Decided on May 31,1994

Prabin Bora Appellant
STATE OF ASSAM Respondents


J. Sangma, J. - (1.)THE learned Sessions Judge (H.M. Barkakati) of Dhemaji by his judgment dated 7.7.92 in Sessions Case No. 74 (DH)/90 convicted and sentenced the Appellant (Prabin Bora) Under Section 302 IPC to RI for life and fine of Rs. 5000/ -, in default, RI for one year. He is now serving the sentence in jail.
(2.)THE case for the prosecution was this. At 6 p.m. on 2.11.88 one Dumai Bora of village Dapathar Majgaon gave FIR at Silapathar PS stating that at 3 p.m. his sons Dilip Bora and Prabin Bora quarrelled and Dilip Bora died in the hand of Prabin Bora, On this FIR, Silapathar PS registered case against Prabin Bora as accused. S.I. AGM Jahangir investigated the case. As the Appellant also surrendered at the PS, the I/O arrested him at the PS. He then went to the place of occurrence and prepared inquest report and sent the dead body to doctor for post mortem. He made seizures of articles and examined witnesses. During investigation a magistrate recorded confessional statement of the accused on 4.11.88. On completing investigation the I/O submitted charge sheet Under Section 302 IPC against the Appellant. The Judicial Magistrate, Dhemaji, then committed the case (GR Case No. 724/88) to the Sessions Court for trial. On 25.10.80 the learned Sessions Judge framed charge Under Section 302 IPC, As the Appellant pleaded not guilty, the prosecution examined 6 PWs but not the informant (Dumai Bora) who was father of the deceased and the Appellant. The prosecution did not also examine the magistrate who recorded the confession and did not exhibit the confessional statement. PWs, 1 and 2 were declared hostile and cross examined by prosecution and the defence. The appellant -was then examined Under Section 313 Code of Criminal procedure. He denied the question put by the trial court and said mat he lived with his father and the deceased lived separately from them. He did not examine witness for defence.
In his finding the learned Sessions Judge recorded this:

The deceased quarrelled with his father and assaulted him. Accused, who saw the assault on, his own father, tried to pacify the deceased but could not. Then he took the axe lying near the courtyard and dealt a blow on his abdomen. Deceased fell down and accused dealt more blows on the deceased out of anger. As a result the deceased lost his life. Both father and son (accused) rushed to the PS. Accused surrendered and father lodged FIR. So, the I/O arrested him at the PS even before investigation.

(3.)THOUGH the prosecution did not exhibit the confessional statement of the Appellant, learned Sessions Judge made use of it in aid of the prosecution and found that the confession was voluntary and it was corroborated by FIR (Ext, 6) and other circumstantial evidence including that of the doctor of post mortem who gave the opinion that death was (sic) to the injury sustained. Thus he held that the Appellant was guilty of the murder and accordingly convicted and sentenced him Under Section 302 IPC as aforesaid.
The unexhibited confessional statement is this.

Last Wednesday afternoon while I was attending a nature's call in the backside of our house I heard a commotion in the front side and I came there. There I saw that my elder brother Dilip Bora was holding the neck of my father and steering him. I tried to separate my brother when he dealt a blow on my hand. Then I picked up an axe that was lying nearby and hit him with the blunt end of the axe. Then I hacked him in the waist with the axe. My brother fell flat when, out of rage, I dealt another blow in his chest, Immediately, thereafter I preserted myself in the Silapathar police station with the axe in hand.

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