Crl.A. 279/2002 BEFORE THE HON’BLE MR JUSTICE D. BISWAS, CHIEF JUSTICE (ACTING) THE HON’BLE MR. JUSTICE HRISHIKESH ROY IN THE GAUHATI HIGH COURT (The High Court of Assam, Nagaland, Meghalaya, Manipur, Tripura, Mizoram and Aru nachal Pradesh ) CRIMINAL APPEAL NO.279(J) OF 2002 Shri Sunil Nag @ Solin Nag & & & APPELLANT -Versus- The State of Assam & & &RESPONDENT P R E S E N T HON’BLE MR. JUSTICE D. BISWAS, CHIEF JUSTICE (ACTING) THE HON’BLE MR. JUSTICE HRISHIKESH ROY For the Appellant : Mr. J. Handique Amicus Curiae. For the respondent : Mr. B. Singha, Public Prosecutor, Assam . Date of hearing : 18.01.2007 Date of Judgment and : 18.01.2007 Order JUDGMENT AND ORDER (Oral) By D. Biswas, CJ(Actg.) This appeal is directed against the judgment dated 3.6.2002 pass ed by the learned Sessions Judge, Tinsukia in Sessions Case No.179(N)/2000. By t he impugned judgment, the leaned Sessions Judge, on conclusion of trial in the a foresaid sessions’ case, convicted the appellant Sunil Nag @ Solin Nag under Sec tion 302 I.P.C. for causing death of Sapira Nag on 23rd May, 1998. On such convi ction, the accused appellant has been sentenced to imprisonment for life and to pay a fine of Rs.1000/-, in default, to suffer further imprisonment for three mo nths. 2. In this case, a first information report filed by Shri Gupa Nag to the effect that the accused along with Aibu Nag and Ruben Kumar entered the c ourtyard and assaulted his wife Sapira Nag on the neck with a sharp weapon causi ng grievous injury. The injured was immediately taken to the hospital where she was declared dead. The police registered Margherita P.S. Case No.75 of 1998 unde r Section 302/34 I.P.C., took up investigation and, in due course, submitted cha rge sheet against all the three accused persons. The learned Sessions Judge, on receipt of the case on commitment, framed charge against the appellant Sunil Nag under Section 302 I.P.C. The charge was read over and explained to the accused to which he pleaded not guilty and claimed to be tried. Thereafter, the learned Sessions Judge proceeded with the trial, recorded the evidence of 7 PWs includin g the doctor and the police officer, and on conclusion of the trial, giving a gu ilty verdict and sentencing the appellant as stated above. 3. P.W. 6, Dr. R. Chaliha, performed the postmortem on the dead bod y of the deceased on being identified by Const. No.179 Siddhewar Gogoi and P.W. 1 Gopa Nag, husband of the deceased. The doctor found the following injuries on the person of the deceased :- Injuries : 1. An incised wound over the upper part of the neck directed from le ft to right measuring 9 X 4 CM and cutting skin, soft tissuses, vessels, muscles , nerves and the third cervical vertebrae. . 4. In the opinion of the doctor, the death was caused due to shock and haemorrhage as a result of injuries on the neck. The injuries were anti-mort em in nature and caused by heavy sharp cutting weapon and were homicidal in natu re. According to the medical officer, the injuries caused were sufficient to cau se death of a person in the ordinary course of nature. P.W. 6 also proved the po stmortem report (Ext.3) and Ext.3(1) is his signature. In his cross-examination, P.W. 6 stated that heavy sharp cutting weapon includes dao and sword. The evide nce of P.W. 6 read with the inquest report (Ext.1) prove the prosecution allegat ion that Sapira Nag succumbed to her injuries caused on her neck. 5. About the culpability of the appellant in relation to the allege d crime, we may refer to the evidence on record. 6. P.W. 1 Gupa Nag is the husband of the deceased. P.W.2 Smti Joymo ni Nag is the sister of P.W. 1. Both of them claimed to have seen the occurrence . P.W. 3 Shri Trinath Tanti is an independent person. He is a reported witness. He is also a signatory to the inquest report Ext.1 and Ext. 1(1) is his signatur e. P.W. 4, Shri Indra Chetri is a neighbour. He is also a reported witness. P.W. 5 Shri Nagina Sona is the brother of the deceased. He has not seen the occurren ce. He saw some persons carrying the dead body of his sister and on enquiry came to know that she was killed by Sunil Nag. Of all these witnesses, P.Ws. 1 and 2 appear to be the most important witnesses examined by the prosecution in suppor t of the charge. It would, therefore, be apposite to refer their evidence in det ails. 7. P.W. 1 Shri Gupa Nag, husband of the deceased, stated that on th e day of occurrence he returned from duty at around 3 P.M. He was sitting with h is wife. His sister was also present in the house and the children were not in t he house. At that time, the appellant Sunil Nag caught hold of his son Vikram Na g outside his house. His wife seeing the same went out. Immediately thereafter, the accused dealt a ’dao’ blow on her neck and fled away. His wife suffered seve re cut injuries. She was taken to the hospital where she died. Accordingly, poli ce was informed. The police came to the place of occurrence, held inquest over t he dead body and shifted the dead body for postmortem examination. The witness f urther stated that while running away the accused had left the ’dao’. 8. P.W. 1 has been subjected to cross-examination. But nothing sign ificant could be brought out by the defence to demolish his credibility. The wit ness stated that he was not aware as to why the appellant had caught hold of his son Vikram. He did not make this statement to the investigating officer. He cou ld not remember the size of the dao. He maintained that a single dao blow was gi ven by the accused. He further stated that his elder sister was present in the v eranda at the time of occurrence. From the statement made in the cross-examinati on, we find that he has no enmity with the accused and that he did not go to the police station to lodge the F.I.R. 9. Keeping in mind the evidence of P.W. 1, we may refer to the evid ence of P.W. 2 Smti Joymoni Nag, sister of P.W. 1, who stated that she has been living with P.W.1 who is her brother P.W. 1 at the time of occurrence. She along with her brother and the deceased were present in the house. Her brother and th e deceased were sitting outside and she was inside the house. On hearing cries o utside, she came out and saw the accused dealing a dao blow on Sapira Nag and r unning away. She further stated that Sapira Nag suffered injuries on her neck. I n her cross-examination, she stated that she did not see Vikram at the time of o ccurrence. But she maintained that after hearing the cries she came out and saw her sister lying in the drain and none was by her side. She further stated that she had not seen the weapon of assault. She was reported by her brother (P.W.1) that Sapira Nag was given a dao blow. She denied that that the accused was not i nvolved with the alleged crime. 10. The evidence of P.W. 1 and 2 read together prove the fact that P .Ws. 1 and 2 and the deceased were in the house at the time of occurrence. The e vidence of P.W. 1 clearly show that while sitting in the verandah with his wife, they saw their son being nabbed by the appellant. His wife went out and was ass aulted by the accused with a ’dao’ on her neck. The evidence that P.W. 1 had see n his wife being assaulted by the accused stands unrebutted. P.W. 2 in her exami nation-in-chief specifically stated that she came out hearing the cries and saw the accused giving dao blow on Sapira Nag. But deviated in her cross-examination by saying that after hearing the cries she came out and she saw her sister-in-l aw lying in the drain. Even if we do not put any reliance on her evidence as to the fact that she has seen the actual act of assault, her statement made during the course of cross-examination clearly show that immediately after the occurren ce, she came out and saw her sister-in-law in an injured condition and was repor ted by P.W. 1 that accused had assaulted her sister-in-law. 11. The evidence of P.Ws 1 and 2 read together lead to the irrefutab le conclusion that it is the appellant who had assaulted the deceased near the c ourtyard of the house of P.W. 1 on an issue relating to her son Vikram. 12. Mr. J. Handique, learned Amicus Curiae submitted that P.W. 1 emp hatically insisted that the appellant has used a dao in assaulting Sapira Nag, w hereas before the Investigating Officer, P.W. 1 stated that his wife was killed by means of a pointed weapon. 13. This contradiction in our opinion can be explained with referenc e to the evidence of P.W. 6 Dr. R. Chaliha, who during his cross-examination, st ated that heavy sharp cutting weapon includes dao as well as sword. As is genera lly understood, a sword is a heavy sharp cutting weapon though its’ edge pointed . That apart, from the seizure list (Ext.2), we find that the weapon seized was one Scimitar, 16 inches long with a wooden handle. The handle is 4 inches long w hile the sharp edged iron portion is 12 inches long. The scimitar is slightly be nt at the tip. The tip is pointed. The portion towards the handle is slightly th inner than the front portion. There is a knot towards the lower part of the hand le. The nature of weapon seized from the place of occurrence by the police soon after they reached the place of occurrence explains the apparent inconsistency i n the evidence of P.W. 1 pointed out by the learned Amicus Curiae. 14. The next defence advanced by Mr. Handique is that P.W. 1 was bli nd and, therefore, his evidence cannot be relied upon for the purpose of convict ion. This argument has been advanced obviously from the statements made by the a ccused in answer to Question No.8 during his course of examination under Section 313 Cr.P.C. But, there is nothing on record to show that P.W. 1 was blind. No e vidence has been adduced to show that P.W. 3 was blind and it was not possible f or him to see the occurrence. That apart, from the evidence on record, particula rly, the evidence of P.W. 1, we find that P.W. 1 had not only seen the occurrenc e but had also shifted his wife to hospital and took all follow-up actions as we re necessary. Therefore, this stray statement by the accused during the course o f examination under Section 313 Cr.P.C. is not of material consequence. 15. The last leg of argument of Shri Handique is that no independent witness has been examined in this case. The learned Amicus Curiae laid emphasis on the failure of the prosecution to examine Vikram, son of P.W. 1. 16. We have considered this submission with due importance. Non-exam ination of independent witness are not always fatal. It depends on the fact situ ation of each and every case. In the instant case, there are only two witnesses i.e. P.Ws. 1 and 2 who could bring home the charge framed against the appellant. Therefore, non-examination of other persons who were present at the place of oc currence and who had not seen the occurrence, cannot be a ground for adverse pre sumption against the prosecution. 17. After due consideration of the evidence on record, particularly that of PWs 1 and 2, and the medical officer (P.W.6), we are of the opinion that the prosecution has succeeded in proving the charge brought against the appella nt for causing death of Sapira Nag. We, therefore, find no scope to interfere wi th the judgment under appeal. 18. Consequently, the appeal is dismissed. 19. Mr. J. Handique, learned Amicus Curiae be paid a sum of Rs.3000/ - as remuneration for rendering assistance to the Court.