KHAGEN CHANDRA BORAH Vs. STATE OF ASSAM

JUDGEMENT

(1.) This appeal is directed against the judgment dated 30.4.1997 passed by the Sessions Judge, Tinsukia in Sessions Case No. 60(T) of 1993 convicting the accused appellant Khagen Chandra Borah under Section 302, IPC and sentencing him to suffer rigorous imprisonment for life and to pay a fine of Rs. 5000/- in default to undergo further rigorous imprisonment for two years.

(2.) The accused appellant Khagen Borah was charged for committing murder of his wife Jyoti Bora by administering poison. The prosecution allegation is that on the morning of 163.91, the accused left for Sibsagar at about 5 AM. The deceased Jyoti Bora, wife of the accused stayed in the house of one Bogi (PW 9), took her breakfast alongwith other family members and thereafter she also took medicine, and the deceased then started vomiting and felt uneasy. She was removed to hospital but on the way, she breathed her last. Autospy over the dead body was held by the doctor who could not ascertain the cause of death. The Liver/Stomach contents and the part of the vomit were sent to the Forensic Science Laboratory who opined that the sample contained Oregano Chemico Pesticide which goes to show that the death was due to the consumption of above Pesticide. Further case of the prosecution is that the accused had brought medicine and he insisted upon taking of the said medicine by the deceased and accordingly the deceased took the said medicine and died. During the course of investigation two bottles of medicines were seized by the I/O on being produced by the mother of the deceased and these were also sent to the Forensic Science Laboratory. Assam, Guwahati. On analysis, it was found that one of the said bottles contained oregano chemico pesticide whereas the other bottle gave negative test of having any poison. Hence a logical inference can be drawn up this consumption of medicine in the battle which was marked as M-2 tone-numbered as Tox-57 (d) by the F.S.L. which contained organo chlorin pesticide which has led to the death of the deceased. The other bottle of the medicine was branded as Dexorange and marked as Tox-57(c) did not contain any poison.

(3.) In this case, admittedly, the accused appellant was absent when the medicine was taken by the deceased. There is also no evidence to show as to who had brought these medicines. The evidence on record shows that both the accused and the deceased had gone to consult the doctor for the ailment of the deceased and one Dr. Sarma gave the medicine. As stated above, there are two bottles of medicines out of which one contained poison and the other was normal medicine. Even if it is conceded that the accused had insisted on taking the medicine, can it be presumed that the accused had insisted upon taking the medicine from the wrong bottle and not from the normal battle. PW 9 further stated that even after the complaint by the wife that the medicine does not smell good, the accused presumably relied that the medicine may be taken by closing the nose. This happens in every day life; when children complained of bitter test of medicine, the elders ask them to take the same in arder to cure the ailment. This does not mean that the accused had any knowledge that the medicine contained pesticide. There is absolutely no evidence on record to show as to which bottle of medicine was brought by the accused and where from the bottle marked Tox-57(d) was brought or brought in by whom. However, PW 9 does not say that the accused had insisted upon taking the medicine from which particular bottle. The learned P.P. was fair enough to submit that the evidence on this point is not specific or categorical.