Babul Bora vs State of Assam

The Appellant stands convicted u/s 302 IPC and sentenced to undergo imprisonment for life with fine of Rs. 2,000/-, or in default of payment of fine to suffer one years R.I. He has also been convicted u/s 376 IPC and sentenced to undergo 3 year''s R.I. with fine of Rs. 1,000/-, or in default of payment of fine to suffer six month''s R.I. He has further been convicted u/s 324 IPC and sentenced to undergo R.I. for one year with fine of Rs. 500/- or in default of payment of fine to suffer three months R.I.

Briefly stated the prosecution case was that on 3rd September, 1990 around 2-30 P.M. in village Teliagaon, the accused inflicted Dao blows on his father Bhogiram, resulting in the following injuries:

A sharp incised cut wound on the scalp over the parietal and occipital bone-cutting, the bone and exposing the brain membrances.

An incised wound on the superior suspect of right shoulder joint cutting the acromion process. Size 8x2x4 c.m.

Two incised wounds on the middle of the right forearm. Size 3x2x1 c.m.

Two incised wounds on back of neck:

(i) on upper part cutting 3rd cerficial completely. 12x3x6 c.m.

(ii) on middle part 5x2x2 c.m. one deep penetrating wound on right lateral wall of chest. Size 2x1x3 cm.

In the course of the same incident his mother Patani Bora, P.W.-6 was also assaulted by a Dao, she sustained the following injuries:

One cut injury with sharp margin extending from left clavicle by live side of the neck up in left ear and face. 4"x�"x muscle deep. The paticoat was in shock and she was advised to attend Tezpur Civil Hospital. The injury was fresh, grievous in nature and caused by sharp weapon.

Rupa Bora, P.W.-4, the younger sister of the accused, also suffered the following injuries:

One stitch wound over the outer aspect of left arm margin sharp. Measurement could not be taken due to the stitch.

Injury over parital region. Incised wound 2�" x� x muscle deep.

The incident was reported to the police by P.W.-5 Tankeswar Bora on the basis of which a case u/s 302 IPC was registered and taken under investigation, On completion thereof the accused was charged and tried for the above offence. The trial court found him guilty and sentenced him as already noted above. Hence this appeal from Jail.

Since the Appellant was not assisted or represented by any counsel, Miss B. Choudhury was appointed Amicus Curiae. We have heard the learned Amicus Curiae as also the learned Public Prosecutor appearing for the Respondent State.

It is a case of patricide, coupled with assault on mother and younger sister, who have also been examined as prosecution witnesses. There is no reason to disbelief their testimony as they have no axe to grind against the accused or to falsely implicate him in the case. Apart from these two witnesses, the mother and daughter, there is evidence of P.W.-1 Rupram Bora, the younger brother of the deceased Bhogiram. He was returning home after grazing cattle and had seen the accused brandishing dao at the gate way. Rupa was seen bleeding when P.W.-6, the mother of lire accused came to intervene she was also assaulted. P.W.-1 was also not spared the accused pushed him down with his elbow. Apart from the evidence of injured witnesses P.W.4 and 6, there is overwhelming evidence available on record pointing to the accused as the perpetrator of the crime. It is further corroborated by medical evidence, the injury reports and the postmortem examination report as submitted by P.W.-10 and P.W.-11.

Faced with these overwhelming evidences, learned Amicus Curiae submitted that the accused had no motive to commit the crime atleast none is alleged by the prosecution. In it case depending on the eye witness account motive is hardly of any consequence. It is only when the case solely hinges on circumstantial evidence that motive has its relevance. It was also urged that the accused might have committed the crime during lucid interval of insanity. We have gone through the evidence and the statement of the accused. If insanity is created and pleaded as a defence it is the burden of the accused to establish the same. Going through his statement as recorded u/s 313 Code of Criminal Procedure, it would be seen that his plea was one of false implication. As already noted above, we find no earthly reason for the mother and sister of the accused to falsely implicate him in the case. It was not his defence nor is there any suggestion in the cross-examination of witnesses that he committed the crime under the influence of some passion or insanity. There is not even a whisper about it. In such circumstances, in considering the plea of insanity would be nothing short of a pure academic indulgence.

It was urged that the offence u/s 326 IPC is not made out. This charge was with reference to voluntarily causing grievous hurl to both the mother as well as the sister. So far as the injury caused to the sister, P.W.-4 is concerned it has been found to be simple and accordingly the accused Appellant convicted u/s 324 IPC. It is in respect of his mother that the charge u/s 326 IPC has been found by the trial court as proved. It necessarily takes us to the medical evidence of P.W.-11, who had examined the injured. The injury as already noted above has been described by the Doctor as grievous. Going through his cross-examination except for an omission on his part to note in the Emergency Register that he had examined the patient (the entries are in his hand and signature), there is nothing on record to suggest that the injury as described by him was not grievous. There is no challenge to his opinion on this point, even otherwise considering the size and dimension of the injury as found on P.W.-6, the opinion given by P.W.-11 cannot be said to be baseless, it squarely falls within the definition of grievous hurt. The patient was required to be shifted to take to Civil Hospital. We do not find any justification for interfering with the conviction as recorded by the trial court on this count. It was lastly urged by learned Amicus Curiae that the fine as imposed, considering the poor condition of the Appellant is wholly uncalled for.

As it is, the Appellant has already been sentenced to undergo life imprisonment and this payment of fine, if at all it is made, would be the burden of the victims, the brother, mother and the sister who were all victims of the assault by the accused Appellant. In this view of the matter, apart from poverty, as urged by the learned Amicus Curiae, we find this imposition of fine to be redundant and unduly burdening those left behind.

So far as the term of imprisonment is concerned, that docs not call for any interference. The imposition of fine on each count deserves to be set aside, it is accordingly set aside and the sentences of imprisonment are directed to run concurrently, With this modification of sentence this appeal fails, ii is accordingly dismissed,

Before parting, we would like to put on record our appreciation of the assistance rendered by learned Amicus Curiae in disposal of this appeal. She will be entitled to her remuneration as permissible under the Rules.