GANESH BORA Vs. STATE OF ASSAM

JUDGEMENT

(1.) By the judgment and order dated 5.6.95, passed by the learned Sessions Judge, Nagaon, the accused-appellant, Ganesh Bora, stands convicted under Section 304 (Part-I) and 326 of the Indian Penal Code and sentenced, for his conviction under Section 304 (Part-I) IPC, to suffer, rigorous imprisonment for six years and to pay a fine of Rs. 1000/- and, in default of payment of fine, rigorous imprisonment for a further period of one year and also to suffer, for bis conviction under Section 326 IPC, rigorous imprisonment for a period of one year and to pay a fine of Rs.500/- and, in default of payment of fine, suffer imprisonment for a further period of 15 (fifteen) days, both the sentences running concurrently.

(2.) The case of the prosecution, as unfolded at the trial, may in brief, be stated as follows :- Iftikar Ahmed (PW-4), Bipin Bora and Narayan Kundu were friends, they all being petty shopkeepers, having their shops at Nehrubali, Nagaon Bipul Bora, brother of Bipin Bora (PW-5), an employee of the Assam State Electricity Board, was a visitor to the said shops. On the day of the occurrence, i.e. on 24 12.87, after closing their shops, Narayan Kundu (since deceased) and Iftikar Ahmed (PW-4) went alongwith Bipul Bora (PW-5) to Bipul Bora's house and after having tea there, when Iftikar and Narayan started coming back, at about 8.30 p.m., they were accompanied by Bipul Bora. When these three persons reached near the shop of the accused-appellant, Ganesh Bora, situated at Telia Borjoha, Narayan Kundu went inside the shop of Ganesh Bora, but PW-4 and PW-5 remained waiting outside the shop. After some time, PW-4 and PW-5 saw accused Ganesh Bora assaulting Narayan Kundu with a dagger and jathi (i.e. javelin). Narayan Kundu came out of the shop and fled away. The accused-appellant, Ganesh Bora, then, assaulted Bipul Bora with thejathi. In the meanwhile, Iftikar intervened and he too was assaulted by the accused-appellant. Thereafter, the accused-appellant tied Iftikar and Bipul with rope. After so tying up by rope Bipul and Iftikar, the accused-appellant went to the house of his uncle and aunt and came from there to the Nagaon police station and lodged there an information, based on which GD Entry No. 1003, dated 25.12.87, was made and S.I. Sardar Rajendra Singh (PW-8), acting upon the information so received, came to the place of occurrence and found both Iftikar as well as Bipul tied with rope and kept confined under a shed in front of the house of the accused-appellant. Both Iftikar and Bipul were untied and taken to the Police Station. The rope and the hurricane lamp, which was kept lit there, were seized. The dead body of Narayan Kundu was found lying nearby. After holding inquest over the said dead body, the same was sent for postmortem examination, which revealed penetrating and incised wounds having been caused, amongst others, at the abdominal region of the said deceased, the cause of death being, according to the doctor, shock and haemorrhage resulting from the injuries sustained. Bipul Bora and Iftikar were also medically examined. Ganesh Chandra Kundu, brother of deceased Narayan Kundu, also lodged an Ejahar, in writing, before the police on 25.12.87 and, based on this Ejahar and treating the same as FIR, Nagaon Police Station Case No. 809/87 was registered. Another Ejahar, in writing, was lodged by Akanman Bora, brother of Bipul Bora (PW-5), at Nagaon Police Station and treating the same too as FIR, Nagaon Police Station case No. 811/87 was registered. On completion of the investigation, police submitted chargesheet against the accused-appellant under Section 302/326 IPC in connection with Nagaon Police Station Case No. 809/87. Another charge sheet under Sections 342/326/323 IPC was also laid against the accused-appellant in connection with Nagaon Police Station Case No. 811/87 aforementioned. As both the cases, namely, Sessions Case No. 46(N) 91 and 50(N) 87 arose out of the same occurrence, both the cases were tried by the learned Sessions Judge, Nagaon.

(3.) During trial, in Sessions Case No. 46(N) 91, the accused-appellant pleaded not guilty to the charge framed against him under Sections 302 and 326 IPC. In support of their case, prosecution examined altogether 11 witnesses. The accused-appellant was, then, examined under Section 313 Cr.P. C. and in his examination aforementioned, the accused-appellant denied that he had committed the offences alleged to have been committed by him, the case of the defence being, in brief, thus: on the night of occurrence, while he was sleeping inside the shop at about 2 a.m., two persons entered into his house by breaking open the shop door, he raised alarm and the two persons fled away, the neighbours arrived, they caught hold of both the persons and he was sent to the police station, he came to the police station and reported the matter there. The accused, however, could not say as to how the victims aforementioned had sustained injuries.