BIKASH BORA AND ORS. versus THE STATE OF ASSAM

Citation: [2019] 1 S.C.R. 1096 · Decided: 05-02-2019 · Supreme Court of India · Bench: A.M. KHANWILKAR · Disposal: Disposed off

Judgment (excerpt)

A
B
C
D
E
F
G
H
1096
SUPREME COURT REPORTS
[2019] 1 S.C.R.
BIKASH BORA AND ORS.
v.
THE STATE OF ASSAM
(Criminal Appeal No. 164 of 2011)
FEBRUARY 05, 2019
[A. M. KHANWILKAR AND K. M. JOSEPH, JJ.]
Penal Code, 1860 – s. 302 – Murder – Prosecution case that
appellants caused fatal injuries to victim to which he succumbed –
Conviction of the appellants u/ss. 302/34, and sentenced
accordingly, on the basis of the circumstantial evidence and the
evidence of an eye witness – High Court upheld the order of
conviction and sentence, however held that the prosecution witness
was not an eyewitness – On appeal, held: All the circumstances
taken together do not clinchingly establish the complicity of the
appellants-BB, AB and HR – Mere presence at the scene of crime,
cannot be the basis to record a finding of guilt against them by
applying s. 34 – However, circumstances noted by the courts below
establish the involvement of appellant-DB in causing death of
deceased, on account of recovery of the weapon from his house,
which was used to assault the deceased – Courts below right in
relying upon the evidence of the eye witness and the doctor –
Conclusion by the High Court that it was a case of causing murder
of the deceased, albeit by DB, an offence liable to be punished u/s.
302 simpliciter is upheld – It is not a case to convert the offence of
murder to one u/s. 304 (II) – Appellants-BB, AB and HR acquitted
of the offence u/ss. 302/34 by giving them benefit of doubt –
However, the conviction and sentence of DB u/s.302 upheld.
Disposing of the appeal, the Court
HELD: 1.1 There is no evidence regarding common
intention of the accused persons or prior meeting of their minds
to kill the deceased. The evidence of PW-5, mentions about the
mere presence of all the appellants at the spot where deceased
was seen lying on the ground. He does not state that all the
appellants were wielding lathis at the relevant time. Nor has he
spoken about any disclosure made by the appellants regarding
the sequence of events resulted in causing fatal injuries to the
[2019] 1 S.C.R. 1096
1096
A
B
C
D
E
F
G
H
1097
deceased. Thus, there is no evidence to indicate as to how
appellants-BB, AB and HR could be made accountable for the
fatal injuries caused to the deceased to which he eventually
succumbed. Even if all the nine circumstances are taken as it is,
the same do not clinchingly establish the complicity of appellants
BB, AB and HR. There is no tittle of evidence to show that they
were wielding lathis or had assaulted the deceased by lathi so as
to hold them responsible by applying Section 34 IPC. At best,
the chain of proved circumstances would point finger only towards
appellant DB, from whose house lathi used to assault the
deceased, was recovered. Further, the two fatal injuries, in the
opinion of the doctor PW-8, could be caused by a blunt weapon
like lathi. Accordingly, for want of clinching evidence to indicate
the complicity of three appellants, namely, BB, AB and HR, it
would be difficult to sustain their conviction by applying Section
34 IPC, which was the charge framed against them. [Para 4][1101-
E-F]
1.2 As regards, appellant DB, the nine circumstances noted
by the trial court and affirmed by the High Court would certainly
establish his involvement in the commission of crime, and in
particular, on account of recovery of the weapon from his house,
which was used to assault JK. He has not offered any explanation
except claiming to be innocent. The medical evidence does
indicate that the two injuries were fatal and each of them was
sufficient to cause death in ordinary course of nature. PW-8 has
deposed that a patient with such injuries can survive up to one
hour and beyond that possibility of survival is minimal. The trial
court as well as the High Court were right in relying upon the
evidence of PW-5 and PW-8 to hold that the nine circumstances
were duly established. That being a possible view, the same is
upheld. The proved circumstances clinchingly point towards the
involvement of appellant DB in the commission of the stated
offence of murder. Thus, the concurrent conclusion reached by
the two courts about the finding of guilt against the appellant DB
for causing the death of JK is upheld. [Para 5][1101-G-H; 1102-
A-C]
1.3 The fact that only two fatal injuries have been noticed
during the postmortem of the dead body of deceased would not
bring the case within any exception to hold that it was a case of
BIKASH BORA v. THE STATE OF ASSAM
A
B
C
D

Excerpt shown. Read the full judgment & AI analysis in Lexace.