IN THE COURT OF THE SESSIONS JUDGE, KAMRUP (M), AT GUWAHATI

PRESENT: Sri A. Borthakur,Sessions Judge,

Kamrup(M), Guwahati.

JUDGMENT IN SESSIONS CASE NO. 74/2014Under Section 302 of the I.P.C.

(Arising out of G. R. Case No. 5006 of 2012)

State of Assam

–VS–

1. Sri Chandradeep Bhagat,S/O.- Sri Mohadev Bhagat,

Vill.- Chandra Choudhury Path,H.No.-34, P.S.- Basistha, Guwahati,

Dist.- Kamrup(M), Assam.

[Committed by Mrs. I. Barthakur, Sub-Divisional Judicial Magistrate (S) No.1, Guwahati, Kamrup (M)]

A P P E A R A N C E

For the State : H.K. Deka, Public Prosecutor.

For the Accused : H.K. Baruah, Advocate.

Date of framing charges : 17.05.2014

Date of Evidence : 13.06.2014, 11.07.2014,

06.09.2014, 05.12.2014, 21.02.2015.

Date of Argument : 08.04.2015

Date of Judgment : 23.04.2015

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J U D G M E N T

1. The accused and the deceased are neighbours. In a

confused quarrel, during night hours the deceased sustained

multiple injuries and in the result, he died. The evidence reveals

involvement of many persons, whose identity could not be

established beyond doubt.

(A) PROSECUTION CASE:2. One Shri Pranab Das, son of Shri Mahananda Das,

House No. 33, Bhetapara, Chandra Choudhury Path, Guwahati

lodged an F.I.R., on 17.05.2012, before the officer In-charge of

Basistha Police Station alleging that on 16.05.2012 at about 11.30

p.m., an incident of altercation took place near his house, when his

tenant Nayan Das (since dead) intervened in the on going

altercation, the accused Shri Chandradeep Bhagat hurled a piece of

brick towards him, which hit on his head. After the incident, Nayan

Das was promptly shifted to Guwahati Medical College and Hospital

(G.M.C.H.), but the doctor declared him brought dead.

(B) INVESTIGATION:3. Based on the above F.I.R., Basistha P.S. Case No.

324/2012, u/s 302 of I.P.C., dated 17.05.2012, was registered.

Inspector Banamali Handique, the officer In-charge, Basistha P.S.

endorsed the case to S.I. Ratneswar Barman for investigation. Here

it is pertinent to be mentioned that before receipt of the F.I.R., the

informant Shri Pranab Das reported the occurrence at Basistha P.S.

and the said information was entered in Basistha P.S., G.D. Entry

No. 688, dated 17.05.2012, at 2 a.m. and accordingly, as directed by

the officer In-charge, S.I. Ratneswar Handique launched

investigation visiting the place of occurrence.

4. In course of investigation, the I.O. drew up the sketch

map of the place of occurrence, examined the witnesses, arrested

the accused at Lalmati area, seized the piece of brick used in

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commission of the offence, prepared the inquest report on the body

of the deceased at G.M.C.H., sent the dead body to the Forensic

Science Department of G.M.C.H. for post-mortem examination and

on completion of investigation, laid a charge-sheet u/s 302 of the

I.P.C. against the accused.

(C) TRIAL: 5. Since the charge-sheeted offence, u/s 302 of the

I.P.C., is exclusively triable by the court of Sessions, the learned

Sub-Divisional Judicial Magistrate (S) No.1, Kamrup (M), Guwahati,

vide order, dated 21.04.2014, passed in G.R. Case No. 5006 of 2012, after compliance of the necessary formalities u/s 209 of the

Cr.P.C., committed the case to this court of Sessions for trial.

Hence, the trial commenced in the court of Sessions, Kamrup (M), at

Guwahati.

6. Thereafter, on consideration of the prima facie

evidence collected during investigation and hearing the learned

counsel of both the sides, my learned predecessor framed a formal

charge u/s 302 of the I.P.C. against the accused vide order, dated

17.05.2014. The charge was read-over and explained to the

accused, to which he pleaded not guilty and claimed to stand trial.

7. In order to prove the charge, above mentioned, the

prosecution has examined 8(eight) witnesses, while the defence

cross-examined 7(seven) of them.

8. On closing the evidence of the prosecution side, the

statement of the accused was recorded u/s 313 of Cr.P.C. vide

order, dated 10.03.2015. The accused pleaded not guilty and

declined to examine any witness in defence.

9. I have heard the argument advanced by Mr. H.K. Deka, the learned Public Prosecutor and Mr. H.K. Boruah, the

learned defence counsel.

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(D) POINTS FOR DETERMINATION: 10. From the evidence on record and on the basis of oral

submission of the learned counsel of both the sides, the following

points emerged for determination:

(i) Whether the death of Nayan Das was an act of

‘Culpable homicide’? if so

(ii) Whether the death of Nayan Das was an act of

‘Culpable homicide’ amounting to ‘murder’? and

(iii) Whether the accused Chandradeep Bhagat committed

the offence?

(E) THE DECISION AND THE REASONS THEREFOR:11. Legal Position:

[Sections 299, 300, 302 of I.P.C.]Homicide means the killing of human being by a human

being. A person committed culpable homicide, if the act by which

death is caused is done with the- (a) intention of causing death, or

(b) intention of causing such bodily injury as is likely to cause death,

or (c) knowledge that the act is likely to cause death. ‘Intent’ and

‘Knowledge’ in the ingredients of Section 299 of I.P.C. postulate the

existence of positive mental attitude and this mental condition is the

special mens rea necessary for the offence.

12. The offence of ‘murder’ has been defined in Section

300 of I.P.C. The basic difference between the ‘Culpable homicide’

and ‘murder’ lies in the degree of the gravity of the offence. In order

to bring home the offence within the parameter of Section 300 of

I.P.C., the prosecution must establish that the assailant had the

definite intention to cause death of the deceased or that the offender

had the knowledge that the wounds which he was inflicting would be

sufficient to cause the death or that the same will be dangerous to

human life. Therefore, the essential ingredients of the offence have

to be deduced and inferred from a series of facts, like weapon used

in the crime, nature of the wound, situs of the wound and other

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attending circumstances. The burden lies on the prosecution to

establish that the act alleged to constitute the offence of ‘murder’

was really the act of a person other than the deceased and at the

same time, the onus of proving exceptions to Section 300 of I.P.C.,

so as to reduce the offence of murder to one of ‘Culpable homicide’

not amounting to ‘murder’ lies on the accused.

Now, in the context of the above requirements of the

facts to be proved, let us look at the evidence, on record.

(F) EVIDENCE:13. P.W.-1 Shri Pranab Das is the landlord of the deceased’s rented house and the informant in this case. His

evidence is that on 16.05.2012, at about 11-30 p.m., he heard hue

and cry, He came out of home. He saw the family members of the

accused involving in an altercation among themselves. As they were

uttering slang words, he asked them to stop altercation, but in turn,

the accused’s father-in-law and brother-in-law rebuked him. At that

time, Nayan was near him. As he was badly rebuked, he rushed

towards them to assault. However, the accused asked them not to

speak bad of him, who is a neighbour. At that time, the wife of the

accused was inside her home. The accused’s wife thought that

he(P.W.-1) assaulted the accused’s father-in-law and the reupon,

when the accused’s wife rushed towards him (P.W.-1) to assault,

Nayan resisted. They rebuked Nayan too. He pacified them and sent

them back. Thereafter, when he and Nayan were returning home,

the accused hurled a piece of brick which hit on the head of Nayan

causing injury. Immediately, Nayan was shifted to the hospital, but

the doctor declared him dead. At the time of occurrence, Nayan was

a tenant under him. He filed the F.I.R., Ext.-1 at the police station.

Police seized M. Ext.-1, the piece of brick by Ext.-3, the seizure

memo. Police prepared the inquest report, Ext.-4, on the body of the

deceased Nayan. The quarrel broke out all of a sudden. There was

no earlier enmity between the accused and Nayan. In cross-

examination, he has, interalia, deposed that after the occurrence,

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Nayan was proceeding ahead of him and the campus lights were on.

The accused assaulted Nayan from behind. Receiving injury, Nayan

fell down and he tried to save him. He denied the defence

suggestion that he did not see who assaulted Nayan. When Nayan

just entered the front of gate, his wife raised hue and cry uttering

‘assaulted ! assaulted !’, whereupon when he turned head, he saw

the accused hurling a brick. He and his wife did not state this fact

before the police, as the police did not ask them in detail. He denied

the defence suggestion that M. Ext.-1, the brick was not used to

assault Nayan.

14. P.W.-2 Smti Anita Das is the wife of P.W.-1. According to her, the occurrence took place, on 16.05.2012 at about

11.30 p.m. In the relevant night the wife of Nayan was not at home.

Hearing hue and cry outside, her husband (P.W.-1) called Nayan,

but he had already gone out of home. Her husband went out of

home. After sometime, the intensity of hue and cry gradually got

reduced. Her husband and Nayan were returning. However, when

altercation restarted with Nayan, Nayan uttered one bad word about

the accused’s wife. Then she went to the road to call her husband

(P.W.-1). When Nayan uttered bad word, the accused came with a

piece of brick. The accused hurled a piece of brick at Nayan, when

he just reached the gate of their house. The brick hit on the head of

Nayan causing injury and he succumbed to injury at the hospital.

Police seized the said piece of brick. In cross-examination, she has,

interalia, stated that Nayan sustained injury on the forehead just

above the eyes. She raised alarm asking the accused not to assault

Nayan, who was ahead of her. Earlier hue and cry was the regular

phenomenon at the accused’s house, which caused nuisance to

them.

15. P.W.-3 Smti Rinkumoni Das is the wife of the deceased Nayan Das. Her evidence is that on the day of

occurrence, she was away at her mother’s house at Bahari. She

came to know about the occurrence, on the following day, morning,

from her uncle. Her father-in-law Shri Mahendra Das came. The

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dead body of her husband was brought to the village. She saw injury

on the body of her deceased husband. She came to know from the

landlord (P.W.-1) that on the night of occurrence, the accused, in the

midst of quarrel, hit her husband with a brick and sustaining injury,

he died.

16. P.W.-4 Shri Tapan Das is the elder brother of the deceased Nayan Das. According to him, at the time of the

occurrence, he was away at Beltola. Learning from somebody else

that Nayan was removed to Medical, he went there and found him

dead. He saw injury on the head of Nayan. Pranab Das told him that

in the midst of a quarrel with the accused, the accused assaulted

him with a brick.

17. P.W.-5 Shri Bhajendra Hazarika is the father-in-law of the deceased. He has deposed that the occurrence took place

on 12.02.2012 at Chandan Choudhury path, near the house of the

complainant (P.W.-1). The complainant met him at his place of

posting at Bhangagarh and reported that the accused assaulted

Nayan with a brick and he died at the spot. He rushed to the hospital

and found Nayan dead. He has seen injury on forehead and on the

body too. Police prepared an inquest report, Ext.-4, on the body of

the deceased, in his presence. The deceased has left behind his

wife and a minor child, aged about 3(three) years. He put his

signature Ext.-4(2) at the Medical College Hospital.

18. P.W.-6 Dr. Richa Pandey is the Assistant Professor in the Department of Forensic Medicine, Gauhati Medical College and Hospital, Guwahati. Her evidence is that she

performed the postmortem examination on the body of the deceased

Nayan Das, on 17.05.2012, on police requisition in connection with

Basistha P.S. Case No. 324/2012 u/s 302 of I.P.C and found as

follows:-

(I) INJURIES:-

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(1) Laceration of size 4cm X 0.5 cm X muscle deep

present horizontally over the right eyebrow lateral

aspect, margins irregular and confused.

(2) Multiple abrasions 0.2 X 0.2 cm size to 0.5 X 0.1 cm

present on the right upper chest wall above the nipple

and below the clavicle.

(3) Curved abrasion of size 0.5 cm X 0.3 cm present with

curvature downward 9.5 cm above nipple and 9 cm

from midline towards the right, red in colour.

(4) Curved abrasion of size 0.5 cm X 0.3 cm present on

the right, 9 cm below shoulder tip and 4 cm lateral to

injury (3) red in colour,

(5) Abrasion 1 in X 0.3 cm present on the left shoulder 16

cm above nipple and 11 cm from midline, red in colour.

(6) Abrasion present on the back of left elbow 5 cm X 5

cm in size red in colour.

(7) Abrasion of size 3 cm X 2 cm present on the dorsal

aspect of left wrist, red in colour.

(8) Abrasion of size 3 cm X 2 cm present on the lateral

aspect of right arm 17 cm above elbow 2 number.

(9) Abrasion of size 1 cm X 1 cm present on back of right

elbow red in colour.

(10) Contusion of size 2 cm X 1 cm present in the left

thenar eminence.

In the opinion of the doctor, the death was due to coma

as a result of head injuries sustained. All the injuries described were

ante-mortem caused by blunt force impact.

Time since death- 6 hours to 18 hours (approx)

Injuries on the head is sufficient to cause death in the

ordinary course of nature. The head injury described above can be

caused by the weapon, Material Ext.-1.

Ext.-5 is my report, 5(1) is my signature and 5(2) is the

signature of Dr. R. Chaliha, I know his signature. Along with the

dead body, I received certain documents such as Inquest report,

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Ext.-4, Command Certificate, Examination.-6, Forwarding Letter,

Ext.-7 and Deadbody Challan, Ext.-8. Ext.-4(3), (4(4), 6(1), 7(1) and

8(1) are my signatures respectively.

19. P.W.-7 Shri Amulya Kumar Das is a neighbour. His

evidence is that the occurrence took place on 16.05.2012, at about

11.30 p.m. At that time, hearing ‘hulla’ near the house of Shri

Pranab Das (P.W.-1), he came out. While coming out, he noticed

that the people gathered in front of the house of Pranab Das (P.W.-

1). He went to the spot and saw the injured with bleeding injuries on

his head. He came to know from the people gathered at that place

that the accused inflicted injury by means of a brick. Injured was

shifted to the hospital. Later on, he came to know that the victim

succumbed to his injuries. There was a gate in front of the house of

Pranab Das (P.W.-1).

20. P.W.-8 S.I. Ratneswar Barman is the I.O. in the case. His evidence is that on 17.05.2012, the informant Pranab Das

(P.W.-1) appeared at Basistha P.S. and reported about the

occurrence, which was entered in Basistha P.S. General Diary vide

Entry No. 688, dated 17.05.2012 at 2 a.m. The officer In-charge of

Basistha P.S., Inspector Banamali Handique informed him over

wireless about the incident and directed him to proceed to the place

of occurrence for investigation. He visited the place of occurrence

and drew up a sketch thereof. He has recognized Ext.-9, the

photocopy of the sketch map of the place of occurrence (proved in

original). Then the I.O. recorded the statements of the witnesses

and searched for the accused Saru Chandradeep @ Bhagat, but he

could not be located. In the meantime, the informant Pranab Das

reported him that the injured Nayan Das expired at the G.M.C.H.,

Guwahati. He seized the piece of brick, used by the accused as

weapon which was found lying at the place of occurrence. He has

recognized Ext.-3, the seizure memo and M.Ext.-1, the seized brick.

Meanwhile, the informant filed the F.I.R., Ext.-1, which was

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endorsed by the Officer In-charge to him for investigation. He has

recognized Ext.-2, the printed form of the aforesaid F.I.R. Thereafter,

he held inquest on the body of the deceased, in presence of

witnesses, at the G.M.C.H. He has recognized Ext.-4, the inquest

report. Then he sent the dead body to the Forensic Science

Department (FSD) by a dead body Challan, Ext.-8, with the

forwarding letter, Ext.-7 and the Command Certificate, Ext.-6.

Thereafter, he arrested the accused at Lalmati area. On completion

of investigation, he submitted the charge-sheet, Ext.-10, against the

accused u/s 302 of I.P.C.

21. In cross-examination, he has, interalia, stated that he

has not seen the original G.D.E. No. 688, dated 17.05.2012 and that

it is not mentioned in the F.I.R. that Nayan Das was assaulted by

one brick. He has not noted that seized piece of brick which was

allegedly used by the accused contained blood stain. He denied the

defence suggestion that the seized brick was not seized from the

place of occurrence. He did not send the seized brick to the F.S.L.

for serological test. The place of occurrence is shown in Mark ‘A’ in

the sketch map, Ext.-9 and the house of Mahadev Bhagat is shown

in Ext.-9(B). He has seen the injury just above the eye. P.W.-1

Pranab Das did not state before him that he saw the accused hurling

a piece of brick on the deceased. P.W.-2 Anita Das did not state

before him that the accused caused hurt by a piece of brick on the

deceased.

(G) ANALYSIS OF EVIDENCE:

POINT NO.1 (i)

WHETHER CULPABLE HOMICIDE?

[CULPABLE HOMICIDE]

22. In the instant case, there is no dispute from the

defence side that Nayan Das met with a homicidal death. On the

other hand, it is the consistent case of the prosecution that the

cause of death of Nayan was due to sustaining of head injuries.

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P.W.-8 S.I. Ratneswar Barman, the I.O., who prepared the inquest

report, u/s 174 of Cr.P.C., vide Ext.-4, recorded multiple injuries in

the areas, above right eye, right elbow joint, right side of chest and

some reddish signs on the dead body of the deceased. According to

P.W.-6, Dr. Richa Pandey, the Assistant Professor in the department

of Forensic Medicine, G.M.C.H., who conducted the post-mortem

examination on the body of the deceased, on 17.05.2012, vide Ext.-

5, the post-mortem report, had found multiple injuries and gave the

opinion that the cause of death of Nayan Das was due to coma as a

result of ante-mortem head injuries, caused by blunt force impact of

weapon like M. Ext.-1, the seized brick. From the evidence of P.W.-1

Shri Pranab Das, P.W.-2 Smti Anita Das, the eye witnesses

respectively, P.W.-3 Smti Rinkumoni Das, P.W.-4 Shri Tapan Das,

P.W.-5 Shri Bhajendra Hazarika and P.W.-7 Shri Amulya Kumar Das

have, as a whole, supported the observations of P.W.-8, the I.O.

recorded in the inquest report, Ext.-4 and the undisputed findings of

P.W.-6, the autopsy surgeon. Therefore, this court finds no difficulty

to hold that the cause of death of Nayan Das was certainly an act of

‘culpable homicide’ defined in Section 299 of I.P.C.

(ii) WHETHER MURDER:[NOT AMOUNTING TO MURDER]

(a) NATURE AND SITUS OF THE WOUNDS:[DIED DUE TO HEAD INJURIES]

23. Since the nature and situs of the wounds play an

important factor to determine the intention and knowledge of the

assailant, it would be apposite to look first at the medical findings.

It is well settled that the medical evidence being only

an evidence of opinion, it is advisory in nature and not decisive in a

case. In state of Haryana – VS- Ram Singh [(2002) 2 SCC 426], the Apex court held that the significance of the evidence of the

doctor lies vis-à-vis the injuries appearing on the body of the

deceased person and likely use of the weapon therefore and it

would then be the prosecutor’s duty and obligation to have the

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corroborative evidence available in the record from the other

prosecution witnesses.

24. P.W.-6 Dr. Richa Pandey, the autopsy surgeon, who

conducted the post-mortem examination, on the body of the

deceased Nayan Das found as many as 10(ten) ante-mortem

injuries, quoted above, and formed the opinion that the cause of

death was due to coma as a result of head injuries sustained and

further, that all the injuries were caused by blunt force impact vide

Ext.-5, the post-mortem report. According to the autopsy surgeon

(P.W.-6), the head injury described in her evidence may be caused

by the weapon like M.Ext.-1, the seized brick. The defence appears

to have not elicited any fact, in her (P.W.-6) cross-examination,

about possibility of a weapon other than a blunt weapon like M. Ext.-

1 or that the injuries sustained on the deceased’s head, that is, the

vital part of the body, were insignificant to cause of death of a

person, in the ordinary course of nature. From the cross-

examination of the autopsy surgeon (P.W.-6), it is noticed that the

defence has not disputed the findings on the ante-mortem injuries

and the external appearance on the dead body of Nayan Das,

during post-mortem examination.

25. Therefore, this court is of the view that no opinion other

than the opinion that can be held is that the deceased succumbed to

his injuries sustained on his head, that is, the vital part of the body,

caused by blunt weapon like M. Ext.-1, the seized brick.

(H) THE OCCURRENCE AND COMPLICITY OF ACCUSED:[A confused quarrel]26. It appears from the evidence of P.W.-8, S.I. Ratneswar

Barman, the I.O., that before receipt of the written F.I.R., dated

17.05.2012, vide Ext.-1, lodged by P.W.-1 Shri Pranab Das, he

(P.W.-1) appeared at Basistha P.S., on that day at 2 a.m. and

reported to the Officer In-charge, Inspector Banamali Handique

about the incident of assault that took place between the deceased

Nayan Das and the accused Shri Chandradeep Bhagat @ Saru at

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Chandan Choudhury Path, for which due to sustaining of injuries

Nayan was shifted to the hospital for treatment. According to P.W.-8,

the I.O., the aforesaid information was recorded in Basistha P.S.

G.D. Entry No. 688, dated 17.05.2012, at 2 a.m. and as directed by

the Officer In-charge, he (P.W.-8) launched investigation by

proceeding to the place of occurrence, which is shown in Ext.-9, the

sketch map. However, no certified copy of the aforesaid Basistha

P.S. G.D. Entry No. 688, dated 17.05.2012, at 2 a.m., which was the

earliest information was produced, and as such, the first information

report, in regard to the details of the alleged occurrence, has

remained not exhibited in the case, without advancing any

explanation. P.W.-1 Shri Pranab Das, in his evidence, has not stated

that he appeared at Basistha P.S. and reported about the

occurrence, before Ext.-1, the written F.I.R. was lodged. However, if

the version of P.W.-8, the I.O., is believed, the written F.I.R., Ext.-1,

which was lodged after death of Nayan Das, who was brought dead

to the G.M.C.H., and after progress of investigation at the place of

occurrence, conducted by P.W.-8, the I.O., aforementioned, it is hit

by section 162 of Cr.P.C. and can not be treated as the first

information report. Therefore, the possibility of embellishment of the

actual occurrence in the said Ext.-1, the written F.I.R. lodged after

progress of investigation can not also be ruled out beyond doubt.

(I) BACKDROP OF OCCURENCE:[Identity of accused not established beyond doubt]27. In Babul Roy –VS- State of Assam [ (2010) 2 GLR 1], the Hon'ble Gauhati High Court held that the burden of proving

the guilt of the accused is upon the prosecution and unless it

relieves itself of that burden, courts can not record a finding of the

guilt of the accused. It was further held that if two views are possible

on the evidence adduced in the case, one pointing to the guilt of the

accused and the other to his innocence, the view which is

favourable to the accused should be adopted. The Apex court in K. Prakashan –VS- P.K. Surendran [(2008) 1 SCC (Cri) 200] held

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that the burden of proof lying on the accused required to be

discharged by preponderance of probability, while that lying on the

prosecution to be discharged by proof, beyond reasonable doubt.

28. In the instant case, the entire prosecution case has

rested on the alleged direct evidence of P.W.-1 Shri Pranab Das and

his wife P.W.-2 Smti Anita Das, under whom the deceased Nayan

Das was a tenant, while the remaining witnesses namely, P.W.-3

Smti Rinkumoni Das (the wife of the deceased), P.W.-4 Shri Tapan

Das (the elder brother of the deceased), P.W.-5 Shri Bhajendra

Hazarika (the father-in-law of the deceased) and P.W.-7 Shri Amulya

Kumar Das (a neighbour) were the reported witnesses. According to

P.W.-1, Shri Pranab Das and P.W.-2 Smti Anita Das, on 16.05.2012,

at about 11.30 p.m., the occurrence took place in front of the gate of

their house, on road. The place of occurrence, as shown in ‘A’ of

Ext.-9, the sketch map, and the said place is located near the house

of one Shri Mahadev Bhagat (indicated in ‘B’), Shri Amulya Das

(P.W.-7, indicated in ‘D’), one Shri Ratul Dutta (indicated in ‘C’) and

one Shri Chandra Choudhury and further, the rented house of the

deceased Nayan Das was situated to the North of the said place of

occurrence. The evidence of P.W.s 1 and 2, aforementioned, reveal

that at the relevant time of the night, there broke out a hue and cry,

outside their house and thereupon, P.W.-1 called his tenant Nayan,

but getting no response, as he had already went out, he (P.W.-1)

stepped out of home alone. P.W.-1 has stated that having come out

of home, he noticed that in front of their gate, an incident of

altercation was going on among the family members of the accused,

uttering slang words, whereupon he (P.W.-1) asked them to stop

quarrelling, but the accused’s father-in-law and sister-in-law, in turn,

rebuked him. At that time, the deceased Nayan Das was near him.

As they rebuked him (P.W.-1), he (P.W.-1) rushed to them to

assault. The deceased Nayan Das asked them not to say in bad

terms to him (P.W.-1), who is a neighbour. It appears from his (P.W.-

1) evidence that till then the accused’s wife was inside their house.

P.W.-1 has further stated that accused’s wife thinking that he (P.W.-

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1) assaulted her father, rushed towards him to assault and at that

moment, the deceased Nayan resisted her. However, the accused’s

wife rebuked Nayan and after pacifying all of them and making them

return, while he (P.W.-1) and Nayan were returning from the spot, all

of a sudden, the accused hurled a piece of brick on Nayan, which hit

on his (Nayan) head causing injury. Nayan was immediately

removed to the hospital, but the doctor declared him dead.

According to P.W.-1, the quarrel took place all of a sudden and there

was no previous enmity between Nayan and the accused.

29. Turning to the cross-examination of P.W.-1 Shri

Pranab Das, it appears that when the initial occurrence was over, he

followed Nayan, who was ahead of him, for home and the accused

assaulted Nayan from behind and further, that at that time, the

campus lights were on. He wanted to save Nayan. His (P.W.-1)

evidence in cross-examination further reveals that when Nayan was

about to enter the gate, his wife (P.W.-2) raised alarm to the effect

‘assaulted ! assaulted !’, whereupon, turning his (P.W.-1) head saw

the accused hurling a piece of brick on Nayan, but admittedly he did

not state this material fact before the police, as the police did not ask

him about the occurrence in detail. The evidence of P.W.-2 Smti

Anita Das, the wife of P.W.-1, reveals that altercation between

Nayan and the accused took place, when Nayan uttered some bad

words about his wife and at that moment, when she (P.W.-2) went to

call her husband (P.W.-1), she saw Nayan reaching their gate and

the accused hurling a piece of brick, which hit on his head entailing

his death in the hospital. Though the exact unwarranted word

uttered by the deceased Nayan in regard to the accused’s wife has

not come on evidence of P.W.-2, her (P.W.-2) evidence indicates

that the deceased initiated resumption of quarrel with the accused

and the provocative uncertain word uttered by the deceased led to

sudden deprivation of the power of self control of the accused

entailing his alleged retaliation by physical assault by way of hurling

a piece of brick. P.W.-1 has clearly deposed, as stated earlier, the

incident occurred all of a sudden. From this point of view, the

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alleged act of the accused attracts the Exception 1 to Section 300 of I.P.C.

30. The cross-examination of P.W.-1 and P.W.-2,

however, give rise to a material contradiction in their evidence. P.W.-

1 has stated that when he and the deceased were returning, Nayan

was ahead of him (P.W.-1) and the accused assaulted him from

behind, when he was about to enter the gate and as a result, he fell

down. At that time, the campus lights were on. He (P.W.-1) has

further stated that when his wife (P.W.-2) raised alarm to the effect

‘assaulted ! assaulted !”, he turned his head and saw the accused

hurling a brick, but this fact was omitted to be stated before the

police. If this piece of evidence of P.W.-1 is believed, at the relevant

time, the deceased was certainly behind him(P.W.-1) and there was

no possibility to see the accused striking at Nayan, who was behind

him. P.W.-2 has clearly stated that Nayan was before her and when

the accused attempted to strike at Nayan by hurling a brick, she

raised alarm asking him not to strike, but the accused stroke at him

causing injury just above his eyes. The aforesaid contradiction has

given rise to a confusion as to whom to be believed to have actually

seen the occurrence.

31. Apart from the above evidence of P.Ws 1 and 2, the

husband and wife respectively, it is noticed that P.W.-7 Shri Amulya

Kumar Das, who is a neighbour of them, did not witness the

occurrence and when hearing hue and cry went to the place of

occurrence at about 11.30 p.m., found the people gathered at the

place and saw the injured (without mentioning his name) with

bleeding injuries on his head. P.W.-7 came to know from those

gathered people that the accused inflicted the injuries on the person

of the injured by means of a brick, and later on came to know that he

succumbed to his injuries. He has clarified that he did not see any

brick, obviously referring to the fact of not seeing any brick at the

place of occurrence. Therefore, the evidence of P.W.-7 shows to be

hearsay so far it relates to the circumstances in which the deceased

sustained fatal head injuries. From the evidence of P.W.-3 Smti

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Rinkumoni Das (the wife of the deceased), P.W.-4 Shri Tapan Das

(the elder brother of the deceased) and P.W.-5 Shri Brajendra

Hazarika (the father in-law of the deceased), it transpires that they

heard about the occurrence and they only saw injuries on the dead

body of Nayan Das. P.W.-5, aforementioned, stood witness to the

preparation of the inquest report, Ext.-4, at the G.M.C.H., by P.W.-8

S.I. Ratneswar Barman, the I.O. The prosecution has not examined

Shri Mahendra Das, the father of the deceased, from whom P.W.-3

came to know about the incident and P.W.-4 could not say from

whom he learnt about the occurrence and further, P.W.-7 has not

mentioned the name of any person from whom he learnt that the

accused was responsible for the injuries sustained by the deceased.

The defence appears to have not disputed the injuries sustained by

the deceased. However, so far the cause of injuries sustained by the

deceased is concerned, the evidence of P.Ws 3, 4 and 5 apparently

appear to be hearsay, being based on information given by

someone else. It is pertinent to be mentioned that conjecture and

speculation have no place in legal evidence and as such, in view of

the contradiction between the evidence of P.Ws 1 and 2 on the

crucial aspect pertaining to the direct complicity of the accused to

the crime coupled with absence of any other credible evidence

confirming the circumstances, in which the deceased sustained

injuries, this court finds it extremely difficult to rely on the evidence of

P.W.s. 1 and 2, aforementioned, to hold the accused responsible for

the fatal injuries sustained by the deceased, at the relevant time of

the occurrence. This presumption is further reinforced by the

prosecution’s omission to explain as to how the injured turned

deceased Nayan Das sustained other as many as 10(ten) injuries,

which were ante-mortem in nature, found by P.W.-6, the autopsy

surgeon , on his person, during post-mortem examination.

Therefore, the case of Nayan was not a single injury case, caused

by only M. Ext.-1, the seized brick. The evidence of P.Ws

abundantly show that hue and cry broke out on public road near

houses of P.Ws 1 and 2, the deceased and the accused’s family,

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where the incident of quarrel was the usual phenomenon causing

nuisance to the neighbours. There is no answer on evidence as to

how the domestic intolerance moved to the public road in the night

hours and drawing move of Nayan to the public place before arrival

of his landlord (P.W.-1) and sustained multiple injuries at the place.

The accused in his statement u/s 313 Cr.P.C. stated that the

deceased was an alcohol addict and he often created nuisance in

the locality, in inebriated condition and P.W.-2, the wife of P.W.-1,

has stated that Nayan uttered some unwarranted provoking word

towards the accused’s wife. Though the accused has not proved his

plea of alibi in the relevant night, the evidence clearly show

involvement of many persons in the occurrence, that took place

during night hours, on public road and it has become very difficult for

this court to hold the accused solely responsible for the ante-mortem

multiple injuries sustained by the deceased beyond reasonable

doubt. Hence, the benefit of these aspects, on evidence on record,

shall certainly go to the accused.

32. Situated thus, this court is of the considered opinion

that the alleged occurrence of confused quarrel had taken place

between the accused’s family members and the deceased Nayan

and in the heat of passion, he was assaulted causing multiple

injuries entailing his death. Therefore, in view of the facts and

circumstances of this case, the offence undoubtedly attracts Part II

of Section 304 of I.P.C., but the accused can not be held guilty of

the offence beyond reasonable doubt.

CONCLUSION:33. For the reasons, set forth above, this court is of the

opinion that the prosecution has failed to prove the above charge

leveled against the accused beyond all reasonable doubt.

34. Therefore, the accused Shri Chandradeep Bhagat @

Saru is acquitted of the charge u/s 302 of I.P.C. and set at liberty

forthwith giving the benefit of doubt.

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35. The seized M. Ext.-1, the brick, may be destroyed in

due course of law.

36. The judgment and order, as above, delivered in the

open court, in presence of both the sides, on this the 23rd day of

April, 2015, under the hand and seal of this court.

( A. BORTHAKUR )SESSIONS JUDGE,

KAMRUP(M), GUWAHATI

Dictated and corrected by me:

(A. BORTHAKUR) SESSIONS JUDGE, KAMRUP(M), GUWAHATI

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SESSIONS CASE NO. 74 of 2014

A P P E N D I X

LIST OF PROSECUTION WITNESSES

PW–1 : Shri Pranab Das is the landlord of the deceased’s

rented house.

PW–2 : Smti Anita Das is the wife of Shri Pranab Das

(P.W.-1).

PW–3 : Smti Rinkumoni Das is the wife of the deceased

Nayan DasPW–4 : Shri Tapan Das is the elder brother of the

deceased Nayan Das.

PW–5 : Shri Bhajendra Hazarika is the father-in-law

of the deceased.

PW–6 : Dr. Richa Pandy is the autopsy

surgeon. PW-7 : Shri Amulya Kumar

Das is a neighbour PW-8 : S.I.

Ratneswar Barman is the I.O.

LIST OF DEFENCE WITNESSES

N I L

LIST OF DOCUMENTS EXHIBITED BY PROSECUTIONExhibit –1 : The F.I.R. Exhibit –2 : The printed form of F.I.R.Exhibit –3 : The Seizure list.Exhibit –4 : Inquest Report.Exhibit - 5 : The post-mortem report.Exhibit - 6 : Command Certificate

Exhibit-7 : Post-mortem examination prayer.

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Exhibit-8 : ChallanExhibit-9 : Sketch of the place of occurrence.Exhibit-10 : The Charge-Sheet.

MATERIAL EXHIBITN I L

DEFENCE EXHIBITN I L

( A. BORTHAKUR )SESSIONS JUDGE,

KAMRUP(M), GUWAHATI

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