Crl.A. 104/2004 BEFORE HON’BLE MR. JUSTICE AMITAVA ROY AND THE HON’BLE MR. JUSTICE H. BARUAH The subject matter of scrutiny in the instant appeal is the judgment and order d ated 03.03.2004 passed by the Addl. District & Sessions Judge, Dibrugarh in Sess ions Case No.35/2001 convicting the appellant-accused U/s.302 of the Indian Pena l Code (hereinafter for short referred to as the Code) and sentencing him to imp risonment for life. 01. We have heard Mr. J.M. Choudhury, Senior Advocate for the appell ant-accused and Mr. Z. Kamar, learned Public Prosecutor, Assam. 02. The aforementioned sessions case corresponds to the Borboruah P. S. Case No.86/99 U/s. 302 of the Code having been registered on a F.I.R. dated 0 6.10.99 lodged by one Shri Mansing Chowhan with the Officer-in-Charge of the sai d police Station alleging that in the evening of 05.10.99 at about 6.30 P.M. the appellant-accused, a resident of village Moumari had assaulted his (informant’s ) father Banshidhar Chawhan with a dao on his head. The F.I.R. further disclose d that though the injured was removed to the hospital in the Jamira Tea Estate b y one Shri Romesh Chauhan, the former succumbed to his injuries at about 9.30 P. M. Following the investigation in the above case, the police submitted charge-s heet against the appellant-accused also under the same provision of the Code. L ater, the learned trial court framed charge against the appellant-accused U/s.30 2 of the Code. He denied the same and trial followed. The prosecution examined 8 (Eight) witnesses including the doctor who had performed the autopsy, as well as the investigating officer. The statement of the appellant-accused U/s.313 Cr .P.C. was recorded. He adduced 4(Four) witnesses in defence including himself. On the completion of the trial he was convicted and sentenced as above. Befor e the competing arguments are adverted to, it would be apt to refer, in brief, t o the evidence on record. 03. PW-2 Sri Man Singh is the informant. On the date of the occurre nce, according to this witness, he was reported by his brother Joy Singh about t he incident. On coming home, he came to learn that the appellant-accused-accuse d had assaulted his father. They then, took him to the Zamira Hospital, where h e died shortly thereafter. He proved the F.I.R., Ext-2 with signature thereon Ex t-2(1). In cross-examination he admitted that his father at the hospital was no t in a position to speak. He apparently is not an eyewitness to the incident. 04. PW-3 Smt. Sarnalata Chouhan is sister-in-law of the deceased. S he deposed on oath that their families resided adjacently. According to her, on the date of the occurrence, at about 6 P.M. while she was at home with her daug hter Chama, the appellant-accused who is her nephew stopped the bicycle in which he was coming at the gateway of the deceased and started abusing him. As the a ppellant-accused sought to enter the gate he was confronted with the dogs of the deceased whereupon he (appellant-accused) shifted himself to the gate of the wi tness and started abusing the deceased from there. On this, the witness enquire d about the reason for his conduct for which the former pushed her aside. At tha t point of time the deceased having coming there also to enquire as to the reaso n for the abuse, the appellant-accused dealt a blow on the back of his head with a dao and after throwing the bicycle on his body left the place. The witness s tated that thereafter, her son Romesh and husband Radheshyam lifted the injured to their house and later shifted him to the hospital where he died. 05. In her cross-examination, she stated that the appellant-accused has a fish pond near the house of the deceased and that a few fish therein had d ied of some disease. She expressed her ignorance about the appellant-accused ch arging the deceased for killing the fish by administering poison. She also expr essed her unawareness about any quarrel taking place between them on this issue. She admitted that it was dark at the time of the occurrence. She denied the s uggestion that it was the deceased who sought to assault the appellant-accused w ith a dao for which the latter sustained injuries in his hand and that when the assault was repeated, a scuffle resulted and at that point of time the witness h ad departed from the place. She, however disclosed about the blood stains at the place of occurrence. She denied the suggestion that the confrontation had take n place by the side of a pool near her house. 06. PW-4 Smt. Champa Chouhan stated that the deceased was her patern al uncle and the appellant-accused was her cousin through her maternal uncle. S he stated that on the date and time of the occurrence, the appellant-accused was coming from Chalkhown on bicycle and wanted to enter the house of the deceased but could not do so due to the presence of his dogs. As a result, the appellant -accused started abusing the deceased from the front of her house. The witness stated that when her mother wanted to ascertain the reason for his anger, she wa s also by her side. Then the deceased turned up and having enquired of the appel lant-accused of the same, he pushed aside the mother of the witness and dealt cu t blows on the deceased with a dao. The appellant-accused, then, according to h er, threw the bicycle on the injured and left the place. The witness stated tha t being injured Banshidhar collapsed and could not speak. On hearing the cries, the father of the witness came to the place of occurrence and the injured was t aken to the hospital where he expired. 07. In cross-examination the witness stated that she was not aware o f any quarrel between the appellant-accused and the deceased over the issue of d ead fish. She also denied the suggestion that there was a hue and cry over the same due to poisoning of the pond of the appellant-accused. She also denied the suggestion that a quarrel in connection therewith had taken place near the said pool and that on the date of the occurrence, the deceased had waylaid the appel lant-accused with a dao. She also denied the suggestion that when the appellant -accused rushed the pool, the deceased wanted to assault him and after the appel lant-accused could somehow obstruct the first blow, a scuffle followed and then the witness and her mother left the place. She, further clarified that at that time no outsider was present there. 08. PW-5 Shri Radheshyam Chouhan, the brother of the deceased is a r eported witness, who on getting the information of the incident came to the plac e of occurrence as cited by the prosecution and found the injured lying thereat with a bicycle over his body. He confirmed of the arrival of Romesh there and t he removal of the injured to the hospital. The witness, however stated that he h ad not accompanied the injured thereto. He proved the seizure of the bicycle an d the chappals vide Ext-3 on which he proved his signature Ext-3 (1). In cross-e xamination, this witness admitted that he was not an eyewitness. He inter-alia denied the suggestion that the deceased had earlier intimidated the appellant-ac cused over the dispute of dead fish. 09. PW-6 Shri Joy Singh, son of the deceased is also not an eyewitne ss, but proved Ext-3 the seizure list with his signature thereon as Ext-3(2). 10. PW-7 Shri Ramesh Chouhan stated that on the date and time of occ urrence he having heard of some commotion from the direction of the embankment, he proceeded to that place alongwith Utpal and Pranjal and saw the appellant-acc used running past them with a dao in hand. At the place of occurrence, they fou nd the deceased lying in an injured condition. According to this witness, his m other and others told him that the appellant-accused had assaulted the deceased. In cross-examination he admitted of not having seen the incident. 11. PW-8 Shri Pradip Kr. Bora is the investigating officer. He reci ted the steps taken by him in connection with the investigation of the case and amongst others, mentioned about F.I.R (Ext-2), seizure list (Ext-3) and the Inqu est report (Ext-4). He stated in his cross-examination that the appellant-accus ed had appeared at the police station on his own accord. He further deposed tha t there was no record as to the poisoning of the pond of the appellant-accused l eading to the destruction of fish therein. He admitted of not having seized any weapon. 12. PW-1 Dr. R. Chaliha had performed the post-mortem examination an d in course of his testimony at the trial stated to have found the following inj uries on the dead body: A stitched wound over the left occipito tempero parietal region measuring 17 cm in length situated 4 cm above upper border of the left ear, Brain, Membrane and bone were cut. Scalp was contused in and around the stitch wound. He opined that death was due to coma, as a result of the injuries of the head wh ich were antemortem being caused by sharp cutting weapon and were homicidal in n ature. According to him, the injuries detected were sufficient to cause the dea th of a person in ordinary course of nature. He confirmed the absence of any ev idence of consumption of wine by the deceased. He proved the post-mortem report , Ext-1 with his signature, Ext-1 (1). 13. In his statement U/s.313 Cr.P.C the appellant-accused admitted o f an altercation with the deceased on the day, previous to the one of the occurr ence. While he denied to have visited the house of the deceased on that day, he disclosed that he was attacked by him (deceased) with a dao near the culvert on the date of the incident and that as he obstructed the dao blow, a scuffle foll owed and he (appellant-accused) pushed him (deceased) and went away. The appell ant-accused stated that he did not know what happened thereafter. The defence examined 3(Three) witnesses as referred to hereinabove. 14. The appellant-accused as DW-1 deposed that he dealt in fish and had a pond near the house of the deceased where he reared different variety of f ishes. He stated that two days prior to the occurrence, some fish in his pond di ed and were floating in the water. He stated that the decay of some of the fish es indicated that those had been poisoned. As the deceased used to reside near the pond, the witness inquired of him about it to locate the person who could ha ve administered the poison. The appellant-accused testified that he later came to know that it was the deceased who had done so. On the date of occurrence, wh ile he was returning from Chalkhowa, he saw the deceased at the culvert near the pond muttering something with a dao in hand. As he wanted to go by, the decease d stood up and hurled a blow therewith at him. As the blow missed, he tried aga in and then the witness grabbed the deceased and in the scuffle the dao fell off from his (deceased’s) hand. The appellant-accused stated that due to the injur ies suffered he bleeded from his hands and legs. While stating that the decease d was then in a drunken state, he expressed his ignorance about his (deceased’s) condition following the jostle. He also stated to have informed the police abo ut the incident by lodging FIR. In cross-examination, the appellant-accused con ceded that he had not disclosed about the poisoning of his pond to the villagers . 15. DW-2 Shri Saronga Patra stated on oath that the appellant-accuse d had a pond near the house of the deceased, where he used to rear fish and main tain his family from the earnings by selling the same. According to this witnes s, some fish in the pond died as somebody had applied poison. He stated that at the time of the occurrence, he heard hue and cry and came to see that the appel lant-accused and the deceased were struggling to possess a dao and shortly there after both of them left for their respective houses. He denied the suggestion in the cross-examination that he had not gone to the culvert by hearing the hue and cry as claimed. 16. DW-3 Shri Pranab Patra stated that he had heard that the decease d had poisoned the fish of the pond of the appellant-accused. He stated similar ly that at the time of the occurrence he was drawn to the place by a commotion e merging therefrom and saw the deceased and the appellant-accused engaged in a sc uffle near the culvert. The witness stated that he saw a dao in the hand of the deceased. He testified that after a short scuffle both of the decease dand the appellant-accused left in two different directions. In cross-examination, he a dmitted that the appellant-accused was his uncle but denied the suggestion that he had deposed falsely to save him. 17. Mr. Choudhury has argued in the above background that as the gen esis of the occurrence is clearly traceable to a spat over the issue of death of fishes of the pond of the appellant-accused, for which he suspected the decease d and that the situs of the incident is near a culvert by the side of the pond, the evidence of the prosecution witnesses portraying a different version is whol ly unreliable and that therefore, the learned court below had erred in law and o n facts in passing the impugned judgment and order. The learned Senior Counsel urged that the evidence of the defence witnesses being relatably more cogent and convincing, in the backdrop of the sequence of events leading to the incident, the learned trial court ought to have acquitted the appellant-accused of the cha rge. Mr. Choudhury contended that as the evidence on record duly demonstrate th at the deceased and the appellant-accused were engaged in a tussle following an attempt by the latter to assault the former and that in all probability both wer e injured, the conviction of the appellant-accused for murder, in any view of th e matter is unsustainable in law and on facts. Without prejudice to the above, Mr. Choudhury has maintained that even assuming that the appellant-accused in re pulsing the attack mounted on him by the deceased had exceeded to his right of p rivate defence, the charge of murder is apparently not sustainable against him a nd therefore on that count, as well, the impugned judgment and order is liable t o be interfered with. 18. He pleaded, as well that having regard to the fact that the dead body bore one wound, bearing in mind the circumstances in which the deceased mu st have sustained it, the appellant-accused is entitled to be set free, he being already in jail for the last 6 years. 19. The learned Public Prosecutor has argued, in reply, that the evi dence of PW-3 and 4 when read in conjunction proved the charge against the appel lant-accused beyond all reasonable doubt. They being the eyewitnesses to the inc ident of assault leading to the death of the injured Banshi Chouhan the impugned judgment and order is valid and does not merit any interference of this Court h e urged. He has dismissed the evidence of the defence witnesses as wholly unacc eptable amongst others for absence of any proof of the injury said to be sustain ed by the appellant-accused, as well as of the intoxication of the deceased at t he relevant point of time. While contending that the materials on record do not establish the poisoning of the pond of the appellant-accused, Mr. Das has urged that had the testimony of the defence witnesses been the true version of the in cident, the weapon of assault would have been found at the place of occurrence. Referring to the post-mortem report, the learned Public Prosecutor has sought t o impress upon us that having regard to the force used and the impact caused by the blow resulting in the injury referred to therein, the defence narration of t he incident does not merit acceptance. 20. We have analysed the materials on record and though are inclined to accept that the appellant-accused at the relevant point of time possessed a pond and reared fishes therein for his sustenance, no persuasive evidence of the involvement of the deceased in the act of poisoning the pond is discernible. T he investigating officer, PW-8, in clear terms had stated in his cross-examinati on that there was no record of poisoning of the pond. The appellant-accused in his cross-examination as DW-1 had also confessed of not having disclosed about t his fact to the villagers. PW-3 and 4 as their testimony would reveal have prov ided a vivid picture of the sequence of events culminating in the incident, so m uch so, that a corroboration on all material particulars is demonstrable thereby . Noticeably, the weapon of assault has not been seized. According to the afore mentioned prosecution witnesses, the appellant-accused after dealing dao blows o n the deceased, left the place of occurrence by throwing his bicycle on the inju red. In contradistinction to the above, the defence version highlights a scuffl e between the deceased and the appellant-accused in course of the repeated endea vours by the former to assault the latter with a dao. None of the defence witnes ses is categorical about the injuries sustained by the deceased in the process. Though, DW-1 had deposed that in course of the assault for the weapon, the dao had at some point of time fallen of the hand of the deceased, there is no eviden ce as to the whereabouts thereof. This is significant in view of the fact that the same had not been seized by the police. 21. The post-mortem report proved by the medical witness reveals a w ound measuring 17 cm x 4 cm above upper border of the left ear whereby the brain , membrane and bone were cut. Not only, the report prove that the injury has be en caused by a sharp cutting weapon sufficient to cause death of a person in the ordinary course of nature, it also proclaims against consumption of liquor by t he deceased. Admittedly, there is no proof of any injury sustained by the appel lant-accused. The records also do not bear any convincing testimony of his info rmation to the police about the incident. 22. The two conflicting accounts of the incident furnished by the pr osecution and defence, when placed in adjacence we are left unconvinced about th e veracity and plausibility of the latter. The injury sustained by the deceased in our estimate is not possible in course of a scuffle as suggested by the defe nce. Moreover, though the defence witnesses are vague about the injuries sustai ned by the deceased and the appellant-accused, the eyewitnesses PW-3 and 4 have been consistently categorical about the assault by the latter on the former by a dao. The injury found on the dead body also accords with their testimony. We are, therefore, on a cumulative consideration of all materials on record of the unhesitant view that the appellant-accused had as narrated by PW-3 and 4 unleash ed murderous assault on the deceased by a dao, resulting in a fatal injury to wh ich he eventually succumbed. As we feel unconvinced of the acceptability of the evidence of the defence witnesses, we hereby reject the same. 23. We have scrutinized the reasons recorded by the learned court be low and on an independent evaluation of the materials as available on record, le nd our concurrence thereto. The impugned conviction and sentence, therefore, is hereby upheld. The appeal lacks in merit and is dismissed. No costs.