (Criminal) 201 SC in case of Darshan Singh -appellant vs. State

of Punjab and another.

27. I have perused the entire legal evidence on record and

heard Mr. J.Gogoi, the learned P.P. for the State, and Mr. Arup Bora, the

learned counsel appearing for the accused persons.

28. On perusal of the entire legal evidence on record, it

appears that on the day of occurrence, the accused persons have also

instituted one criminal case against the informant and others with the

allegation of assault and destroying their dwelling house, and the record of

that case has been called for by this court on the prayer of the accused

persons, and on perusal of both the case records, this court vide Order dtd.

18.09.20013 disposed the petition so filed by the accused persons. The

operative part of the Order speaks as follows - “From the record of GR

Case No.1569/2008, it appears that the case was registered and initiated on

the basis of the FIR lodged by Sri Babul Hazarika against Sri Dilip Das

and two others alleging that on 11.12.2008 at about 7.30 Pm, all the

accused persons in a body came to his house armed with deadly weapons

like lathi, dao etc. and assaulted him and his wife, and also his daughter,

Smti Sangita Hazarika and caused grievous injuries on his person, and to

that effect police investigated into the case and submitted chargesheet vide

CS no.435/2012 dtd. 29.09.2012 in FIR No.803/2008 dtd. 12.12.2008 u/s

448/ 352/ 427/ 34 IPC. I have also perused the connected record of

Sessions Case No.67(NL)2010. It appears that informant, Sri Dilip Das

lodged one FIR against the accused, Sri Babul Hazarika and Sri Prakash

Hazarika and two others alleging that on 11.12.2008 while he was

proceeding from the market towards his home at about 8.30 pm, the

accused persons restrained him on the way with lathi, dao and spear and

assaulted him on his person and when he raised objection, his son, Babu

Das and son-in-law, Sri Papu Das came to the place of occurrence and

tried to save him, but the accused persons severally assaulted him with

spear and caused death to him. It appears that after concluding the

investigation, police has submitted Contd…

18

chargesheet vide CS No.405 dtd. 31.10.2009 in FIR No.805/2008 dtd.

12.12.2008 u/s 341/ 302/ 34 IPC. Now, on scrutiny and on perusal of both

the cases, it appears that the place of occurrence and time of occurrence

are also different. As such, both the cases can not be taken up as cross

cases. As such, the called for record of GR Case No.1569/2008 be sent back

to the learned Chief Judicial Magistrate, Lakhimpur, for trial.”

29. So, the case, which has been filed by the accused persons

can not be treated as cross case as the two cases are not related to the same

incident. The case, which was filed by the accused persons took place about

one hour before the occurrence of the present case and not connected with

one incident. In Dahabhai Chhanganbhai Thakkar vs. State of Gujarat

reported in AIR 1964 SC 1563, the Honourable Supreme Court has

observed as follows : “It is the fundamental principle of Criminal

Jurisprudence that the accused is presumed to be an innocent and therefore

the burden lies on the prosecution to prove the guilt of the accused beyond

reasonable doubt. The prosecution, therefore, in a case of homicide shall

prove beyond reasonable doubt that the accused has caused death with the

requisite intention described in Section 299 of the Penal Code. Generally

the burden never shift and it always rest on the prosecution. But under

section 165 of the Evidence Act, burden of proof extending of the

circumstances bringing the case within the exception lies on the accused

and the court shall presume the absence of such circumstance. Under

Section 105 of the Evidence Act, 1872, the burden of proof is on the

accused, who set up the plea of self defence and in the absence of proof, it

is not possible for the court to presume to truth of the plea. In Jaydev vs

State of Punjab reported in AIR 1963 SC 612, it was observed that as soon

as the cause for reasonable apprehension disappears and the threat has

either been destroyed or has been put to route there can be no occasion to

right of private defence.”

30. In my considered opinion, this was a case of intentional

murder and not something done in exercising the right to protect the body

and property of the accused persons, for which the accused persons are not

Contd…

19

entitled to get protection under the right of private defence. In this instant

case, one of the accused namely Sri Prakash Hazarika has taken the plea of

alibi that on the day of occurrence at the relevant point of time, he was at

his shop house, which is located at a distance of about 2 ½ km away from

the place of occurrence. In such a situation, prosecution has to discharge the

burden satisfactorily. Once the prosecution is successful in discharging the

burden it is the incumbent on the accused who takes the plea of alibi to

prove it with absolute certainty. It is the rule of evidence recognised by

Section 11 of the Evidence Act that facts inconsistent with the facts in issue

are relevant. When the accused took the plea of alibi, the burden of proof

lies on him u/s 103 of the Evidence Act. The plea of alibi is the weakest

type of plea and can not be given any weight unless the same is proved

from very cogent, convincing and plausible evidence. The accused raising

the plea of alibi has to discharge the burden by producing satisfactory,

reliable and authenticate evidence that his presence at the place of

occurrence at the relevant point of time was not possible because of his

presence at the relevant point of time at other place. In a case of Abdul Hai

and others vs. State of Assam, reported in Gauhati Law Reports 2007 (275),

the Honourable Gauhati High Court observed as follows : “The plea of alibi

can be accepted only when it is shown that it was impossible for the

accused to be present at the place where the crime was committed”. Now,

let me examine how the accused has proved the plea of alibi by adducing

any cogent and authenticate evidence that at the relevant point of time, he

was at other place and not at the place of occurrence. To prove the said fact

the accused, Sri Prakash Hazarika has examined only one defence witness

as DW.1, who is his mother. DW.1, Smti Prabha Hazarika, who has stated

that at the relevant point of time, the informant and others came to her

house, demolished and ransacked her dwelling house and assaulted her

husband accused, Sri Babul Hazarika, and at that time, her son accused, Sri

Prakash Hazarika was at his shop house which is located at PWD Colony,

about 2 ½ km away from the place of occurrence, and after the occurrence

when she was proceeding towards North Lakhimpur PS on the way, she met

Contd…

20

one Sri Biman Gogoi, one of the friends of her son, and through said Biman

Gogoi, she had informed the matter to her son, Sri Prakash Hazarika, but

said Biman Gogoi was not examined by the defence to prove the said fact.

It appears that the DW is a highly interested witness and in absence of any

satisfactory, reliable and authenticate evidence, it can not be said that at the

relevant point of time the accused, Sri Prakash Hazarika was not at the

place of occurrence and he was in another place at the relevant point of

time. So, after going through the entire legal evidence on record, I constrain

to hold that the accused failed to prove the plea of alibi by producing

satisfactory, reliable and authenticate evidence, for which the plea of alibi

taken by accused, Sri Prakash Hazarika is rejected.

31. In this instant case, one of the accused, Sri Babul

Hazarika has taken the plea of right of private defence of his body and

property and to substantiate that plea, he has examined his wife, Smti

Prabha Hazarika as DW.1, who deposed that on the day of occurrence, the

informant and others came to his house, demolished and ransacked his

dwelling house and also assaulted her husband, Sri Babul Hazarika and to

that effect, Sri Babul Hazarika had lodged one case against the informant

and others and at that time, co-accused, her son, Sri Prakash Hazarika was

away from home as he was at his shop house situated at a distance of 2 ½

km away from the place of occurrence.

32. I have perused the entire legal evidence on record. It

appears that prosecution has examined as many as 11 witnesses, out of

which PW.1, Sri Dilip Das, who is the eye witness of this case. The said

witness categorically deposed that on the day of occurrence while he was

alongwith Sri Ram Krishna Hazarika returning back home from the market

on foot and on the way in front of the house of the accused persons, both

the accused, namely Sri Babul Hazarika and Sri Prakash Hazarika

wrongfully restrained them on the way, and the accused, Sri Prakash

Hazarika struck a blow by a 'Posha' (an iron pointed object with handle ) on

the right side of the chest of his son, Babu Das, which crossed through his

body and he immediately fell down and succumbed to his injuries at the

Contd…

21

place of occurrence. The said fact has also been supported and corroborated

by another witness, Sri Ram Krishna Hazarika, who was also accompanying

the informant, Sri Dilip Das at the time of occurrence. The said witness, Sri

Ram Krishna Hazarika has categorically deposed that on the day of

occurrence at the relevant point of time, while he alongwith Sri Dilip Das

were proceeding from the market, on the way, they were intercepted by the

accused persons, Sri Babul Hazarika, Sri Prakash Hazarika and Smti Prabha

Hazarika, and thereafter the accused, Sri Prakash Hazarika came and struck

a blow on the chest of Babu Das by a 'Posha', which pinched the chest of

Babu Das and they fled away from the place of occurrence. The evidence of

PW.3 has been also supported and corroborated by PW.4, who is the eye

witness of this case. The said witness has categorically deposed that

accused, Sri Babul Hazarika gave kick blow to Babu Das and as a result he

fell down on the ground and thereafter other accused, Sri Prakash Hazarika

struck one 'Posha' blow on the chest of Babu Das, which caused him to

death. PW.5, Smti Deva Kanti Das is also a vital witness of this case. The

said witness has deposed that she saw the occurrence with her own eyes that

the accused, Sri Babul Hazarika dragging Babu Das towards his house and

accused, Sri Prakash Hazarika struck a spear blow on the chest of Babu Das

and immediately Babu Das fell down on the ground and blood was oozing

out from the chest. The said witness further deposed that she picked up the

spear and took the same to their house and she showed the spear which was

used in the commission of the offence to police, and accordingly police

seized the spear vide Ext.3, seizure list, and she put her signature in the

seizure list vide Ext.3(1). PW.7, Sri Pradip Saikia is also an eye witness of

the occurrence. The said witness has categorically deposed that on the day

of occurrence, he heard noise in front of the house of accused persons and

he went to the place of occurrence and on reaching there, he noticed that

accused, Sri Prakash Hazarika alongwith Sri Babul Hazarika involved in

altercation with Babu Das, and thereafter accused, Sri Prakash Hazarika

inflicted a blow with a 'Posha' on the abdomen of Babu Das, as a result of

which Babu Das fell down on the ground. PW.8, Smti Popi Das is also an

Contd…

22

eye witness of this case, who categorically deposed that she saw accused,

Sri Babul Hazarika inflicting kick blows on Babu Das and as a result Babu

Das fell down on the ground, and then immediately accused, Sri Prakash

Hazarika struck 'Posha' blow on the chest of Babu Das. In this instant case,

there may be a slight contradiction in the evidence of prosecution witnesses,

but in my considered opinion that can not demolish the prosecution case. In

a Case Law reported in 2002(6) SCC 81 in Kushi Muchi and others vs.

State of Bihar, the Honourable Supreme Court observed that “in a criminal

trial even after major portion of the evidence is found to be deficient in a

case the residue is sufficient to prove the guilt of the accused,

notwithstanding acquittal of a number of other co-accused persons his

conviction can be maintained. It is the duty of the court to separate the

grain from chaff, where the chaff can be separated from the grain, it would

be open for the court to convict accused notwithstanding the fact that the

evidence has been found to be deficient to prove the guilt of other accused

persons. Falsity of particular material witnesses or material particular

would not ruin the prosecution case from the beginning to the end, it

observed. The Apex Court further held that one hardly come across a

witness whose evidence does not contain a grain of untruth or at any rate

exaggeration, embroidery or embellishment and attempt has to be made to

separate grain from the chaff, the truth or falsehood commenting the duty

of the court in a criminal trial. It observed that some discrepancies which

would be therein list each and every case it should not weigh with the court

so long it does not materially affect the prosecution case. In a case,

discrepancies pointed out which is the realm of pebbles, the court should

treat upon it, if the same are boulders the court should not make an attempt

to jump over the same.” In this context, the Honourable Apex Court

referred to its observation in its earlier decision rendered in Indore Singh vs

Delhi administration, reported in 1978 SCC 161 to that effect that proved

beyond reasonable doubt is a guideline, not a fattish and a guilty man can

not get away with it because truth suffers from some infirmity when

projected through human process. Contd…

23

33. Considering the entire evidence on record, I find and

hold that the prosecution has variably proved this case against the accused

persons, namely Sri Babul Hazarika and Sri Prakash Hazarika u/s 341/ 302/

34 IPC, and accordingly, I find both the accused guilty under the aforesaid

Sections of Law, and accordingly I convict both the accused persons, Sri

Babul Hazarika and Sri Prakash Hazarika under the said Sections of Law.

HEARING ON THE POINT OF SENTENCE

34. I have heard the accused persons, namely Sri Babul

Hazarika and Sri Prakash Hazarika on the point of sentence, which may be

passed against them u/s 341/ 302/ 34 IPC. The statements of both the

convicts, namely Sri Babul Hazarika and Sri Prakash Hazarika have been

recorded in separate sheets of paper and tagged with the record as provided

u/s 235 CrPC.

35. The learned Public Prosecutor has not placed any record

of previous conviction of the accused persons. There has been no previous

submission in respect of any criminal antecedents of the accused persons.

SENTENCE

36. I have considered all the aspects and the attending

circumstances. I am of the view that the facts and circumstances of the case

do not warrant the extreme sentence of capital punishment as it does not fall

under the category of the rarest of rare cases. Only alternative sentence u/s

302 IPC is that LIFE IMPRISONMENT.

37. Accordingly, accused persons, namely Sri Babul

Hazarika and Sri Prakash Hazarika are, hereby, sentenced to undergo

imprisonment for life and also to pay fine of Rs.5,000/- (Rupees Five

Thousand) only each, i.d., Rigorous Imprisonment for 3 (Three) months

each for the offence u/s 302 IPC, and also to suffer Rigorous Imprisonment

for one month each for the offence u/s 341 IPC.

38. Both the sentences shall run concurrently. The period

already undergone by the accused as UTP shall be set off as provided u/s

428 CrPC.

Contd…

24

39. The bailbond shall stand discharged.

40. A free copy of the Judgment be furnished to the accused

persons as provided u/s 363 CrPC.

Judgment is pronounced and delivered in open court

under seal of this Court with my signature on this 5th day of May, 2014.

(A.K.Das) Sessions Judge,

Lakhimpur, North Lakhimpur.Dictated & corrected by me -

(A.K.Das)Sessions Judge,Lakhimpur, North Lakhimpur.

Transcribed & typed by-S.Kshattry, Stenographer.

A P P E N D I X

PROSECUTION WITNESSES :

PW.1 - Sri Dilip Das.PW.2 - Sri Krishna Das. PW.3 - Sri Ram Krishna Hazarika.PW.4 - Sri Papu Das.PW.5 - Smti Deba Kanti Das.PW.6 - Sri Niranjan Dutta.PW.7 - Sri Pradip Saikia.PW.8 - Smti Popi Das.PW.9 - Md. Safiul Hussain, I.O.PW.10 –Dr. Gunin Kumar Gogoi, M.O.PW.11 – Sri Dilip Dutta, the then OC of North Lakhimpur PS.

Contd...

25

List of Exhibits :

Ext.1 - F.I.R. Ext.2 - Inquest Report.Ext.3 - Seizure List.Ext.4 - Chargesheet.Ext.5 - Post Mortem Report.Ext.6 – Sketch map of the place of occurrence. Ext.A - Requisition letter.Ext.B, D & E- Photographs of the place of occurrence.Ext.A, C & F– Photographs of the deceased.

(A.K.Das) Sessions Judge,

Lakhimpur, North Lakhimpur.