Crl.A. 366/2002 BEFORE HON’BLE JUSTICE MR. H.N. SARMA Being aggrieved by the judgment and order passed in Sessions Case No. 11/1995 b y the learned Sessions Judge, Barpeta, convicting the accused appellants under S. 304 (Pt-II) IPC and sentencing them to undergo R.I. for three months, the p resent appeal is filed. 2. Heard Mr. I. H Saikia, learned counsel appearing for the appel lants and Mr. B. Gogoi, learned Addl. Public Prosecutor for the State. 3. The prosecution case was initiated on the basis of an FIR lodged by one Asmat Ali with the O/C Tarabari P.S. on 12.4.89 alleging that Parash Ali , Darog Ali, Surat Jamal and Jinnat Ali of village Dakhindadhuni (Damdama Char) at about 8 A.M. started uprooting fencing of the paddy field of the informant a nd when the informant raised protest, the accused Parash Ali armed with a spade as ordered by Darog Ali inflicted blow upon Malek Ali, the son of the informant thereby causing severe injury on his body. The other three accused, viz. Darog A li, Surat Jamal and Jinnat Ali also assisted in committing the offence. As the c ondition of the injured was precarious he was sent for better treatment by the l ocal doctor to Barpeta Civil hospital. On the basis of the aforesaid information Tarabari P.S. Case No. 50/89 u/s 447/326/302/34 was registered and simultaneous ly the wheel of investigation was set into motion. Later on the injured being ex pired on 15.4.89, due to the injury sustained S. 302 IPC was also added. 4. During the course of investigation the I/O recorded the statemen ts of witnesses and seized materials. The I/O conducted inquest upon the dead b ody of the victim and sent the dead body for postmortem examination. After colle ction of the postmortem report and upon completion of the investigation and havi ng found a prima facie case against the accused persons, the I/O submitted charg e sheet against them u/s 447/326/302/34 IPC and sent for trial to the court. 5. The learned Magistrate being found the case to be triable by the court of sessions committed the same to the court of the Sessions Judge, Barpet a, wherein it was registered as Sessions Case No. 11/95. After appearance of the accused charge u/s 302/34 was framed on the basis of the documents submitted u/ s 173 Cr.P.C. by the I/O. On being explained the charge, the accused persons den ied the same and claimed to be tried and accordingly trial started. During the c ourse of trial, prosecution examined as many as six witnesses including the info rmant, doctor and the I/O. The circumstances that appeared against the accused p ersons were put to them by examining them u/s 313 Cr. P.C., which was denied by the accused, and they also examined two defence witnesses in support of their de fence. The learned Sessions Judge after completion of trial, on the basis of the materials available on record held the appellants to be guilty under S. 304 (Pt -II)/34 IPC and sentenced them to undergo R.I for three months. No sufficient ma terials having been found against the other accused persons, they were acquitted by the learned Sessions Judge, vide impugned judgment and order dated 31.8.2002 . 6. In support of the appeal the learned counsel submits that all t he PWs being relatives of the informant and enimical to the accused, the learne d trial judge committed error of law and facts in accepting the statements witho ut necessary scrutiny and without considering the defence story as propounded th rough the defence witnesses. It is also contended that there having apparent dis crepancies in the ocular and medical evidence there is a serious lacuna in the e vidence of the prosecution to connect the appellants with the guilt and as such they are liable to be acquitted setting aside the impugned conviction and senten ce. 7. Per contra Mr. Gogoi learned Addl. P.P. submits that the learne d Sessions Judge has not committed any error requiring interference with the imp ugned judgment and order and the statement of the prosecution witnesses are cons istent, clear, reliable and acceptable and merely they being the relatives of t he informant that cannot be a ground for discarding their evidences which are ot herwise impeachable. Further contention of the learned Public Prosecutor is that the learned trial judge has considered all aspects of the matter and has rightl y convicted the accused appellants on the basis of materials available on record requiring no interference in this appeal. 8. I have considered the submissions of the learned counsel and ca refully scrutinised and examined the materials available on record including the statement of the PWs and DWS. 5. The broad facts as regards the injuries of the victim Malek Ali the son of the informant on 12.4.89 at the place of occurrence and his resultant death on 15.4.89 is not disputed. In such a situation, it is to be seen as to w hether prosecution has been able to prove the case as projected against the accu sed appellants beyond all reasonable doubt. Now let us scrutinise the statement of the prosecution witnesses to answer this query. The doctor who conducted the postmortem examination of the victi m was examined as PW 5. In his deposition he stated to the effect that at about 3.00 P.M. on 15.4.89 he performed postmortem examination on the dead body of Mal ek Hussain, male child, 4 years of age of village Demdama Chowk, P.S. Tarabari a nd found the following : (1) Built average. Eyes and mount closed. Rigormortis present. (2) One transverse cut injury found over the nape of the neck. Size- 3 X ‰ (l ength, breadth & depth). (3) Another transverse cut injury found over the back of the neck, ‰ below and parallel to the injury No. 1, injury, i.e. 3rd cervical vertebra and the spi nal cord. (4) One transverse cut injury over the base of the left palm, size - 3 x 1/3 x 1/5 . (5) Fracture of the left radius and ulna found at the junction of the upper 1/3 and lower 2/3. Spinal cord found injured. Stomach found empty and few faecal ma tters are found. The injuries are ante mortem in nature. Opinion : The death is due to shock and hemorrhage, as a result of injuries sust ained. In his cross examination PW 5 stated the injuries were not cause d by single stab and the injuries were fresh and it might be within 12/15 hours from the time of postmortem examination. The injuries mentioned by PW 5 in his deposition are also reflected in Ext- 2, the postmortem report. PW 1, the younger brother of the informant deposed that they have got their land on the northern side of their house and on the eastern side of their land the accused Paresh Ali has his land. They were plouging the land f or jute cultivation. At that time when the accused Parash Ali uprooted the fenci ng on the boundary. the informant objected and then he at the instigation of Dar og Ali inflicted blows upon the informant and as the informant ran away the blow fell on the shoulder and arms of his son Malek. Simultaneously Malek fell down on the ground and all the accused persons fled away. The spade was of the accuse d Paresh Ali. He proved Ext- 1 seizure list and Ext- M(1) as his signature. He t ook the victim Malek for treatment to Bahari Hospital from where he was taken to the Police Station and thereafter the injured was taken to Barpeta Civil Hospit al for better treatment. Three days thereafter the victim expired in the hospita l. In his cross he stated that Malek got two injuries one injury on his back and the other in the upper portion of the arm. Two blows were inflicted on him. The blow did not hit the PW 1. He denied the suggestion that there was a previous d ispute between the parties as regards the boundary of the land. PW 2 Asmat Ali is the informant. He deposed that on the day of occurrence while he was ploughing in his land the accused persons broke the boun dary fencing, he objected, at that stage as per the order of Darog Ali the accus ed Paresh Ali attacked the informant with a spade which missed him and it fell o n his son Malek Ali who was standing nearby. Injuries were caused on the shoulde r of the victim and he fell down instantaneously. The victim was taken to the Ta rabari P.S. and from there he was taken to Barpeta Civil Hospital wherein he suc cumbed to the injuries. In cross he stated that the village headman settled the boundary between them about 3/4 days prior to the occurrence. He further stated that victim Malek got two injuries on his shoulder and on his arm and was not ki lled intentionally and he denied the suggestion that the blow given by him only fell upon Malek Ali. PW 3 is the wife of PW 2 who corroborated the statement given by PW 2. S he further stated that she witnessed the occurrence and saw Paresh Ali inflictin g blows upon the victim. In her cross she stated that except Darog and Paresh ot her accused person did nothing. She also stated that the accused also provided c lothes to his son and daughter at the time of Idd. She denied the suggestion tha t while her husband doing fencing work on the boundary at that time a blow fell upon the victim Malek Ali. PW 4 is the seizure witness to seizure list Ext- 1 wherein he pu t his signature as Ext- 1(1). PW 6 is the I/O of the case. In his deposition he stated that t he preliminary investigation was to be done by ASI Bhaginath Mahanta, although h e attempted to arrest the accused persons they were not found and could not be a rrested. On 24.2.90 he having transferred, case diary was submitted to the O/C a nd S.I. Bimal Gogoi submitted the charge sheet. In his cross he stated that as per inquest report there were two cut injuries on the body of the victim. The sk etch map of the place of occurrence was also prepared by the I/O. No contradicti on of the statement of PWs were proved through the I/O The statements of the accused were initially recorded on 11.12.2 000 but the same having been found not to be recorded as per procedure, the pres iding officer who came on transfer later on further examined the accused persons u/s 313 Cr.P.C. on 31.8.2002, putting the circumstances that appeared against t hem as per the statement of the prosecution witnesses, to which they denied. Two defence witnesses were examined by the accused, in support of their defence DW 1 Jabbar Ali in his deposition stated inter alia that the dis pute between the informant and Paresh Ali took place on the day of occurrence a t about 8.30 A.M and at that time he was in the place of occurrence. When Asmat Ali broke away the boundary Paresh Ali objected. At that stage the informant As mat Ali inflicted blows upon Paresh Ali with a spade but the blows fell upon his son Malek Ali who expired in the hospital. In his cross he stated there was a b oundary dispute between the parties since before. He denied the suggestion that Paresh Ali tried to inflict blows upon Asmat Ali with the spade which fell upon the victim Malek Ali. DW 2 in his deposition stated that there was a dispute regarding the boundary between the informant and the accused. On the date of occurrence h e was ploughing in his field near the place of occurrence. At the time of occurr ence when the fencing of boundary of Paresh Ali was broken and Paresh objected, then Asmat inflicted blows upon Paresh with a spade but the blow fell upon his s on Malek Ali, as a result of which he was injured and was taken to the hospital. In his cross he stated that the place where he cultivated is 160 cubic away fro m the place of occurrence and he came to the place of occurrence seeing the inci dent. He denied the suggestion that when the accused Paresh Ali inflicted blows upon Asmat the blow fell upon his son Malek Ali. A close scrutiny of the evidence of the prosecution witnesses disc lose that two injuries were inflicted upon Asmat Ali and when he ran away it fel l upon the victim Malek Ali. All the prosecution witnesses are consistent to tha t extent. Prosecution witnesses are also consistent to the effect that two injur ies were inflicted by the accused Paresh Ali upon the victim. The injuries upon the victim as reflected in the postmortem examination also tally with the inques t report. The scrutiny of the evidence of the PWs led me to arrive at the conclu sion that the discrepancy between the ocular and medical evidence sought to be p rojected by the defence as regards number of injury is not borne out of record. 7. It is true that the PWs more particularly PW 1, 2 and 3 are rela ted and appears to be the members of the same family of the informant. In consid ering the nature of the statements of the PWs which are consistent with the medi cal evidence and the broad spectrum of the prosecution story, only being near re lations, their evidence can be discarded. There are sufficient corroboration in the statements of the prosecution witnesses more particularly in the statement o f PW 1, 2 and 3, alongwith the evidence of the doctor, PW 5. 8. Let us now consider the defence story propounded through the DWs produced by the accused in support of their story that the victim Malek Ali was injured while his father Asmat Ali attempted to give blow upon Paresh Ali. The DW 2 claims to have been ploughing near the place of occurrence but in cross he stated that the place where he was ploughing is about 160 cubic away from the pl ace of occurrence and seeing the occurrence he came to the place of occurrence. Considering the sequence of events and accepting the statement of DW 2 a s stated in his cross examination, it is found that he arrived to the place of o ccurrence after the incident was over. Similarly DW 1 who claims to be present i n the place of occurrence but in the absence of any part played by him it is dif ficult to accept the said statement dislodging the consistent statement of PWs. On the other hand, the entire defence story is adversely affected from the state ment of PW 3 which is elicited in his cross. The suggestion of the defence to th e effect that when Paresh Ali wanted to give the blow on the informant, it fell down upon his son Malek Ali, the victim. Thus one side of the defence story is t hat Paresh Ali attempted to give blow upon the informant and the other side is t hat it is the blow of the informant Asmat Ali which fell on the victim. Defence story, thus, is not only inconsistent and the evidence of DW 1 and DW 2 do not i nspire confidence at all so as to dislodge the affect of clear cogent and consis tent evidence adduced by prosecution witnesses supported by medical evidence. Al though the learned counsel for the appellants argued in support of the appeal re ferring to certain discrepancies of ocular evidence and medical evidence on the basis of discrepancies of medical and ocular evidence and the effect of treatmen t of evidence of the relatives of the victim, but upon proper appreciation of ev idence, I do not find any such discrepancies sufficient enough to disregard the facts proved by prosecution witnesses. 9. Upon consideration of the entire evidence and materials availabl e on record I find that prosecution has been able to prove the case against the appellants attracting an offence under S. 304 Pt- II IPC by clear cogent and imp eachable evidence. The learned trial judge has rightly found that there is no ev idence to cause injury on the victim by the accused to attract the provision of S. 302. The number of blows being more than one which is proved by PWs including evidence of the doctor and taking note of the sequence of events, the submissio ns of the learned counsel for the appellants that prosecution failed to prove th e case beyond all reasonable doubt is not acceptable. 10. In view of the above discussions, I do not find any merit in thi s appeal and it stands dismissed. The appellants are directed to surrender befor e the court below to serve out the sentence imposed upon them within a period of two months from today. The period undergone shall be set off. Registry is direc ted to transmit the LCR forthwith.