IN THE COURT OF THE ADDL. SESSIONS JUDGE AT DIBRUGARH.

Present : Sri A.B. Siddique, AJS Addl. Sessions Judge, Dibrugarh.

Sessions Case No. 132/2009.State of Assam

Vs. (1) Sri Dibya Hash Goswami.(2) Sri Kusheswar Saikia. (3) Sri Mridul Dutta ……………Accused

Appearance : Sri S.D Purakastha Special PP,CBI. ACB

Sri B. Baruah, Sr. Advocate, Mr. A Dutta, Sr Advocate

Sri A. Baruah, Advocate, ------for the accused persons.

Charge U/ss.120(B)/302/506 IPC.

Date of Evidence on : 19.10.2012, 22.11.12, 14.12.2012, 22,2,2013, 26.4.2013, 26.9.2013,29.10.2013, 21.11.2013, 7.01.2014, 6.2.2014 22.4.2014, 27.6.2014 & 1.8.2014.

Date of Argument on : 13.11.2014, 18.11.2014, 25.11.2014

Date of Judgment on : 21.04.2015

Judgement delivered on : 22.04.2015

J U D G M E N T

(1) Prosecution case in a nutshell is that on 27.5.1986, one Sri

Prakash Dutta, a student of Dibrugarh University came to Rajabheta

Petrol Post and verbally informed that Sourav Bora a student of

Sociology Department, Final year, resident of New Boys' Hostel, was

fired upon by some unknown assailants near the hostel and that Sourav

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Bora was lying in unconscious state. The ASI of Police of Rajabheta Petrol

Post informed the matter to Dibrugarh P.S. Accordingly on receipt of the

information, the then O/C, Dibrugarh P.S. entrusted Sub-Inspector, Sri

Padmeswar Konwar and instructed him to visit the Place of Occurrence.

Accordingly, he visited the place of occurrence along with police party.

By the time, the victim was shifted to AMCH. Thereafter, he rushed to

AMCH and on enquiry learnt that Sourabh Bora is already dead. Then he

lodged a written complaint to O/C, Dibrugarh P.S. On receipt of the said

ejahar O/C , Dibrugarh P.S. registered a case being Dibrugarh P.S. Case

No. 398/86 U/ss 302 IPC and started investigation. Orinigal copy of the

ejahar of Dibrugarh PS Case No.398/86 is not available in the rrecord.

INVESTIGATION, CHARGE AND TRIAL

(2) Intially I/O of Dubrugarh Police station started Investigation.

During investigation Govt. of Assam directed that the case be

investigated by Assam Police CID. Therefore, CID handed orver the case

to CBI as per notification. CBI took for investigation 21.03.1988. Ext.-

12 is the notice . Accordingly, CBI registered a case as FIR R/C (S)

SIU(III) SIC, New Delhi. FIR is exhibited as Ext-11. CBI on conclusion of

investigation filed Closure Report Vide Ext. 14 on 26.6.1990.

From the period from 1990 to 2006 case was in dormant stage. Special

Judicial Magistrate in short (SJM), Kamrup, Guwahat did not accept the

Closure Report and registered a case being 9426C/06 on 28.11.2006

learned S J M took cognizance against Mridul Dutta, Ramesh Dutta, DH

Goswami, Kosheswar Saikia, Sarbananda Sonowal, Biren Dutta and S.K.

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Dutta. S.K. Dutta expired before committal of the case. The accused

persons appeared before the lower court and after furnishing them the

necessary copies etc. the case was committed to the Court of Sessions

being the offence triable exclusively by the Sessions Court which was

Registered as 132/09 and again transferred to the Court learned Addl.

Sessions Jude.

(3) On appearance of the accused persons before the Court and

after hearing the learned counsel for both sides on the point of charge

and considering the case record and the statements of the witnesses and

the documents referred U/s 173 of Cr.P.C. on 21.12.2009 the then

learned. Addl. Sessions Judge, Dibrugarh framed charge against five

accused persons namely Ramesh Dutta and Mridul Dutta U/s 506 IPC for

threatening to kill Sourav Borah and against (1) Sarbananda Sonowal (2)

Kokeshswar (3) D.H. Goswami (4) Ramesh Dutta (5) Mridul Dutta charges

was framed U/s 120(B)/302 IPC. Accused Biren Dutta was discharged. All

the accused persons plead not guilty and cliamed to be tried.

Against the said order of charge dated 21.12.2009,

(1) Sarbananda Sonowal and (2) D.H. Goswami went to Hon'ble Gauhati

High Court for quashing the charge in respect of them vide Crl. Rev.

Pet. No. 18/2010 and 22/2010 respectively. Both the petition was

disposed of on 26.6.2012 by common judgement and order. By that

judgment Sarbananda Sonowal was discharged and Crl. Petition of D.H.

Goswami was dismissed. Accused Ramesh Dutta expired during the

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trial. Out of five accused persons only three accused persons are facing

trial.

(4) In order to bring home the charge against the accused persons

prosecution examined 19 witnesses. There were 51 witnesses as per

final report. Out of the 51 witnesses, prosecution examined 18 listed

witnesses and 1 witness out of the Final Report. 23 witnesses were

dropped. Three witness re-examined . The plea of defence is of total

denial. The accused persons in their statement recorded U/s 313 Cr.P.C.

denied the allegations leveled against them and pleaded that they are

innocent. My predecessor framed the following points for determination.

POINTS FOR DETERMINATION:

1. Whether the accused persons during 1986 and prior to 27.5.1986

at Dibrugarh agreed to do an illegal act, to commit murder of

Sourav Bora by illegal mans and in pursuance of such agreement

engaged some persons to kill said Souravh Bora who at the

relevant time was a student of Dibrugarh University and a leader

of URMKA (United Reservation Movement Council of Assam)

published a pamphlet from the report of Justice J. Singh Committee

which contained relevant portion in respect of corrupt practices of

the Registrar, i.e. the present accused Sri Dibya Hash Goswami

and also had political rivalry with accused Sri Sarbananda Sonowal

as alleged ?

2. Whether the accused on 27.5.86 in front of New Boys Hostel,

Dibrugarh University in pursuant to the Criminal Conspiracy by all

the accused , did commit murder of Saurav Bora by intentionally

causing his death through some engaged persons as alleged ?

3. Whether the accused Ramesh Dutta and Mridul Dutta, on 27.1.86

at the Dining room of New Boys Hostel, Dibrugarh University

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committed criminal intimidation to Saurav Bora by threatening

him to kill with intent to cause him to stop any action or making

any propaganda against Dibya Hash Goswami.

AGRUMENTS OF THE PROSECUTION

(5) Learned counsel for the CBI, submits that P.W. 4 - Baban Singh who

was posted at Rajabheta Out Post, made G.D. Entry. He was present at

the time of inquest. Ext. 2 is the Inquest report. P.W.-13 is Khalilur

Rahman S.I. conducted the inquest. Ext.-3 is the dead body challan,

Ext. 4 is the forwarding of the dead body for P.M., P.W.-5 is also a

witness to the inquest. P.W. 4, P.W. 5, P.W. 13 proved the inquest report.

P.W.- 17 Dr. N. Sonowal, he conducted post mortem. Ext. 10 is the P.M

report. He was concurring doctor. Actual Post mortem was done by Dr.

M.N. Gogoi. As he expired so he could not be examined. However, PW-17

concurred with the opinion of Dr. M.N. gogoi. From the above evidence it

is proved that Sourab Borah was killed in the campus of Dibrugarh

University. Regarding death and plca of occurrence defence did not

diputed the fact. Hence, this court agrees with the avobe submssion and

it is held that the death of the deceased was occurred in the campus of

Dibrugarh University.

Learned CBI counsel submitting on the framing of charge

apprised this court that only Mridul Dutta is facing trial U/s 506 IPC.

Learned counsel for the CBI submits that though no specific charge U/s

506 IPC is framed against accused DH Goswami, yet in exercise of

power given under section 221(1) and (2) of CrPC court can convert

major offence to minor offence, Since charge against D H Goswami is

framed against 302 IPC, a major offence, the said charge can be

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converted to 506 IPC, a minor offence of 302 IPC. Since threatening is

proved , the accused may be convicted and sentenced U/s 506 IPC (Part

II ). In support of his argument he relied on judgment decided in

S.Ganeshan-vs- Ramaraghuraman and ors (2011) 1 SCC (Cri)

601= ( 2011) 2 SCC 47.

Learned CBI Counsel further submits that there are

threatening from two sides : One threatening by Mridul Dutta and

Ramesh Dutta in the Dining Hall. Other threatening by D.H. Goswami in

the Fresher Social of Sociology Department when corruption of accused

DH Goswami, the then Registrar, was exposed. Learned Counsel submits

that all the reports of threatening was given by Sourav Bora himself

which is a oral dying declaration covered under section 32(1) of the

Evidence Act. In support of his argument he relies on judgment decided

in Haikrujam Caoba Singh Vs. State of Manipur AIR 2000 SC.

Learned counsel further submits that the conduct of the

accused DH Goswami is also suspicious as he did not respond to the

Notice U/s 160 CrPC of CBI. He points out that P.W. 19 deposed that

noticed U/s 160 Cr.P.C.was given to him to appear before him at CBI

Office, New Delhi but he did not appear. Learned counsel submits that

post conduct of the accused is relevant U/s 8 of Evidence Act. Learned

counsel submits that all this circumstances prove that there was

threatening given by the accused . Even though charge u/s 302 IPC

may not be proved but charge U/s 506 IPC has been fully proved .

Learned CBI counsel further submit that there were conspiracy among

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the accused to eliminate the deceased has also been proved, there are is

no clrear proof of agreement. But conspiracy is infrred from the act of the

accused persons. In support of his argument he relied on Bajayan @

Rajen Vs. State of Kerala Ram1 999 Crl J. 1638 (SC)Para-11.

ARGUMENT OF THE DEFENCE

(6) Learned counsel for the defence arguing in favour accused

Koseswar Saikia, states that AASU was lead by Sarbananda Sonowal and

Biren Borah was the leader of the group. One leader Sarbananda

Sonowal was discharged by the Hon’ble High Court and Biren Borah was

discharged by the this court i.e my predecesor. Biren Borah was a P.G

student, Kosehshwar Saikia was the executive Member. This fact was

admitted by P.W.- 2, P.W.- 3 and P.W.- 5. Kosheswar Saikia being the

member of the executive Committee, went to suggest the agitating

group to withdraw the agitation. Three persons went there, they were B.

Borah, Sarbananda Sonowal and Kuseswar Saikia. When two persons are

discharged one person can not be convicted as the he also stands on the

same footing.

Arguing in favour of Mr DH Giswami, learned defencee counsel argued

that conduct of D H Goswami like not apprearing in the office of the CBI,

New Delhi as per Notice U/s 160 Cr.P.C. can not be an offence as he went

to Hon’ble High Court as it is his right. Moreover, Mr. Goswami has

appeared thrice before the CBI at Dibruagrh. He was asked to appear at

New Delhi which is beyond the jurisdiction of CBI. CBI filed closure

Report on 26.6.1990 stating that the accused persons can not be

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connected with the offence, P.W.-18 has not recorded the case diary

himself as he does not know english. So he cannot confirm the hostile

part.

Learned defence counsel further submits that P.W. 2 deposed

that he was not present in the Freshers Social Function of Sociology

Department. Since it is a function there must be have been other

persons who were present in the function. But prosecution has failed to

produce any of the witness except this witness. PW.2 did not inform the

aspect of threat either to the police, University Authority or Warden of

the Hostel regarding the threat given by the Mr Goswami. Hence, the

prosecution has failed to prove the case of threatening beyond

reasonable doubt.

(7) Learned senior advocate, Mr. B. Baruah, arguing in favour of the

accused submits that there is no eye witness in this case, entire case is

based on circumstantial evidence. In the instant case it is alleged that

Saurav Borah received threats from the Registrar of Dibrugarh University.

Apart from Registerear, there were other sides like AASU and AGP. So,

there were three sides AASU, AGP and the Registrar. It is also alleged

that Mridul Dutta and Ramesh Dutta both threatened Saurav Bora in the

Dining Hall while Dibya Hash Goswami threatened Saurav Bora in the

Freshers' Social. Though P.W.- 9 stated that there is a gap of one

month between the fresher social and death of Saurav Borah., this

witness could give the exact date of the fresher social. Though other

witnesses stated that Mr. Goswami threatened Mr. Bora in the Freshers

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Social, none of the witnesses could give exact time and dated of

threatening of Mr. Borah. In fact, there was no fresher social held in the

University. Learned senior counsel further submits that Fresher

Social normally held when new comers admitted to the University. Month

of April was not a admission session. If the fresher social would have

been held, only one month ago, certainly these witnesses could have

given exact time and date. Moreover, Mr Goswami hold a respenbile post

like Registrar, he can not use unprliamentary language challenging Mr

Bora, the language used in challanging Mr Bora is not befitting to his

dignity. Hence, the allegation of threatening by Mr Gowmai is a baseless

allegation.

Moreover, P.W.-2, Amar Jyoti Gogoi and P.W.-3 Debabrata

Sharma - Testimony of both the witnesses was recorded on 22.11.2012.

P.W.-2 in cross-examination deposed that he saw the accused Mridul

Dutta after 26 years. In this case Test Identification Parade was not done.

Testimony of Indentification in the dock after 26 years can not be

accepted. There is no eye witness, entire case is based on

circumstantial evidence. But to convict on circumstantial evidence,

there must be a completion of chain. But in this case prosecution has

failed to prove completion of chain of the circumstances. In support of his

argument he relied on Chandramal and others –vs-State of

Rajasthan AIR 1976 SC 917 ( Para 15 ) and Rumi Bora Dutta Vs.

State of Assam, 2013(5) GLT (SC) 1 (Para-12 and 13). Learned

Senior advocate further submits that the prosecution has failed to prove

any conspiracy U/s 120(B) IPC as there is no prove of agreement to do an

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illegal act . In support of his argument he relied on Bajayan @ Rajen

-Vs.- State of Kerala Ram1 999 Crl J. 1638 (SC).

Learned counsel further submits that none of the act of threatening

can’nt be connected the death of the deceased. As per section 6 of the

Evidence Act, the relevant fact are not of ‘the same transaction’

hence, the fact of threatening can not be connected with the death of the

deceased. Like wise section 32(1) of the Evidence Act does not apply on

the same reason. Prosecution has failed to prove the charges againt all

the accused person beyond reasonable doubt. Hence, the accused

persons are entitled to be acquitted.

I have heard the argument advanced by the learned counsel

for both sides and perused the entire evidence on record. I have gone

through the decisions relied on by the parties. I found some judgments

are relevant in this case. Now let me discuss the evidence available on

record.

DISCUSSION, DECISION AND REASONS THEREOF :

( 8 ) Now let us discuss the evidence in brief. P.W. 1, Sri

Pramod Ch. Mahanta, who happens to be the Syndicate Bank

Employee, Jorhat Branch. On 22.5.86 he was transferred to Dibrugarth

Branch and joined the Dibrugarh Branch on 27.5.86. On 27.5.86, after

office hours, he went to Dibrugarh University campus by city bus and

wanted to stay for the night with one of his friends Shri Saurav Bora who

was a student of Dibrugarh University. At about 6 PM, he reached the

University campus and met his friend, Sourav Bora who had come from

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his hostel room and went to the canteen to have tea and snacks with the

fellow students.

After about 15 minutes, Sourav Bora came out of the

canteen and both of them went from the nearby canteen towards his

hostel. Before they reached the hostel, in between the canteen and the

hostel on the road (inside the campus), he heard a sound like that of

cracker and immediately, his friend, Sourav Bora fell down and he turned

around. While turning around and falling down, he fell on his hands as he

was nearby him. Saurav also made some sound, maybe due to pain.

After Sourav Bora fell down, he saw two men at a

distance of about 100 meters towards their back who were fleeing away

and those two persons fled away in a bicycle. Immediately this witness

raised hue and cry. He realised that Sourav had been fired by bullets. On

hearing his hue and cry, the students and inmates of the hostel came out

and about 20/25 persons assembled. Amongst them, he knew Shri

Amarjyoti Gogoi and Shri Debabrata Sarma from before. A vehicle was

engaged and Sourav Bora was taken to AMCH, Dibrugarh and the doctors

of AMCH declared him dead on arrival. This witness along with Amarjyoti

Gogoi sat in the rear seat of the vehicle with Saurav Bora on their lap, on

their way to AMCH. This witness further stated that after Sourav was shot

he fell down and after he raised hue and cry, the students from hostel

came out and asked him what happened. Amarjyopti Gogoi and

Debabrata Sarma also asked him as to what happened and he told them

regarding the incident.

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During cross-examination, this witness stated that CBI

examined him on number of occasions including Jorhat and Dibrugarh.

(9) P.W. 2, Sri Amarjyoti Gogoi, has stated that he was a student

of M.S.C. (Physics) of Dibrugarh University from 1984 to 1987. He

resided at University hostel during that time.

During the year 1986, he was staying with late Saurav Bora in the

hostel of Dibrugarh University, being New Boys' Hostel.

He first came to know Saurav Bora in the year 1976. Both of them

passed Matriculation examination in 1976 and both of them studied pre-

degree course at J.B. College, Jorhat. This witness along with other

witness know Saurav Bora, as he was a Student leader, being Zonal

Secretary of Jorhat Branch Unit of AASU (All Assam Students' Union). In

1978, he joined Jorhat Science College and became the Secretary of the

Students' Union. Thereafter, became a member of AASU and got closely

associated with Saurav Bora.

This witness further stated that Saurav Bora was associated with

AASU but later on he distanced himself from AASU and in the year

1984/85, he became All India President of ISA ( Indian Students'

Association).

During Assembly Election in the year 1985, this witness along

with seven others were expelled by the University Authorities for their

involvement and in bringing out a leaflet asking people to take side /

vote during the elections. The others are (1) Debabrata Sarma, (2) Naren

Konwar, (3) Uttam Gogoi, (4) Smti. Nandita Pegu, (5) Ghana Kanta Doley,

(6) Amanur Kerim and (7) Nahi Ra Das.

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After expulsion all the aforesaid students filed joint writ

petition before the Hon'ble Gauhati High Court challenging their

expulsion. The Hon'ble High Court granted stay against their expulsion

and allowed them to appear in the examination. After expulsion, Saurav

Bora led a students' movement in the University and students' agitated in

the Main Gate of Administrative Building of the University. The University

was paralyzed for three days during that period.

When they were agitating in front of the Main Gate of the

Administrative Block of University, a rival group of students led by

Kosheswar Saikia, Biren Baruah, etc. supported the decision of the

University Authority.

Sourav Bora led a Students' movement against the alleged

corruption of the then Registrar of the University, Shri Dibya Hash

Goswami. The report of the Enquiry Committee led by Justice Jagjit

Singh, exposed the corruption of Dibya Hash Goswami in the affairs of the

University. Sourav Bora brought out leaflets against Dibya Hash

Goswami incorporating extract of report of Justice Jagjit Singh Committee.

The movement of Sourav Bora made the students community aware

regarding the corruption of Dibya Hash Goswami.

This witness further stated that one evening after the

students had dinner in the hostel, Saurav Bora was having dinner alone

in the hostel. He was also in the Dining Hall. Two persons came to the

Dining Hall and threatened Sourav Bora to leave student politics or else,

he would be wiped way . He saw both the persons. They were Mridul

Dutta and Ramesh Dutta. This witness also identified Mridul Dutta in the

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dock of the Court today. At that time Sourav Bora was leading the

movement against corruption of Dibya Hash Goswami, Registrar of

Dibrugarh University and this witness along with others understood

that because of the said reason, Mridul Dutta and Ramesh Dutta gave

threatening to Saurav Bora.

Sourav Bora was a student of Sociology Department. He

told me that during Freshers’ Social Function in the Sociology

Department, Dibya Hash Goswami was invited. However, when Sourav

Bora gave his speech, he returned to the report of Justice Jagjit Singh

regarding corruption of Dibya Hash Goswami. Shri Dibya Hash Goswami

reacted sharply in a negative way to the above, and Shri Dibya Hash

Goswami threatened Sourav Bora that either D.H. Goswami or Saurav

Bora would remain alive in the University. Sourav told this witness

regarding above.

Sourav was murdered. He was shot dead by gunfire on

27.5.86 near the Gate of New Boys' Hostel of Dibrugarh University. He

heard gun fire. Debabrata Sarma was with him at that time which was

around 6 PM. After they heard gun fire, this witness ran towards Sourav

Bora and saw that he was seriously injured that that he was shot. Pramod

Mahanta was with Sourav Bora at that time. This witness raised hue and

cry and asked Debabrata to come. Soon thereafter, Debabrata also

came. Then he went to arrange for a car to take Sourav Bora to AMCH,

Dibrugarh. Both himself and Debabrata Sarma asked and enquired from

Pramod Mahanta as to what happened. He told us that two persons came

and one shot at Saurav Bora and thereafter, both of them fled in a

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bicycle. Pramod Mahanta could not identify the persons who shot

Sourav. Many students gathered on the spot. This witness arranged a

vehicle and took Saurav Bora to AMCH, Dibrugarh. Along with this witness

Debabrata Sarma and Pramod Mahanta were in the vehicle besides the

driver. Sourav Bora was declared ‘brought dead' at AMCH, Dibrugarh by

the attending Doctors. On the subsequent day, the dead body of Sourav

was brought to the University after post mortem examination. After

giving floral tributes at University campus, the dead body of Sourav was

taken to his home at Titabor where his last rituals were performed.

In his opinion Saurav Bora was murdered as he raised

public opinion regarding corruption in Dibrugarh University. Sourav Bora,

being All India President of Indian Students' Association (ISA) was against

the ideology of AASU, AGP, etc. and because of the aforesaid political

rivalry, he might have been murdered.

During cross-examination he stated that he was a

regular boarder of a single seated room of Hostel No. C of Dibrugarh

University. He was in the 1st Floor. Saurav Bora was in Block-A. He

cannot recall or remember how many rooms were there in Block A or B.

The distance from the road to Block A would be about 50 meters. When

Sourav Bora was shot this witness was talking with Debabrata Sarma in

Block A. After hearing gun shot, he went to the spot of occurrence. Other

boarder of the hostel also heard sounds of shots. However, they did not

immediately go out.

This witness denied the suggestion of the prosecution

that he and Debabrata Sarma went out after they were informed that

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Sourav Bora was shot. This witness stated before CBI that immediately

thereafter he along with Debabrata Sarma rushed to the spot and on

reaching the spot he found that Sourav Bora was lying on the ground

being unconscious in blood stained cloth. This witness has also stated

that he has seen the accused Mridul Dutta after a gap of 26

yards. After talking with another witness Debabrata Sarma he

was confirmed that person present in the dock is accused Mridul

Dutta. This witness also stated in his cross-examination that he assumed

that the accused standing in the dock is Mridul Dutta.

On the night when Ramesh Duta and Mridul Dutta

came to their Hostel and threatended Saurav Bora, he has

having his dinner alone after the others.

On that day, he was in the adjoining TV Room after having

dinner. He can not recollect whether threre was a room in between the

Dyning Room and T.V. Room.

Sourav Bora told him that Mridul Dutta and

Ramesh Dutta threatened him. He did not personally see the

aforesaid two persons threatening Sourav Bora. He can not collect

who else were present when Mridul Dutta & Ramesh Dutta threatened

Surav Bora.

This witness denied the suggestion of the defence that Mridul Duta and

Ramesh Dutta did not threaten Sourav Bora, as alleged. He also stated

that besides him, others also witnessed the agitation led by Sourav Bora,

the threatening given to him and his killing. He was not present in the

Fresher's Social Function of Sociology Department. Sourav Bora

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told him regarding the threatening given to him by Shri Dibya

Hash Goswami in the evening itself. He also stated that himself,

Sourav Bora and Deba Brata Sarma are the intimate friends. He denied

the suggestion that he deposed falsely as he was close to Sourav Bora.

(10) P.W. 3, Dr. Deba Brata Sarma, who happens to be the Head of

Deptt. of English, Jorhat College, has stated that, he knew Sourav Bora.

He was a student of J.B. College, Jorhat. This witness was also a student

of J.B. College, Jorhat. He was two years junior to him in the college. He

knew him from his college days i.e. 1978-79. They also studied at

Dibrugarh University at the same time. Both this witness as well as

Sourav Bora were associated with activities of Students' Organisation .

This witness was the Joint Secy. of United Students' Federation whereas

he was member of AASU and General Secretary of Jorhant Unit of AASU.

Later he became Gen Secy of AASU, Central Committee, Guwahati. A split

arose in AASU as one branch was of the view that influx of foreigners

was the main issue whereas Saurav Bora and others were of the view

that economic condition of Assam was the main issue.

After the split in AASU, Saurav Bora came out of AASU

with his group and he led by Amal Sarma as President and Saurav Bora

as Gen Secy. together with USF and many other students organization of

India formed Indian Students' Association (ISA). Sourav Bora became the

2nd All India President of ISA. Before Assembly Elections in the year 1985,

this witness along with others formed a Core-Committee and eight of

them published and circulated a pamphlet containing an appeal to the

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people of Assam on the eve of Assembly Election from the campus of

Dibrugarh University. They printed 10,000 copies which was widely

circulated in whole of Upper Assam, more particularly in undivided

Dibrugarh District ( at present Dibrugarh and Tinsukia Districts).

Eight signatories of the pamphlet including this witness

were expelled by the University Authorities. The others were Anan Jyoti

Gogoi, Utam Gogoi, Naren Konwar, Ghana Kanta Pego, Nandita Pegu,

Anand Karim and Nahiram Das.

Before their expulsion, this witness, Saurav Bora and

others were agitating actively against the corruption of Dibya Hash

Goswami, Registrar of University following the report of Justice Jagjit

Singh Enquiry Commission, In the said Report 17 allegations out of 22

allegations against Dibya Hash Goswami were proved. This witness along

with others published extract of the aforesaid Report of Justice Jagjit

Singh. After that , on several occasions, Dibya Hash Goswami ill treated

Sourav Bora and an one occasion, Dibya Hash Goswami ill treated Sourav

Bora. There was a Freshers Social Meet in the Deptt. Of Sociology of

which Sourav Bora was a student.

In presence of Dibya Hash Goswami, Saurav Bora publicly

exposed him regarding the findings of corruption arrived at by Justice

Jagjit Sihgh. Dibya Hash Goswami walked out of the meeting and

threatened Saurav Bora that either Saurav Bora or Dibya Hash Goswami

will live and Sourav Bora told this witness regarding this. At that time,

Sarbananda Sonowal was the President of AASU Unit of Dibrugarh

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University. Dibya Hash Goswami was very close with the members of

AASU.

Due to circulation of the pamphlet by this witness and

others, just before the Assembly elections, it had some impact in society

and AGP (Asom Gana Parishad) did not fare well in the elections. Both

AASU and AGP pressurized the University Authorities to expel them and

accordingly this witness and others were expelled.

Dr. Sailadhar Gogoi, who was Vice-Chancellor of the

University himself told this witness and others that both AASU and AGP

were behind their expulsion. Immediately after their expulsion Sourav

Bora led movement of Students and the University was paralysed for

three days.

Thereafter, Sarbananda Sonowal and Kusheswar Saikia,

both of AASU brought outsiders like Ramesh Dutta and Mridul Dutta to

the affairs of the University and threatened the group led by Sourav Bora.

Sourav Bora was also personally threatened.

It is further stated by this witness that on 27.1.86, Ramesh Dutta

and Mridul Dutta came to the Dining Hall of New Boys' Hostel of D.U. and

threatened Saurav Bora that he should stop his activities. They also

threatened that otherwise he would have to face dire consequences. This

witness was near the Dining Hall. This witness had seen and identified

Mridul Duta in the Court. He also stated that on 27.5.1986, Saurav Bora

was shot from the back side while he was walking with Pramod Mahanta

inside the University campus.

20

This P.W. is a border of Block B of New Boys' Hostel. On

27.5.86, when he was in his hostel at about 6.45 pm, he heard a sound

like that of cracker and one man crying loudly. Shri Amar Jyoti Gogoi was

with him in the hostel. Immediately Amarjyoti and this P.W. rushed to

spot and found Sourav Bora lying on the ground. Pramod Mahanta was

with Saurav Bora. Other students also started assembling. This P.W.

asked Pramod Mahanta and he told this witness that Saurav Bora was

shot. Amar Jyoti Gogoi left to search for a vehicle and Sourav Bora was

taken to AMCH, Dibrugarh by this P.W. along with Pramod Mahanta and

Amar Jyoti Gogoi where the doctors declared him 'brought dead'. On the

following day after post mortem examination, the dead body of Sourav

Bora was brought to the University campus, condolence meeting was

organized and his dead body was taken to his home town Titabor

Dangdhora.

During cross-examination, this witness has denied

that he did not state before CBI that Sarbananda Sonowal and his group

threatened them on several occasions. He also stated that they informed

Hostel Warden regarding the threatening given to Sourav Bora by Mridul

Dutta and Ramesh Dutta. This witness denied the suggestion that no

threatening was given to Saurav Bora and they did not inform the Hostel

Warden. When Ramesh Dutta and Mridul Duta threatened Sourav

Bora , some students were eating dinner. They also heard the

threatening. This P.W. also heard both Ramesh Dutta and Mridul

Dutta threatening Saurav Bora.

21

This P.W. Stated that it is a fact that he stated before

CBI that while he along with Sourav Bora and Amar Jyoti Gogoi were

taking meal /dinner, Mridul Dutta and Ramesh Dutta came to the Dining

Hall and threatened Saurav Bora. This P.W. also stated that the report of

Justice Jagjit Singh enquiry was not published. This P.W. also stated

that he was not present in the Freshers' Social Meet of

Sociology Deptt. He denied the suggestion that Dibya Hash Goswami

did not threatened Saurav Bora during the Freshers' Social Meet of

Sociology Deptt. He also denied that out of anger towards Dibya Hash

Goswami, he deposed falsely in Court. He also denied that Dibya Hash

Goswami is not connected in any way with the murder of Sourav Bora.

During his further cross-examination, this witness has

stated that he has seen Mridul Dutta, after a gap of nearly 25/26 years.

He knows that Ramesh Dutta has expired. He denied the suggestion

that since accused Mridul Dutta is standing in the court, he has presumed

that the said accused is Mridul Dutta.

(11) P.W. 4, Sri Babu Singh, S.I. of Police, has stated that on 27.5.86,

he was attached to Rajabheta Petrol Post as ASI of Police. The campus of

Dibrugarh University falls under Rajabheta Petrol Post under Dibrugarh

Police station.

On 27.5.86 at 6.50 pm he made G.D. Entry No. 427/86 dated

27.5.86, to the effect that one Shri Prakash Dutta, a student of Dibrugarh

University came o the post and verbally informed that Sourav Bora, a

student of Sociology final year and is a resident of New Boys' Hostel was

22

fired upon by some unknown assailants near the hostel and Sourav Bora

was lying in unconscious state. This PW immediately informed Dibrugarh

P.S. over telephone and then proceeded to the place of occurrence, in

this connection and made G.D. Entry No. 428. Ext.-1 is the extract of

G.D. Entry No. 427 and 428 which were made in by his own handwriting.

This witness further stated that dead body of Sourav Bora was taken to

AMCH, Dibrugarh and there Khalilur Rahman, ASI made inquest and this

P.W. also put his signature on the Inquest report.

During cross-examination , this witness stated that he

cannot remember and recall who was the In-Charge of Rajabheta P.P. on

27.5.86. The I/C did not issue any written direction to this P.W. to

investigate the case. This witness admitted that he will not be able to

identify Prakash Dutta if he see him. He denied the suggestion that

Prakash Dutta did not inform him regarding the incident.

(12) P.W. 5, Sri Loken Chandra Saikia, has stated that he passed

M.A. From Dibrugarh University. He was a student of Dibrugarh

University from 1986 to 1988. He was residing at C. Block, New Boys'

Hostel. He knew Sourav Bora who was a border of B. Block , New Boys

Hostel. He further stated that Sourav Bora was shot dead in front of New

Boys Hostel on 27.5.86. Before his murder this witness met him on that

day. Both this witness and Sourav Bora had tea and snacks in the

canteen at about 2 pm. Sourav was shot dead at about 6.15 /6.30 PM. At

that time this P.W. was in his room. This witness came to know that

Sourav was shot dead only after his dead body was taken to AMCH. He

also put his signature on Inquest, Ext. 2 and Ext. 2(1) is his signature.

23

During cross-examination he has stated that he does not

know where he put his signature on Ext. 2, Inquest report.

(13) P.W. 6, Sri Lakhmi Nath Konwar, Retired Professor of

Dibrugarh University, Deptt. Of Education, has deposed that in the year

1986, he was serving at Dibrugarh University as Lecturer in Education

Dept. In that year he was Warden of 'B' block, New Boys' Hostel,

Dibrugarh University. He knew Sourav Bora. He was student of Dibrugarh

University and at the material period he was boarder of aforesaid Hostel.

He also knows Dr. D.H.Goswami, the then Registrar of Dibrugarh

University.

He further deposed that on the day of occurrence at

around 6.30 PM he was at his residential quarter in the Dibrugarh

University Campus which is situated at a distance of about 50-60 yards

from the place of occurrence. At that time he heard a sound of burst like

bicycle puncture. Around 10 minutes thereafter, a student came to his

quarter and informed him that a border of 'B' block hostel, namely, Sri

Sourav Bora was shot dead. He was unable to remember the name of the

said student who informed him. He then rushed to place of occurrence

which is situated at a distance of around 15-20 yards from 'B' Block

Hostel. He found Sourav Bora lying at the place of occurrence on the road

with his face downward. He thought that he was alive and so he called

him by his name holding his head. But there was no respond. He then

rushed to nearby Rajabheta Police out post on foot and informed the

incident to the police. Policeman of the said out post informed him that

24

the O/C of the Outpost already left for the place of incident. He then

came back to the place of occurrence to find Sourav Bora but he was

already shifted to Medical. This P.W. does not remember whether he

informed the matter to the Registrar of the University. He does not know

whether any student of the Univerity suspended from University prior to

the occurrence in the year 1986.

He does not know anything about the connection of the Official of the

University with the occurrence.

(At this stage the prosecution declared the witness hostile

as he resiled from his earlier statement.)

On Cross-examination by Prosecution, he denied the fact that CBI official

(I.O) during investigation recored his statement. He also denied the fact

that he stated the I.O that

“I informed the Registrar over telephone about the incident but he

did not visit the place of occurrence. In January 1986 the Executive

Committee of the University suspended eight students and Sourav Bora

had led the student in an agitation for the withdrawal of the decision by

the University. He also used to publish pamphlet , poster etc. criticizing

the alleged corruption and other malpractices of the University

Authorities. Sourav Bora published a summary of the report of Jagjit Singh

Committee which was appointed to enquire into the allegation of

corruption against the University Authorities especially against the

Registrar. That pamphlet was personally handed over to the Registrar's

P.A. by Mr. Bora in the formers office. In a farewell party for outgoing

students, Mr. Sourav Bora had accused the Registrar of corrupt practices

25

in the later's presence. On hearing this, Registrar walked out of the

party. Later it is said that Registrar told Sourav Bora personally that only

one of them is going to survive in the University either the Registrar or

Mr. Bora. It is fact that on 27.1.1986 Mr. Sourav Bora was threatened in

the dining hall of the hostel by Mridul Dutta and Ramesh Dutta to stop

his political activity and the propaganda against the Registrar. In this

connection a discussion was held among the Wardens of the hostel and

the matter was brought to the notice of the authorities.”

He denied the suggestion that he deposed falsely that he

does not know whether any student of the Univerity suspended from the

University prior to the occurrence in the year 1986. He denied the

suggestion that he does not know anything about the connection of the

official of the University with the occurrence. Saurov Bora succumed to

his injuries. He also denied the suggestion that he concealed the material

fact and deposed falsely to save the accused persons.

During cross-examination, he deposed that there were three

blocks of University Boys' Hostel i.e. 'A', 'B' and 'C' block located in the

same hostel campus. They have common entrance having common gate.

From the said gate 'A' block is at a distance of about 25 meter. From the

said gate 'B' block is at distance of about 30 meter. Place of occurrence

was at a distance of 40 meters from the main gate of the hostel. Usually

in the evening hours of 4-5 pm boarder of the hostel go out of the room

to outside for tea, snacks etc. He admitted that some Chakraborty from

Guwahati interrogated him with the incident. Other than said

Chakraborty,none interrogated him

26

(14) P.W. 7, Sri Arup Gogoi, has stated that he was an employee

in the Dibrugarh University. At the material period he was Convener of

URMCA. Deceased Sourav was a member of URMCA. Sourav Bora

published a pamphlet but he does not remember the contents of the

same. Sourav died as a result of gun shot. At the relevant time, accused

D.H. Goswami was the Registrar of Dibrugarh University. He knows

accused Mridul Dutta and Kusheswar Saikia. He does not know what kind

of relationship existed between Sourav and accused D.H. Goswami. He

knew Sourav Bora being member of URMCA. This P.W. accompanied the

dead body of Sourav Bora to his native place.

During cross-examination, this witness has stated that he knows

the accused persons, Mridul Dutta, D.H. Goswami and Kusheswar.

(15) P.W. 8, Sri Deba Kumar Chutia, Lecturer of Dhemaji

Commerce College, has stated that he was a student of Dibrugarh

University prosecuting M.Com during the year 1986-88. During that

period he was boarding at New Boys' Hostel, Block “B” Room No. 103 of

the said University. He knew deceased Sourav Bora who was murdered.

At the material time, he came to Dibrugarh Town for marketing. On his

return to university he saw a gathering in front of his said hostel. He

came to know that somebody shot fire to Sourav Bora and he was shifted

to AMCH, Dibrugarh, where he was declared dead. This P.W. along with

other students took the dead body to his native place at Titabor under

Jorhat district. Eight students of their previous batch were expelled by the

27

University authority because of their agitation raised against the

University authority. Among those eight students, Sourav Bora was

included. Sourav Bora published pamphlet against the Registrar Dr. D.H.

Goswami. Through said pamphlet Sourav published extract of report of

Jagjit Singh Committee regarding corruption in the University. This P.W.

heard that Registrar, Dr. D.H. Goswami threatened Sourav Bora over the

said activities of Sourav Bora. Sourav Bora, Debabrata Sarma told him

about the said threatening . Sourav Bora and Debabrata Sarma and

others told him that accused Mridul Dutta and some another Dutta also

threatened Sourav Bora at the Dining Hall of New Boys' Hostel for

activities of Sourav Bora against the corruption of University authority.

During cross-examination he deposed that he returned

from market at the material time and entered University through the

gate namely “Jyoti Batchara”. He also stated that one Borbora

accompanied him to the market. He found a gathering in front of their

hostel. CBI recorded his statement at University Hostel while recording

his statement Assamese, Hindi and English language was used. This

P.W., maintained close intimacy with deceased Sourav. This witness was

also a member of URMCA. He does not remember whether he stated

before the CBI that he heard that Registrar Dr. D.H. Goswami threatened

Sourav Bora over the activities of Sourav Bora. He also does not

remember whether he stated before the CBI that Sourab Bora,

Debabrata Sarma told him about the threatening. He does not remember

now whether he stated before the CBI that Sourav Bora, Debabrata

Sarma and others told him that accused Mridul Dutta and some another

28

Dutta also threatened Sourav Bora at the dining hall of the New Boys'

Hostel for activities of Sourav Bora against the corruption of University

authority. He denied that he deposed falsely.

(16) P.W. 9, Smti. Nandita Pegu, has stated that he did his M.A.

from Dibrugarh University in the year 1984-86. He knew deceased Saurav

Bora. He was a student of Dibrugarh University under Sociology

Department. He studied with this P.W. This witness along with Sourav and

other students formed an organization namely United Reservation

Movement Council of Assam, in short, URMCA. Purpose of forming this

organization was to create reservation quota for ST/SC students of

Dibrugarh University. They worked under the banner of this Organisation.

At the time of General election in the year 1985 they published

a‘leaflet' criticising the activities of ruling Government. At that

time Asom Gana Parishad was the ruling Government. Said leaflet was

published under the name of eight students including this witness. The

Heading of the leaflet was ‘From Dibrugarh University’. Consequently,

University authority rusticated them for one year. They challenged

before Hon’ble Gauhati High Court and as per High Court's order they

were allowed to continue their study in Dibrugarh University.

He also stated that further leaflet was published by

Sourav Bora, at his own effort highlighting the corruption and

misappropriation of University fund by the then Registrar including

others. At that time Dibya Hash Goswami was the Registrar of Dibrugarh

University and this witness knew him. There was a Fresher Welcome

Function of Sociology Department. In that function Sourav Bora and D.H.

29

Goswami, both addressed in the function and heard threatening of

Sourav Bora by D.H. Goswami. On 27.5.1986 Sourav Bora was killed by a

gun shot in front of Boys' Hostel No. 1. There was a gap of one month

between Fresher in Sociology Department and the death of Sourav Bora.

During cross-examination this witness stated that leaflet

was published before the General Assembly Election 1985. Before the

General Election 1985 AGP was not in power. The second leaflet

published personally by Sourav. This witness did not see the leaflet. This

witness could not remember the date of holding the freshers social

welcome function. On the day of killing of Sourav Bora this witness was

present in the University. He does not know who and how Sourav Bora

was killed.

This witness was recalled and document mark ‘A’ was shown her to

which she replied that document ‘A’ is not the said leaflet.

(17) P.W. 10 Sri Kamini Mohan Deka, who happens to be the

retired Professor, Department of Political Science, Dibrugarh University,

has deposed that he knew the deceased Sourabh Borah. He was student

of Dibrugarh University. He was killed by gun shot about 27/28 years ago.

During that period Dibya Hash Goswami was the Registrar of Dibrugarh

University. He was member of Executive Council of Dibrugarh University

for one or two years and Sri D.H. Goswami being the Registrar was the

Ex-Officio Secretary of the Executive Council. Prior to the date of the

incident, He was out of the University for about 2/3 days and on the date

of occurrence only this witness arrived at Dibrugarh University and learnt

30

about it only when he arrived at Dibrugarh University. He could not

remember whether condolence were done on the death of Sourav Bora.

He does not know how was the personal relation of deceased Sourab

Bora and Sri D.H. Goswami.

This witness was declared hostile by the prosecution as he

resiled from his earlier statement and corss examined with the leave of

the court. In his cross-examinatin by the prosecution he denied that

“I do not remember whether CBI has recorded my statement or

not. I could not remember whether I stated to CBI that on 28.5.1986 a

condolence meeting was held to mourn the death of Sourabh Borah. In

this meeting initially Sri D.H. Goswami the Registrar was there in the

frontline along with Vice Chancellor and himself but in a short while he

withdrew to the back ground. Neither did he put any garland or wreth on

the dead body nor said a single word of condolence. The Registrar also

did not convene the Court meeting of the University in this connection.

From the next day Mr. Goswami proceed on leave.”

He also denied that he stated before the CBI that ‘I have heard

from Sourabh Borah and other staff and students that Mr. D.H. Goswami,

challenged Mr. Bora that either he (Registrar) or Mr. Bora would remain

alive in the University. It is not a fact that I stated to CBI that I have also

heard about the threat given by Mridul Duta and Ramesh Dutta to Sri

Sourabh Borah in the Boys hostel Mess’.

He also stated that he worked in Dibrugarh University for 38

years. All those years he got Dr. D.H. Goswami in the Dibrugarh

University. He had acquaintance with Mr. Goswami. He denied the

31

suggestion that he deposed falsely in this Court. He does not remember

whether CBI confirmed his earlier statement subsequently by another

statement.

During cross-examination this witness stated that he did not

see whether CBI recorded his statement or not. Court meeting is not held

on the death of a Student, but it is held as per Dibrugarh University Act.

(18) P.W. 11, Sri Aasish Saikia, has stated that during the

year 1986 he took admission in Dibrugarh University in the department of

Statistics. He does not know Sourav Bora but he learnt from news paper

and other sources that he was killed in the Dibrugarh University campus.

During that period Sri D.H. Goswami was the Registrar of Dibrugarh

University.

(19) P.W. 12 Sri Prakash Gogoi, who happens to be the

Principal of C.K. Hazarika B.Ed College, Dibrugarh, has stated that in the

year 1968, he joined Dibrugarh University as Assistant Librarian and he

retired from the service in the year 1998 as Librarian. He knows both

deceased Sourav Bora and accused D.H. Goswami. D.H. Goswami was the

Registrar of Dibrugarh University. He knew Sourav Bora. He was a

student of Sociology Department of Dibrugarh University. During that

time, there was an agitation against the administration of Dibrugarh

University and Sourav Bopra who led agitation. This witness cannot

remember the exact reason for their agitation during lapse of time. This

witness also does not remember about the incident occurred at the

32

Fresher's Meet of Sociology Department of Dibrugarh University but

there was some incident. Sourabh Bora told this witness about some

threatening to him. This witness could not remember as to who gave

threatening to Sourav Bora.

This witness is declared hostile by the prosecution as he

resiled from his earlier statement and with the leave of the court cross-

examined by the prosecution that -

“Late Sourabh Bora told me sometime in the April 1986 that on

the eve of Fresher's Social of Sociology Department Sri D.H. Goswami

threatened Sourabh Borah for dire consequences.”

This witness further denied that as he worked under

D.H.Goswami and due to his political acquaintance he did not take his

name.

During his cross-examination by defence this witness

stated that he knew Sourav Bora as he knew other students. In the

University Library while this witness asked Sourav Borah as to

how his agitation going on, he replied that he received threat

from many corners. At that time there may be other person but at

this time he could not remember them. He denied that Sourabh Borah did

not tell like that.

(20) P.W. 13, Sri Khalilur Rahman, Retired Sub-Inspector, has

stated that in the year 1986, he was at Borbari O.P. as Attached Officer.

Assam Medical College, Dibrugarh, falls within the jurisdiction of Borbari

Outpost and Dibrugarh Police Station. On 27.5.86 he was at Borbari Police

33

Outpost. He conducted inquest over the dead body of Sourav Bora at

Casualty Department of Assam Medical College & Hospital, Dibrugarh in

presence of witnesses identified by Babu Singh ASI of Rajabheta Police

Outpost and Loken Saikia and Prem Kumar Mahato. Ext. 2 is the inquest

report wherein Ext. 2(3) is his signature. This P.W. sent the dead body for

post mortem examination through a challan Ext. 3. Ext. 3(1) is his

signature . Ext. 4 is the forwarding report of sending the dead body of

Sourav Bora for post mortem examination. During inquest he found hole

injury of 1 ½ inch above the umbilicus and in the back side also found

similar injury and also learnt that he was injured by gun shot by some

miscreant at 6 PM on that day i.e. 27.12.86.(sic).

During cross-examination he denied the suggestion that none

of the witness identified the dead body. This witness admitted that he did

not wrote cause of death in his inquest report.

(21) P.W. 14, Sri Ranjan Chakraborty, has stated that during

the year 1986, he was posted at Dibrugarh as Executive Magistrate. On

29.5.1986, in connection with Dibrugarh P.S. case No. 398/86 a search

was conducted by the I/O in presence of this witness at room No. 217 of

Block B of New Boys' Hostel, Dibrugarh University, which was room of late

Saurav Bora. During search 52 Nos of items were seized and listed in

search cum seizure list. Ext. 5 is the said Search cum seizure list where

Ext. 5(1) and Ext. 5(2) two sheets are his signatures. Besides this

witness there were other witnesses who were also present during the

search cum seizure.

34

During his cross-examination he has stated that he has not seen

the seized articles in the Court. He also does not remember what types of

articles were seized.

(22) P.W. 15, Sri Padmeswar Konwar, Retired Deputy

Superintendent of Police has deposed that in the year 1986 he was

posted at Dibrugarh PS as Sub-Inspector of Police. On 27.5.1986 at about

6.50 PM one information from Dibrugarh University Police Outpost was

received at Police Station regarding killing of one Sourav Borah, a student

of Dibrugarh University by gun shot. On receipt of the said information,

the then O/C, Dibrugarh P.S. Sri Amal Das instructed this witness to visit

P.O. and accordingly he visited the P.O. along with police party. By the

time, he reached Dibrugarh University and the victim was shifted to

AMCH, Dibrugarh. However, he visited the P.O. which was in front of the

New Boys' Hostel of Dibrugarh University but due to darkness, he could

not collect anything. Thereafter, he rushed to AMCH, and on enquiry

learnt that Sourav Bora is already dead. Then he lodged a written

complaint to O/C, Dibrugarh P.S. and O/C on receipt of the said ejahar

registered and entrusted this witness to investigate the case.

On 28.5.1986 he again visited the P.O. and searched there in

presence of witnesses namely Sri Bimal Bhuyan and Sri Shyamanta

Thakur. During the search one empty cartridge of pistol was recovered

and seized by this witness. Ext. 6 is the search cum seizure list wherein

Ext. 6(1) is his signature. Ext. 6(2) is the signature of witness Sri Bimal

Bhuyan and Ext. 6(3) is the signature of Sri Shyamanta Thakur which

35

was given in front of this witness. On 29.5.86 this witness conducted

search at the room No. 217 of Block B, New Boys' Hostel, Dibrugarh

University in the room of Late Sourav Bora in presence of witnesses

Executive Magistrate, Sri R.C. Chakraborty and other witnesses. During

the search 52 numbers of items which are mainly different documents

were recovered and seized vide Ext. 5. Ext. 5(3) is his signature in the

search cum seizure memo. Ext. 5 is prepared by himself. During the

part of investigation of this witness recorded the statement of some

witnesses in connection with Dibrugarh P.S. Case No. 398/86. Thereafter,

as per order of Superior Officer the investigation was handed over to the

CID, Guawahti, and accordingly, this witness handed over the case diary

to the CID Inspector Sri C.K. Bora. Sri Amal Das, the then O/C, Dibrugarh

P.S. has expired. This witness also know Sri H.D. Phukan, the then

Inspector of Police also expired.

On 27.5.1986, Sri Amal Das, O/C, Dibrugarh P.S. vide his

letter requested District Magistrate, Dibrugarh for conducting post

mortem examination of the dead body of Sri Sourav Bora. Ext- 7 is the

carbon copy of the said letter wherein Ext.-7(1) is the signature of Amal

Das which is identified by this witness.

During cross-examination, this witness has stated that he

has not seen the seized documents in the Court. He also could not say

the names of the witnesses without verifying record. As of now, there is

no record of witnesses and their statements except his oral statement.

This witness admitted that he reached the place of occurrence after

36

about 15 minutes later. The place of occurrence was on the road in front

of New Boy's Hostel. He cannot say exactly what is the distance between

the road and New Boys' Hostel without verifying the record. He cannot

say whether at that time any passer-by was going there.

This witness was recalled by the court and this witness was

asked whether he recoved documents marked ‘A’ ‘B’ ‘C’ during the

search, to which this witness replied that he recorved those documents.

During cross-examination he replied that those documents were not

shown to him in his earlier depositon. Learned CBI counsel apprised this

court that prosecution did not rely on those documents.

(23) P.W. 16, Sri Chandra Kanta Bora, has stated that during

the year 1986 he was posted at CID Department as Inspector and

Dibrugarh P.S. Case No. 398/86 was entrusted to this witness for

investigation on its transfer from Dibrugarh P.S. On being entrusted he

came to Dibrugarh and undertook the investigation. On 7.6.86, he

conducted search in the house premises of Sri Ramesh Duta, S/O Late

Chenira Dutta of Dinjan Chetia Camp, Naliapool, in connection with

this case in presence of the witnesses and recovered one paper

indicating the map of roads and building. It appears to be the

P.O. of the case and seized the same. Ext. 8 is the said seizure memo

and Ext. 9 is the seized paper indicating the roads and buildings. Ext.8(1)

is his signature and Ext. 8(2) is the signature of witness Gaya Prasad

Sharma and Ext. 8(3) is the signature of witness Lal Prasad Upadhyay.

Ext. 8(4) is the signature of Sri Ramesh Chandra Dutta and Ext. 8 is the

Search cum Seizure memo. Thereafter the investigation of the case was

37

transferred from him and he does not know who conducted the case after

transfer.

During cross-examination he has denied the suggestion that

there is no such place like Dinjan Chetia Camp, Naliapool. At that time

there was adjacent house but he did not count the exact number of

houses. He even could not remember whether he took local persons as

witness at the time of searching the house of Ramesh Dutta. He also

denied that the Ext. 9 is prepared in the Dibrugarh Police Station and

they forced Ramesh Dutta to put his signature.

This witness was recalled and question was put as to whether

he recovered document marked ‘D’ to which he replied that he did not

recover that document . prosecution was asked why this document ‘D’ is

in the file to which leanred counsel could not give any answer.

(24) P.W. 17, Dr. N. Sonowal, has stated that in the year’1986

he was posted as Professor and Head of Department, Forensic Medicine,

Assam Medical College & Hospital, Dibrugarh. Dr. M.N. Gogoi, was the

Assistant Professor of the said Department. On 28.5.1986 at 1 A.M. Dr.

M.N. Gogoi conducted post mortem examination on the dead body of

Sourabh Bora S/O Bholaram Bora at Assam Medical College & Hospital,

Dibrugarh, on police requisition. On examination it was found as follows :-

Average built dead body wearing one long pant, white shirt,

ganjee and underpant. Rigor mortis was present in the body. Two holes in

the back portion of part of cloth. One wound of entry in the back of the

body in the right lumber region 3 cm away left to the midline of the body.

Size of the wound 1 cm X 1 cm circular shape and clean cut margin

38

inverted blackening around the wound and abraded colour was present.

Wound was at the level of 11th rib.

Wound of exit :- One wound of exit was present in the right umbilical

reason of the abdominal wall. Size 2 cm X 2 cm with irregular margins

reverted low burning, low blackening. The wound was situated 3 cm

away to the right from the umbilical and at the same level.

Track of the wound was oblique in direction and directed upwards and

forward and down ward both greater and lesser. Omentum punctured by

lacerated margins size 4 cm X 2 cm.

Thorax – Healthy. All other parts were healthy. Both chambers of the

Heart empty and all others are healthy.

Abdomen – Peritoneum cavity contains fluid blood measuring 2 liters.

Stomach contains half digested food materials. Interior surface of right

lobe of liver 6 X 2 cm and haemmorage from liver is present.

Kidney – Left kidney was punctured by the wound of the lacerated margin

size 2 x 2 cms.

Large Intestine :- Ascending colon was lacerated 3 X 2 cm and the

contents were out. Other parts are found healthy.

In the opinion of the doctor, death was due to shock and

hemorrhage that resulted from ante mortem injuries caused by the rifle

fire arm and all the injuries were homicidal in nature. Time since death 6

to 7 hours approximately from the time of examination. Accordingly post

mortem report was prepared.

39

Ext. 10 is the post mortem report and Ext. 10(1) is the signature of

Dr. M.N. Gogoi which this PW identified. This PW concurred the opinion

given by Dr. M.N. Gogoi. Ext.10(2) is his signature concurring the report

given by Dr. M.N. Gogoi.

(25) P.W. 18, Sri Kashmir Singh, Retired DSP, CBI, has stated

that on 21.3.1988, he was posted at CBI SIU II, New Delhi as Inspector of

Police. On 21.3.1988, Sri D.R. Mina S.P. CBI, SIC-I, SIU – II registered FIR

No. RC 5(S)88-SIU-II/SIC-I dated 21.3.88 U/s 302 IPC against unknown

persons on being transferred from Government of Assam, in connection

with Dibrugarh P.S. Case No. 398/86 dated 27.5.86. Ext. 11(two sheets) is

the said FIR. Ext. 11(1) is the signature of Sri D.R. Mina S.P. On

registration the case was endorsed in his name for investigation. In Ext.-

11, FIR, the FIR of Dibrugarh P.S. Case No. 398/86 has been reproduced.

The said FIR was registered on the complaint of Sri Padmeswar Kanwar,

S.I. of Police, Dibrugarh, Dibrugarh P.S. regarding murder of Sourav

Boruah, a student of Dibrugarh University on 27.5.86. Ext. 12 is the

Notification No. 228/227/87-ADV.II of Government of India, Ministry of

Personnel Public Grievances and Pensions Department of Personnel and

Training Dated 22.12.1987 U/s. 5 of DSPE Act extending the power of DSP

to investigate the Dibrugarh P.S. Case No. 398/86 with the consent of

Government of Assam.

Being endorsed he prepared Plan of action, visited Dibrugarh,

recorded statement of witnesses and also collected duplicate C/D file of

CID. Guwahati. Thereafter he was transferred to Patna and the case was

40

re-endorsed to Sri N.C. Jha, the then Deputy Superintendent, CBI, SIC-I,

New Delhi.

This P.W. recorded the statement of Sri Lakshmi Nath Konwar, who

stated to this witness : “I informed the Registrar over telephone about

the incident but he did not visit the place of occurrence. In January 1986,

Executive Committee of the university suspended eight students and

Sourav Bora had led the students in an agitation for the withdrawal of

the decision by the University. He also used to publish pamphlet, posters

etc. criticizing the alleged corruption and other male practices of the

University authorities. Sourav Bora, published a summary of the report of

Jagjit Singh Committee, which was appointed to enquire into the

allegation of corruption against the university authorities especially

against the Registrar. That pamphlet was personally handed over to the

Registrar's PA by Mr. Bora in the formers’ office. In a fare well party for

outgoing students Mr. Sourav Bora had accused the Registrar of corrupt

practices in the latter's presence. Hearing this, Registrar walked out of

the party. Later, it is said that Registrar told Sourav Borah personally that

only one of them is going to survive in the University either Registrar of

Mr. Bora. It is a fact that on 27.1.86 Mr. Sourav Bora was threatened in

the dining Hall of the hostel by Mridul Duta and Ramesh Dutta to stop his

activities, propaganda against the Registrar. In this connection, a

discussion was held among wardens of the hostel and the mater was

brought to the notice of the authorities.

This witness recorded the statement of Sri K.M. Deka, son

of R.K. Deka. It is a fact that he stated to this P.W. that “on 28.5.86, a

41

condolence meeting was held to mourn the death of Sourav Bora. In this

meeting initially Mr. D.H. Goswami, Registrar was there in the front line

along with Vice-Chancellor and this witness but in a short while, he

withdraw to the back ground. Neither did he put any garland or wreth on

the dead body nor said single word of condolence. The Registrar also did

not convene the Court meeting of the University in this connection. From

the next day Mr. Goswami proceeded on leave.”

It is a fact that he further stated to this witness “I have

heard from Sourav Bora and other staff and students that Mr. D.H.

Goswami Challenged Mr. Bora that either he (Registrar) or Mr. Bora would

remain alive in the University. He has also heard about the threate given

by Mridul Dutta and Ramesh Dutta, Sri Sourav Bora , in the Boys' Hostel

Mess.

On the transfer of this witness he handed over the case diary

to Sri L.C. Jha, on 9.9.88, who conducted the further investigation of this

case.

During cross-examination, this witness has stated that he has

not personally recorded the statement of the witnesses. One Mr. Konwar

has recorded the statement. He cannot speak or write in English.

Statement recorded by this witness is in English. This witness denied the

suggestion that he has not examined Lakhinath Konwar and have not

recorded the statement as revealed in C/D. He also denied that he has

recorded the statement of two Kamini Mohan Deka, one from Political

Science and another from Department of Physics. He also recorded the

statement of one Debo Kr. Chetia who was present in the meeting. This

42

witness denied that Debo Kr. Chetia was not present in the farewell party

and he never said that he himself was present.

This witness further denied that he has not recorded the

statement of Lakhi Nath Konwar. Lakhi Nath Konwar stated to this

witness “later, it is said that Registrar told Sourav personally that only

one of them is going to survive in the University, either the Registrar or

Mr. Bora.' This witness denied the suggestion that it means Lakhi Nath

konwar is not personally present in the meeting. At the time of recorded

statement of witnesses by Mr. S. Konwar, he has not signed in the

statement. Mr. S. Konwar has no power to write in the C/D.

(26) P.W. 19, Sri Navin Chandra Jha, Retired S.P., C.B.I. has

stated that during 1988 to 1998 he was working as Deputy S.P. CBI,

Special Investigation Cell, New Delhi. He took charge of investigation of

RC 5/88 SIU II/SIC I New Delhi, for further investigation from Inspector

Kashmir Singh, who was the original I/O of the case. After taking charge

of investigation, he had gone through the previous case diaries and

commenced further investigation after due scrutiny. During the course of

investigation, the seized empty cartridge found at the scene of

occurrence and seized by the local police was sent to CFSL, New Delhi,

for comparison with the suspected arms by the then S.P., CBI, SIC/I New

Delhi. Apart from that the suspected persons of the case were

thoroughly interrogated by this PW at Dibrugarh. He had issued a notice

U/s. 160 Cr.P.C. to suspect D.H. Goswami for his appearance before him

in New Delhi. But Sri Goswami did not respond to his notice U/s 160

43

Cr.P.C. and instead went to Hon'ble High Court, Guwahati, for quashing

notice. For some times under the orders of S.P. , further investigation of

this case was entrusted to DSP, M.D. Singh. Subsequently, he again took

charge of further investigation of the case from Sri M.D. Singh, DSP. Sri

M.D. Singh in course of his investigation examined witnesses and also

seized articles mentioned in his seizure memo dated 13.7.1990 from

serial number 1 to 6 from Jalukbari P.S. Ext. 13 is the said seizure memo

through which M.D. Singh received articles from Jalukbari P.S. Ext. 13(1)

is the signature which this witness identified.

This P.W. collected the CFSL report which was negative.

The weapons forwarded for forensic examination were the weapons

collected from local police. After thorough investigation of the case in

the absence of conclusive evidence a Closer Report was submitted in

the case which is dated 25.6.1990 and he confirmed its contents. Ext. 14

is the final report submitted by him wherein ext- 14(1) is his signature.

Sri M.D. Singh recorded further statement of Sri K.M. Deka,

Professor of Political Science, Dibrugarh University and Prakash Gogoi.

(Under objection) it is a fact that Doctor K.M. Deka stated to M.D.

Singh that a condolence meeting was held to mourn the death of Sourav

Bora. In this meeting initially D.H. Goswami, Registrar was there in the

condolence, but in a short while he withdrew to the back ground. He did

not put any garland on the dead body nor he said a single word in the

meeting. The Registrar also did not convened the court meeting of the

University in this connection. Dr. K.M. Deka further stated to M.D. Singh,

that he has heard from Sourabh Bora and others students that Mr. D.H.

44

Goswamni challenged Mr. Bora that either he or Mr. Bora would remain

alive in the University. He also stated that he had heard about the

threaten given by Mridul Dutta and Ramesh Dutta to Sri Sourabh Bora in

the Boys' Hostel.

It is a fact that P.W. Prakash Gogoi stated to M.D. Singh that Late

Sourabh Bora, told him sometime in April 1986. On the eve of Freshers'

Sociology Department. Sri D.H. Goswami, threatened Sourav Bora for dire

consequences.

During cross-examination this witness has stated that

Kashmir Singh recorded the statement of K.M. Deka on 22.5.1988 and

further statement was recorded by M.D. Singh on 23.11.89 i.e., after

more than one year 4 month. This P.W. do not know what type of

statement was recorded by Sri Kashmir Singh and from whom on

22.5.1988 and who has recorded the second statement of M.D. Singh on

23.11.89. This P.W has seen from his diary that Dr. K.M. Deka , Professor

of Political Science was examined by M.D. Singh. Sri M.D. Singh also

recorded the statement of Sri Prakash Gogoi. This P.W. has not seen

these persons. This witness does not know if Prakash Gogoi stated like

this. This P.W. submitted his final report stating that there is no evidence

to connect the accused persons with this crime and they may be

discharged.

(27) The statement of the accused persons were recorded U/s 313

CrPC. All the accused person denied the allegation and claimed that they

are innocent. No further question was asked after recalling three

witness . However, they decline to adduce any evidence in their favour.

45

APPRECIATION OF EVIDENCE

(28) From the perusal of the entire evidence on record it is found that

there is no eye witness to the fact causing death. The entire fact hinges

upon circumstantial evidence.

NOW LET US SEE WHETHER THE DEATH WAS HOMICIDAL

Deceased died before PW-1 who saw that somebody killed the deceased

by bullet fire PW-2, PW-3 came to know from PW-1. PW-13 deposed that

he made inquest report of the dead body of the deceased, he saw a hole

about 1 ½ inch near the umbilicus. PW- 17 i.e doctor in his testimony

opined that death was due to shock and hemorrhage that resulted from

antemortem injuries caused by the rifle fire arm and all the injuries were

homicidal in nature. Ext-10 is the post mortem report. Actual post

mortem was done by Dr. M.N. Gogoi who expired so he could not be

examined. However, PW-17 concurred with the post mortem report of Dr.

M. N. Gogoi. Diseased died in suspicious circumstanced. Since the injury

was antimortem and the deceased died in a suspicious circumstances,

this court is of the opinion that death of the deceased was a homicidal .

WHO KILLED THE DECEASE ?

(29) PW-1 did not see who killed the deceased. PW-1 desposed that

after Saurav Bora fell down he saw two man at a distance of about 100

meters towards their back who were fleeing away and those two persons

fled away in a bycycle. PW-2 deposed that PW-1 told him that two

persons came and one shot at Saurav Bora and thereafter both of them

fleed away in a bycyle. Pramod Mahanta (PW-1) could not identify the

persons who shot Saurav. Many students gathered on the spot. PW-3

46

deposed that on 27.5.1986, Saurav Bora was shot fom the back side

while he was walking with Pramond Mohanta (PW-1).

PW-5 deposed that before his murder this witness met

him on that day. Both this witnes and Saurav Bora had tea and snacks in

the canteen at about 2 PM. Saurav was shot dead at about 6.15/6.30 PM.

At that time this witness was at his room. This witness came to know that

Sourav was shot dead only after his deadboddy was taken to AMCH. PW-

6 deposed that on the day of curence at around 6.30 PM he was at his

residential quarter in Dibrugarh University Campus which is a distance of

about 50-60 yeads from the place of occurrence. At that time he heard a

sound of burst like bycyle puncture. Around 10 minutes thereafter, a

student came to his quarter and informed him that one border of ‘B’block

hostel namely Saurav Bora was shot dead. He was unable to remember

the name of the said student who informed him.

From the deposition of aforesaid witnesses it is clear that none

of the witnesses have seen the accused persons. PW-1, PW-2, and PW-3

deposed that two person fled away by bicycle, but failed to identify

which two persons fleed away aftering shoting the deceased.

Hence, there is no eye witness as to who killed the deceased.

The entire incident is circumstenttial. Now let us discuss the

circumstances leading to death of Saurav Borah.

(30) From perusal of the testimony of the witnesses it reveals that the

deceased recieived threatening from many corner.

47

THREATENING IN THE DINNING HALL

PW-2 deposed that on the night when Ramesh Duta and Mridul Dutta

came to their Hostel and threatended Saurav Bora, he has having his

dinner alone after the others.

On that day, he was in the adjoining TV Room after having

dinner. He can not recollect whether threre was a room in between the

Dyning Room and T.V. Room.

During his cross-examination this witness deposed that

Sourav Bora told him that Mridul Dutta and Ramesh Dutta threatened

him. He did not personally see the aforesaid two persons threatening

Sourav Bora. He can not collect who else were present when Mridul

Dutta & Ramesh Dutta threatened Surav Bora. So, this witness did not

himself see that the accused Mridul Dutta and Ramesh Dutta threatened

Saurav.

PW-3 deposed that on 27.1.86, Ramesh Dutta and Mridul

Dutta came to the Dining Hall of New Boys' Hostel of D.U. and

threatened Saurav Bora that he should stop his activities. They also

threatened that otherwise he would have to face dire consequences. This

witness was near the Dining Hall.

During cross-examination this witness deposed that when

Ramesh Dutta and Mridul Dutta threatened Saurav Bora, some student

were eating dinner. They also heard the threatening. This PW also heared

both Ramesh Dutta and Mridul Dutta threatening Saurav Bora.

Now if the deposition of PW-2 and PW-3 reading together,

contradiction is found i.e PW-2 stated that Surav was having dinner

48

alone after others. But PW-3 deposed that there were other students

while threatening was given. Now the question is if there other students

prosecution did not examined them. Hence, deposition of PW-2 and PW-3

is contradictory.

Thirdly, PW-3 deposed that there were other students who also heared

threatening. Except this two witness, the another witness PW-6 who

deposed that on 27.1.1986 Mr Bora was threatended in the Dyning Hall of

the Hostel by Mridul Dutta and Ramesh Dutta but this witness is declared

hostile. Had the despotion of PW-2 and PW-3 consistent the deposition

of PW-6 would have been corroborated. Hence, the prosecution failed to

prove the allgation of threatening in the dyning hall beyond reasonable

doubt. Moreover, even if it is taken that threatening is given in the

Duning Hall on 27.1.1986, deceased was killed on 27.5.1986, there is a

gap of about four months . Prosecution totally failed to explain how the

threatening given in the month of 27.1.1986 led to death of the deceased

on 27.5.1986.

(31) THREATENNG IN THE FRESHERS SOCIAL OF SOCIOLOGY

DEPARTMENT :

PW-2 deposed that Sourav Bora was a student of Sociology Department.

He told him that during Freshers’ Social Function in the Sociology

Department, Dibya Hash Goswami was invited. However, when Sourav

Bora gave his speech, he returned to the report of Justice Jagjit Singh

regarding corruption of Dibya Hash Goswami. Shri Dibya Hash Goswami

reacted sharply and in a negative way to the above and Shri Dibya Hash

Goswami threatened Sourav Bora that either D.H. Goswami or Saurav

49

Bora would remain alive in the University. Sourav told this witness

regarding above.

In cross-examination this witnes deposed that he was not

present in the Fresher's Social Function of Sociology Department. Sourav

Bora told him regarding the threatening given to him by Shri Dibya Hash

Goswami in the evening itself . As this witness was not present in the

Freshes Social meet he did not see giving threatening. He heard from

Surav Borah but this witness could not exactly mentioned the time and

place where Saurave told him.

PW-3 deposed that there was a Freshers Social Meet in the

Deptt. of Sociology of which Sourav Bora was a student. In presence of

Dibya Hash Goswami, Saurav Bora publicly exposed him regarding the

findings of corruption arrived at by Justice Jagjit Sihgh. Dibya Hash

Goswami walked out of the meeting and threatened Saurav Bora that

either Saurav Bora or Dibya Hash Goswami will live and Sourav Bora told

this witness regarding this.

In cross-examination this witness also deposed that he was not

present in the Freshers' Social Meet of Sociology Deptt.

As this witness also was not present in the Freshes Social meet he did

not see giving threatening. He heard from Surav Borah but this witness

could not also exactly mentioned time and place where Saurave told him.

So, both PW-2 and PW-3 were not present in the Freshers

Social. Both the witness heared from Saurav.

PW-6, deposed that in a farewell party for outgoing students

Mr Saurav Bora has accused the registerar of corrupt practice, later it is

50

said that Registerar told Mr Bora that either Registerar or Mr Bora will

survive in the university. This witness was declared hostile by the

prosecution. This witness also did not mention exact time, date and

place of giving threat.

PW-8, another witness also deposed that he heard from

Debrata Sharma and Surav Bora about the said threatening. But in cross-

examination he deposed that he does not remember whether he stated

before the CBI that he heard that Registrar Dr. D.H. Goswami threatened

Sourav Bora over the activities of Sourav Bora. He also does not

remember whether he stated before the CBI that Sourab Bora,

Debabrata Sarma told him about the threatening.

PW-9 deposed that there was a fresher welcome function of

Sociology Department. In that function Sourav Bora and D.H. Goswami,

both addressed in the function and heard threatening of Sourav Bora by

D.H. Goswami. On 27.5.1986 Sourav Bora was killed by a gun shot in

front of Boys' Hostel No. 1. There was a gap of one month between

Fresher in Sociology Department and the death of Sourav Bora. During

cross-examination this witness stated that on the day of killing Sourav

Bora this witness was present in the University.

PW-12 was the student of Sociology Department of Dibrugarh

University. He further deposed that he could not remember about the

incident occurred at the Fresher's meet of Sociology Department of

Dibrugarh University but there was some incident. Sourabh Bora told this

witness about some threatening to him. This witness could not remember

51

as to who gave threatening to Sourav Bora. This witness is declared

hostile by the prosecution as he resiled from his earlier statement that -

“Late Sourabh Bora told me sometime in the April 1986 that on the

eve of Fresher's Social of Sociology Department Sri D.H. Goswami

threatened Sourabh Borah for dire consequences.”

During cross-examination he deposed that in the University

Library while this witness asked Sourav Borah as to how his agitation

going on, he replied that he received threats from many corners. This

witness also did not mention time and date when he asked Surav and at

what time. Moreover, Saurav replied him that he received threat from

many corners. Thus, Saurav did not specifically mentined name of any

person.

All the witness deposed that they heared from Saurav

regarding the threat given by the Registrar. None of the witness could

give exact time and date of holding Freshers Social meet and the alleged

threatening. PW-9 guessed one month prior to the death of the

deceased. PW-12(hostile) guessed in the month of April’1986. However,

from the deposition of PW-9 and PW- 12 it can be said that freshers social

meet was held in the month of April’1986 and threatening was given in

the month of april’1986.

The deceased was killed on 27.5.1986. Even date of threatening

is taken in the moth of April’1986, there is a gap of about two months.

Prosecution totally silent how the threatening given in the months of

April’1986 caused the death of the deacesd on 27.5.1986.

52

(32) THREAT FROM OTHER RIVAL GROUPS :

PW-2 deposed that when they were agitating in front of the Main Gate

of the Administrative Block of University, a rival group of students led by

Kosheswar Saikia, Biren Baruah, etc. supported the decision of the

University Authority. This witness further deposed that in his opinion

Saurav Bora was murdered as he raised public opinion regarding

corruption in Dibrugarh University. Sourav Bora, being All India President

of Indian Students' Association (ISA) was against the ideology of AASU,

AGP, etc. and because of the aforesaid political rivalry, he might have

been murdered.

So, from the above deposition it can not be specifically said

threat from which side worked behid the murder of Saurav Bora.

Prosecution has failed to establish that there is conspiracy among this

groups and as a result leading to the death of Saurav.

Moreover, the deceased and his friend did not take the threat

seriously. Saurav himself reported the threat to all the witness but he

did not report it to police or higher authority of the Univrsity. Even

Saurav did not utter a single word regarding the threat on the day of

incident . It is evident from the deposition of PW-1 and PW-5. PW-1

deposed that at about 6 PM, he reached the University Campus and met

his friend Saurav Bora who had come from his hostel room and went to

the canteen to have tea and snacks with the fellow students. After about

15 minutes, Saurav Bora came out of the canteen and both of them went

from the canteen towards his hostel. PW-5 also deposed that he met with

Saurav and both of them had tea and snacks in the canteen at 2 PM.

53

Though PW-2 and PW-3 were close friends of the deceased. Neither the

deceased nor PW-2 and PW-3 went to police station to report the

threatening or to any authority.

(33) From the light of above facts and circumstances, let us discuss

some relevant Judgment of Hon’ble Supreme Court and High Court.

In the case of Sharad Birdhichand Sada –versus- State of

Maharashtra, [1984] 4 SCC 116, the Apex Court discussed the

conditions which must be fully established before conviction can be

based on circumstantial evidence. These are:

1. the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned „must‟ or „should‟ and not „may be‟ established;

2. the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;

3. the circumstances should be of a conclusive nature and tendency;

4. they should exclude every possible hypothesis except the one to be proved; and

5. there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

In Padala Veera Reddy –Vs- State of Andhra Pradesh [1989] Supp

(2) SCC 706, the Apex Court again held that when a case rests upon

circumstantial evidence, the following tests must be satisfied:

1. the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;

2. those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;

54

3. the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and

4. the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.

The same view has been expressed in Bhagwan Singh Vs. State of Haryana. AIR 1976 SC 917 ( Para 15 ) and Rumi Bora Dutta Vs. State of Assam, 2013 GLT (5) 427 (Para-12 and 13). Kusuma Ankama Rao –Vs- State of A.P. , AIR 2008 SC 2819,

In the instant case conditions laid down in the above

noted case has not been fulfilled. Circunstances leading to death not fully

established. Chain is also not complete. Prosecution failed to link up the

threatening given on 27.1.1986 with the death on 27.5.1986. Prosecution

also failed to link up the date/time of threat of Freshers Social with the

date/ time of death of the deceased. Hence, the eprosecution failed to

prove the charge U/s 302 IPC beyond reasonable doubt.

(34) WHETHER CRIMINAL CONSPIRACY IS PROVED ?

In P.K. NARAYANAN - VS- STATE OF KERALA, (1995)1SCC142

Hon’ble Supreme Court regarding prove of conspricy stated as follows:

‘9. The ingredients of this offence are that there should be an agreement between the persons who are alleged to conspire and the said agreement should be for doing of an illegal act or for doing by illegal means an act which by itself may not be illegal. therefore the essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct evidence or by circumstantial evidence or by both and it is a matter of common experience that direct evidence to prove conspiracy is rarely available. therefore the circumstances proved before, during and after the occurrence have to be considered to decide about the complicity of the accused. But if those circumstances are compatible also with the innocence of the accused persons then it can not be held that the prosecution has successfully established its case. Even if some acts are proved to have been committed it must be

55

clear that they were so committed in pursuance of an agreement made between the accused who were parties to the alleged conspiracy. Inferences from such proved circumstances regarding the guilt may be drawn only when such circumstances are incapable of any other reasonable explanation. From the above discussion it can be seen that some of the circumstances relied upon by the prosecution are not established by cogent and reliable evidence. Even otherwise it can not be said that those circumstances are incapable of any other reasonable interpretation.”

(Also Sudhir Shantilal Mehtavs.Respondent: C.B.I (2009) 8 SCC 1; R.Venkatakrishnan Vs. Central Bureau of Investigation (2009)11 SCC 737)

From the combind reading of the above judgements it is evident that

agreement between two or more person and/or meeting of mind is

necessary. As conspiracy is a distinct offence, the prosecution has to

prove the ageemnt/ meeting of the mind by the accused person(s)

beyond reasonable doubt. In the instant case, though charge was framed

U/s 120(B) against the accused persons, prosecution failed to prove that

there was agreement between accused persons, or the there was

meeting of mind among the accused persons and the accused persons

conspired againt the deceased . The prosection has failed to prove any

of the ingriedients of section 120(B) IPC against the accused persons.

Hence, the charge U/s 120(B) IPC failed .

(35) Coming to Section 506 IPC, this court find that thogh the CBI

counsel vehemently argued that the accused has threatehed the

deceased which has been proved by the testimony of prosecution

wtinesses. All the witnesses in their testimony stated that they heared

from the deceased himself that deceased received thretening from many

sides.

Before coming to the conclusion let us examine the legal provision and the decided case laws on this points. In Manik Taneja –Vs State of Karnataka 2015(1) SCALE 484 Hon’ble Supreme Court had occasion to discuss the scope of section 503 and 506 IPC. The relevant paragraph is reproduced below:

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‘13. Section 506 Indian Penal Code prescribes punishment for the offence of criminal intimidation. "Criminal intimidation" as defined in Section 503 Indian Penal Code is as under:

503. Criminal Intimidation.- Whoever threatens an-other with any injury to his person, reputation or property, or to the person or reputation of any one in whom that per-son is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execu-tion of such threat, commits criminal intimidation.

Explanation.- A threat to injure the reputation of any deceased person in whom the person threatened is inter-ested, is within this section.

14. A reading of the definition of "Criminal intimidation" would indicate that there must be an act of threatening to another-person, of causing an injury to the person, reputation, or prop-erty of the person threatened, or to the person in whom the threatened person is interested and the threat must be with the intent to cause alarm to the person threatened or it must be to do any act which he is not legally bound to do or omit to do an act which he is legally entitled to do.

15. In the instant case, the allegation is that the Appellants have abused the complainant and obstructed the second Re-spondent from discharging his public duties and spoiled the in-tegrity of the second Respondent. It is the intention of the ac-cused that has to be considered in deciding as to whether what he has stated comes within the meaning of "Criminal intimi-dation". The threat must be with intention to cause alarm to the complainant to cause that person to do or omit to do any work. Mere expression of any words without any intention to cause alarm would not be sufficient to bring in the application of this section. But material has to be placed on record to show that the intention is to cause alarm to the complainant. From the facts and circumstances of the case, it appears that there was no intention on the part of the Appellants to cause alarm in the minds of the second Respondent causing obstruction in discharge of his duty. As far as the comments posted on the Facebook are concerned, it appears that it is a public forum meant for helping the public and the act of Appellants posting a comment on the Facebook may not attract ingredients of criminal intimidation in Section 503 Indian Penal Code.’

In the case in hand, theat in the dinning hall and the threat in the frsh-

ers social, whether given with intention to cause alarm to the deceased

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or to omit from such activit is not proved. In fact, the deceased did not

care any of the threat.

In D. Vijay Kumar and etc -Vs- State of A.P. 2010 CriLJ 968 quoting the decisions of Hon’ble Supreme Court, A.P High court has came to the conclusion as follows:

31. The Hon'ble Supreme Court in Bhairon Singh v. State of Madhya Pradesh MANU/SC/0908/2009 : 2009 Cri LJ 3738 referred the judg-ment in Sharad Birdhichand Sarda v. State of Maharashtra MANU/SC/0111/1984 : (1984) 4 SCC 116 : 1984 Cri LJ 1738, wherein the Supreme Court held as follows:

(1) Section 32 is an exception to the rule of hearsay and makes admissible the statement of a person who dies, whether the death is a homicide or a suicide, provided the statement relates to the cause of death, or exhibits circumstances leading to the death. In this respect, as indicated above, the Indian Evidence Act, in view of the peculiar conditions of our society and the di-verse nature and character of our people, has thought it neces-sary to widen the sphere of Section 32 to avoid injustice. (2) The test of proximity cannot be too literally construed and practically reduced to a cut-and-dried formula of universal application so as to be confined in a strait-jacket. Distance of time would depend or vary with the circumstances of each case. For instance, where death is a logical culmination of a continuous drama long in process and is, as it were, a finale of the story, the statement regarding each step directly connected with the end of the drama would be admissible because the entire statement would have to be read as an organic whole and not torn from the con-text. Sometimes statements relevant to or furnishing an imme-diate motive may also be admissible as being a part of the transaction of death. It is manifest that all these statements come to light only after the death of the deceased who speaks from death. For instance, where the death takes place within a very short time of the marriage or the distance of time is not spread over more than 3-4 months the statement may be ad-missible under Section 32. (3) The second part of Clause (1) of Section 32 is yet another exception to the rule that in criminal law the evidence of a person who was not being subjected to or given an opportunity of being cross-examined by the accused, would be valueless because the place of cross-examination is taken by the solemnity and sanctity of oath for the simple rea-son that a person on the verge of death is not likely to make a false statement unless there is strong evidence to show that the statement was secured either by prompting or tutoring. (4) It may be important to note that Section 32 does not speak of homicide alone but includes suicide also, hence all the circum-

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stances which may be relevant to prove a case of homicide would be equally relevant to prove a case of suicide. (5) Where the main evidence consists of statements and letters written by the deceased which are directly connected with or related to her death and which reveal a tell-tale story, the said statement would clearly fall within the four corners of Section 32 and, therefore, admissible. The distance of time alone in such cases would not make the statement irrelevant.

The Supreme Court also observed that A. Vardadarajan, J., on the other hand, referred to the legal position stated by Woodroffe and Amir Ali in their Law of Evidence (fourteenth edi-tion) and Ratanlal Dhirajlal in their Law of Evidence, and dealt with the admissibility of evidence under Section 32(1), which is as follows:

Circumstances of the transaction resulting in his death: This clause refers to two kinds of statements : (i) when the statement is made by a person as to the cause of his death, or (ii) when the statement is made by a person as to any of the circumstances of the transaction which resulted in his death. The words 'resulted in his death' do not mean 'caused his death'. The expression 'any of the circum-stances of the transaction which resulted in his death' is wider in scope than the expression 'the cause of his death'. The declarant need not actually have been apprehending death. MANU/MP/0010/1964 : (AIR 1964 MP 30) Page 947 : The expression 'circumstances of the transaction' occurring in Section 32, Clause (1) has been a source of perplexity to Courts faced with the question as to what matters are ad-missible within the meaning of the expression. The decision of their Lordships of the Privy Council in Pakala Narayana Swami v. Emperor MANU/PR/0001/1939 : AIR 1939 PC 47 sets the limits of the matters that could legitimately be brought within the purview of that expression. Lord Atkin, who delivered the judgment of the Board, has, however, made it abundantly clear that, except in special circum-stances no circumstance could be a circumstance of the transaction if it is not confined to either the time actually occupied by the transaction resulting in death or the scene in which the actual transaction resulting in death took place. The special circumstance permitted to transgress the time factor is, for example, a case of prolonged poisoning, while the special circumstance permitted to transgress the distance factor is for example, a case of decoying with in-tent to murder.... But the circumstances must be circum-stances of the transaction and they must have some proxi-mate relation to the actual occurrence.’

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Section 506 Part II denotes the cause of death and not resulted in his death.

(36) In the same judgment it has been categorically stated that threatening given six months prior to the death of the decesed is not addmissible U/s 32(1) of the Evidence Act,1872. Relevant paragraphs are reproduced below :

“42. In this case, the other evidence available on record against A3 is the statement of the father of the deceased. He has categor-ically stated that A-3 threatened her daughter on 24-12-1999 and also in January, 2000 and that her daughter informed him the above facts.

43. However, the main distinction between the case of A1 and A3 is that the acts committed by A1 appear to be relating to the cause of her death and the circumstances in the transactions leading to her death. Therefore, they are admissible under Sec-tion 32 of the Indian Evidence Act. But, as far as A-3 is concerned, the charge against him is that he committed an offence under Section 506, IPC. Section 506, IPC appears to be a distinct of-fence. Therefore, the oral or written statements of the deceased appear to be not admissible in evidence and have to be treated as hearsay evidence as far as the offence punishable under Section 506, IPC is concerned. The other circumstance in favour of A3 is that the deceased did not mention the name of A3 in her suicide note prepared just prior to her death. She did not reveal the name of A3 to her mother just prior to her death though she revealed the names of A1 and A2 to her mother. Therefore, the statements said to have been made against A3 six months prior to her death with regard to the offence under Section 506 , IPC cannot be treated as admissible under Section 32(1) of the Indian Evidence Act. In Crl. P. Nos. 2216 and 2226 of 2002, dated 13-10-2004 filed by A-3 and A-1 respectively before this Court to quash the pro-ceedings against them, this Court observed as follows:

The material gathered during the investigation reveals that A1 cast an eye not only on her person but also on her properties. The investigation further discloses, prima facie, that A1 has been haunting the deceased either through phone calls or otherwise. These persistent phone calls can, prima facie, be characterized as instigation within the meaning of Section 107, IPC. So far as A-3 is concerned, his name does not appear in the suicidal note of the deceased. Therefore, it cannot be said that his in-termittent threatening calls much earlier to her suicide cannot be constituted as instigation within the meaning of Section 107, IPC and at the most they may constitute

60

a criminal intimidation punishable under Section 506, IPC.

10. In view of the above discussion, I find that continuance of criminal proceedings against A3 for the offence under Section 306, IPC amounts to abuse of the process of Court and therefore the proceedings against him for the offence relatable to Section 306, IPC are liable to be quashed. However, prosecution of A3 for the offence under Section 506, IPC can be continued. With regard to A1, I find that there are no justifiable grounds to quash the criminal proceedings against him, at this stage. Accordingly, Crim-inal Petition No. 2216 of 2002 is partly allowed quashing the pros-ecution of the petitioner-A3 for the offence under Section 306, IPC in P.R.C. No. 2 of 2002 on the file of the IX Metropolitan Magis-trate, Hyderabad. However, the prosecution of the petitioner-A3 for the offence relatable to Section 506, IPC can be continued.

44. When this Court had already held in Crl. M.P. No. 2216 and 2226 of 2002 that continuation of proceedings against A3 for the offence under Section 306, IPC would amount to abuse of process, it would be difficult to say that the statements of the deceased made about six months ago i.e., on 24-12-1999 or in January, 2000 could be treated as admissible under Section 32(1) of the Evidence Act with regard to the offence under Section 506 , IPC.”

(37) In the instant case threatening came from many sides such as

Dining Hall, Freshers Social, Administration Building Gate, From AASU,

AGP etc but none of the threates proved beyond reasonable doubt.

Morover, The deceased was threatened on 27.1.1986 in the Dinning Hall

and the deceased was committed murder on 27.5.1986. There is a gap of

four months. But the prosecution has failed to prove how this threatening

given on 27th January’1986 caused death on 27.5.1986. Threatening in

the Freshers Social Meet does not caused alarm to the deceased as

requird u/s 503 IPC. Thretening in Freshers Social though stated as one

month i.e April prior to the date of incident, even, then can not be linked

up with the incident of killing of the deceased. Hence, the accused

persons can not be fastened in any of the offences charged against them.

(38) In the case of State of Tripura –vs- Sri Dulal Dey, reported in

(2008) 1 GLR 637, it has been held by the Hon’ble Gauhati High Court

in Para 27 of its judgment as follows:

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“ In a criminal case mere suspicion is not enough to convict

an accused, as the degree of proof required is strict than

the civil proceedings. By this time it is also settled that the

criminal trial is meant for doing justice to the accused, the

victim and the society, so that the law and order is

maintained. Court should not search the evidence of the

prosecution witnesses only to punish the accused person

for the charges levelled against him. It is also the duty of

the court to find out whether the accused is really involved

and/or connected with the offence for which charge is

levelled against him. As the duty of the court is to see that

no innocent person should be punished as well as no guilty

person should be escaped without punishment. The first

one is as important as the latter one. Both are important for

the court while performing its duties either under the

Constitution or under any law”.

(39). Considering the entire evidence on record, I hold that prosecution

has failed to prove the ingredients of offence charged U/s 302/120(B)/506

IPC. As such, all the accused persons are acquitted on benefit of doubt

from the charges U/s 302/120(B)/506 IPC and set them at liberty forth-

with.

(40). Bail bonds executed by the accused persons and with the surety

are extended for next six months as per provision of Section 437(A) of

Cr.P.C

(41). Send a copy of this judgment to Learned. District Magistrate Di-

brugarh as per the provisions of section 365 Cr.P.C.

(42). This Judgment is delivered in the open court.

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Given under my hand and seal of this Court on this the 22nd day

of April, 2015.

(A.B.Siddique) Addl. Sessions Judge,

Dibrugarh Dictated and corrected

Addl. Sessions Judge, Dibrugarh

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APPENDIXProsecution witnesses. P.W. 1 – Sri Pramod Ch. Mahanta.P.W. 2 – Sri Amar Jyoti Gogoi. P.W. 3 – Sri Deba Brata Sarma.P.W. 4 – Sri Babu Singh.P.W. 5 – Sri Loken Ch. Saikia.P.W. 6 – Sri Lakhminath Konwar.P.W. 7 – Sri Anup Gogoi.P.W. 8 – Sri Debo Kumar Chutia.P.W. 9 – Smti. Nandita Pegu. P.W. 10 – Sri Kamini Mohan Deka.P.W. 11 – Sri Aasish Saikia.P.W. 12- Sri Prakash Gogoi. P.W. 13 – Sri Khalilur Rahman.P.W. 14 - Sri Ranjan Chakraborty. P.W. 15 – Sri Padmeswar Konwar. P.W. 16 – Sri Chandra Kanta Bora.P.W. 17 – Dr. N. Sonowal.P.W. 18 – Sri Kashmir Singh. P.W. 19 – Sri Navin Chandra Jha. Exhibits :-Ext.1 – Extract copy of G.D. Entry.Ext. 2- Inquest report.Ext. 3 – Dead body challan.Ext.4 – Forwarding report.Ext. 5 – Seizure list. Ext. 6 – Search/ Seiqure list.Ext. 7 Post Mortem requisitionExt. 8 – Seizure listExt. 9 – Sketch Map.Ext. 10 – Post mortem report.Ext 11 – FIR. Ext. 12 – Notification of Government of India,

extending the jurisdiction of members of Delhi Special Police Establishment to whole State of Assam.

Ext. 13 – Receipt Memo.Ext. 14 – Final Report.Other Document A, B, C, D

(A.B.Siddique) Addl. Sessions Judge,

Dibrugarh.

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Sessions Case No. 132/2009.

ORDER

22.04.2015

All the accused persons are present.

Judgement is delivered in the Open Court.

Judgement is written in separate sheets and is kept with the

record as a part of the proceeding.

In the instant case threatening came from many sides such as

Dining Hall, Freshers Social, Administration Building Gate,

From AASU, AGP etc but none of the threates proved beyond

reasonable doubt. Morover, The deceased was threatened on

27.1.1986 in the Dinning Hall and the deceased was

committed murder on 27.5.1986. There is a gap of four

months. But the prosecution has failed to prove how this

threatening given on 27th January’1986 caused death on

27.5.1986. Threatening in the Freshers Social Meet does not

caused alarm to the deceased as requird u/s 503 IPC.

Thretening in Freshers Social though stated as one month i.e

April prior to the date of incident, even, then can not be linked

up with the incident of killing of the deceased. Hence, the

accused persons can not be fastened in any of the offences

charged against them.

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Considering the entire evidence on record, I hold that prose-

cution has failed to prove the ingredients of offence charged

U/s 302/120(B)/506 IPC. As such, all the accused persons are

acquitted on benefit of doubt from the charges U/s

302/120(B)/506 IPC and set them at liberty forthwith.

Bail bonds executed by the accused persons and with the

surety are extended for next six months as per provision of

Section 437(A) of Cr.P.C

Send a copy of this judgment to Learned District Magistrate

Dibrugarh as per the provisions of section 365 Cr.P.C.

Addl Sessions Judge, Dibrugarh