Lahiri, J. - (1.)It is an absorbing age. Even the students cannot concentrate reading unless a transistor is put on a high volume. We hear about transistor-bombs also. The case in hand is the commission of murder by the accused holding a transistor in one hand and a dao in the other. Perhaps, to inspite him, he needed music. The accused was a young person, living in rural area, but the fact of carrying a musical instrument just before taking the life of another sounds queer. But, there is no doubt that he dealt a blow and a life has been lost, life of his own brother. We smell that something happened somewhere and the entire story is not before us. There must have been some cause for the brother to take away the life of his brother. Perhaps, we are not getting the full story of the incident. The parties were not in very good terms is a factor which may be a reason for non-disclosure of relevant evidence and withholding the reason why the accused killed his brother. The motive alleged is too trifle and, ordinarily a brother does not take the life of his brother on such a thin ground. Never perhaps an agitated person carries a transistor, before committing a murder, openly and in presence of others.
(2.)The prosecution story is that on 23/6/79 at about 7 p.m. the accused entered the house of P.W. 1 Madan Saikia questioning the deceased, his brother, why he had cut the fence, dealt a dao blow and went away. He did openly in presence of P.W. 1 to 4. DaoT may be considered as a weapon of assault in other party of the country, but in Assam, particularly in rural Assam, dao is a household instrument and a means of livelihood. Every villager carries a dao, unless he is a highly sophisticated. It is a general custom or practice to carry dao at night.
(3.)We have, however, reason to believe that something did happen in the house of P W. 1 Madan, some altercation, which provoked the brother to take the life of his brother. The accused came all the way hearing music. Naturally, he was not a nursing any serious grievance. He was in a happy mood. Why and who snapped the mood? It is difficult to believe the prosecution evidence that on questioning the deceased why he had damaged his fencing, a trifle matter, the accused could take the fatal action of killing his own brother. Let us see whether the hunch has any supporting material. Is it that the young person was provoked or he dealt the blow on provocation? Let us therefore, turn to the evidence of the eye witnesses. There were positive suggestion to all of them that the accused was abused and assaulted by the deceased, the accused sustained injuries and thereafter dealt the blow. The witnesses denied the facts and instead of giving any explanation, the witnesses for reasons best known to them, denied the fact that the accused received any injury. Situated thus, the accused had to examine the doctor to prove the injuries sustained by him. P.W. 7 S.I. R.K. Gogoi proved that the eye witnesses suppressed the fact that the accused sustained injuries. He affirmed that before the prosecution side lodged ejahar, the accused had gone to the Police Station and alleged that he bad been assaulted by the deceased sustained injuries including an injury on his bead, whereupon the Police made a G.D. Entry and sent the injured for medical treatment. However, the witnesses claimed that he did not receive the injury report. The testimony of the witnesses shows that immediately after the occurrence the accused went to the Police Station complaining that he had been assaulted by the deceased and that he sustained injuries on his person. This is the case put forwarded by the witness (P. W. 7). The evidence of P.W. 7 proves that the eye witnesses suppressed a material fact obviously to establish that without any provocation the accused killed his brother. As such, we find that the story of provocation was a consistent story of the accused.
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