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