Bikash Bora . vs The State Of Assam

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)

JUDGMENT

A.M. Khanwilkar, J.

1. This appeal takes exception to the judgment and order

dated 4th 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 Digitally signed by DEEPAK SINGH the finding that no tangible evidence was produced to Date: 2019.02.05 14:36:55 IST Reason:

establish their guilt. The four accused, who are appellants 2

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 4

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.

3. The High Court rightly concluded that Lakhiram Kurmi

(PW­5) was not an eyewitness. The question is: whether the

circumstances noted by the Trial Court and which commended 5

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 10th 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 7

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 8

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 9

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 10

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.