Crl.A. 161/2003 BEFORE THE HON’BLE THE CHIEF JUSTICE THE HON’BLE MR. JUSTICE A.POTSANGBAM The appeal, against the impugned judgment, is preferred from jail by the sole ap pellant who has been found guilty of the offence under Section 302 IPC by the le arned Sessions Judge, Dhemaji, Assam, in his judgment dated 10.2.2003 passed in Sessions Case No.9(DH)/2001 and sentenced him to life imprisonment with a fine o f Rs.1,000/- (Rupees one thousand), in default thereof, the appellant was to suf fer R.I. for one month. 2. We have heard Ms. B. Gogoi, learned Amicus Curiae, appearing for the app ellant and Mr. Z. Kamar, learned Public Prosecutor, Assam appearing for the Stat e. 3. The prosecution story, in brief, is that on 24.7.1996 at about 12.00 noo n, the deceased Trilochan Sarmah and one Gogoi came on a bi-cycle at the house o f the deceased and while they were having tea and chatting, they came to know th at the said bi-cycle, which was kept in a cow shed, was taken by the accused in his house. The deceased went inside the house of the accused to fetch the bi-cyc le and he was assaulted therein with a poting (a sharp weapon for hunting eels) by the accused who pushed out the deceased from his house. At that point of time , the deceased was crying as Gogoi, I am dying . The deceased was immediately t aken to Dr. Medhi of Silapathar by his wife accompanied by the said Gogoi and so me others, but the deceased succumbed to his injury. An FIR was lodged in connec tion with the incident by a brother of the deceased, who is also the brother of the accused and the Silapathar P.S. Case No.141/1996 under Section 302 IPC was r egistered by the O.C. of Silapathar Police Station. Thereafter, the police inves tigated the case. Inquest was held, postmortem was performed, the weapon of offe nce (One poting) was seized and the evidence of the witnesses were recorded. 4. After completion of investigation, the I.O. submitted charge sheet befor e the court of Additional Chief Judicial Magistrate, Dhemaji, who committed the case on 2.2.2001 to the court of the learned Sessions Judge, Dhemaji, for trial as the offence was exclusively triable by a court of Sessions. The learned Sessi ons Judge framed charges against the accused appellant under Section 302 IPC and on pleading not guilty of the charge, the accused was directed to be tried on t he aforesaid charge. At the end of the trial, after scrutiny of the evidence on record, the learned Sessions Judge came to the conclusion that the appellant was guilty of the offence punishable under Section 302 IPC and sentenced him to lif e imprisonment with fine. 5. We will now examine the evidence on record and the reasoning adopted by the learned Sessions Judge, Dhemaji, to find out whether the conviction and sent ence imposed by and in the impugned judgment dated 25.2.2003 passed in Sessions Case No.9(DH) 2001 under Section 302 IPC, can be sustained or not. 6. Prosecution has cited and examined 10 (ten) witnesses including the I.O. and M.O. No DW was examined by the convict appellant and the plea taken by the appellant in his examination under Section 313 CrPC was of total denial theory. However, it was stated by the appellant in the aforesaid examination under Secti on 313 CrPC that the appellant and deceased being Brahmin, they were not suppose d to take wine but the deceased was taking wine and as such the appellant asked the wife of the deceased not to allow her husband to take wine and on account of this, a false case was filed against the appellant. But no evidence was adduced by the defence to substantiate the aforesaid plea. 7. Admittedly, the appellant is the younger brother of the deceased. PW-1, PW-2, PW-3, PW-5 and PW-7 are all close relatives of the deceased as well as of the appellant. PW Nos.1 and 5 are wife and daughter, respectively, of the deceas ed and PW-2 who is the informant of the FIR, is the younger brother of the decea sed and the appellant. The PW No.3 is the nephew of the deceased and the appella nt and PW-7 is the son of the appellant. 8. The case of the prosecution mainly rests on the evidence of PW Nos.1,2,3 ,5 and 8. PW-1 who was present at the place of occurrence at the relevant point of time, stated that one Gogoi and her deceased husband came on a bi-cycle on th e fateful day at about half past eleven in the morning and they were having tea and talking in the house of the deceased. At the relevant point of time, one of the sons of the appellant informed that his father has taken the bi-cycle of Gog oi, inside the house of the appellant, and the deceased went to the house of the accused to bring the bi-cycle. She saw the deceased being pushed out from the h ouse of the appellant with bleeding injury on his body and thereafter the deceas ed, who fell down on the veranda of the appellant’s house, was taken to his hous e which lay contiguous to the house of the appellant and the deceased told PW-1 that he was hit with a poting by the appellant. In the meantime, the complainant Pushpalal Sarmah, the PW-2 and Kamal Sarmah, the PW-3 also came and all of them took the deceased to Doctor Medhi at Silapathar but the deceased succumbed to h is injury. The said Pushpalal Sarmah lodged an FIR to the police and thereafter the police came and arrested the accused from inside his house where he remained bolted from inside. Police also seized the weapon of offence i.e. poting. PW-1 clearly stated that at the time of occurrence, her youngest son, daughter (PW-5) and the guest Gogoi were present in the house of the deceased. In cross examina tion, PW-1 categorically stated that she saw her husband in an injured condition when the appellant got him out of his house and deceased was capable of speakin g when he was taken to his house by the witness and some others. The witnesses a lso stated that the appellant was taken to Tezpur Mental Asylum, two years after the occurrence, but he was sent back as he was not insane. What is fatal for th e defence is the evidence of the PW-1, in cross-examination, that the deceased w as capable of speaking when he was taken, in an injured condition, from the hous e of the appellant to the house of the deceased. There was no cross-examination on the dying declaration made by the deceased to PW-1 that he was hit by the app ellant with a poting and as a result he sustained bleeding injury. 9. The statement of PW-1 that the deceased told her that he was assaulted b y the appellant with a poting is corroborated by the evidence of PW-2 who is the younger brother to both the deceased and the appellant. It is in the evidence o f the PW-2 that the deceased, when asked, told the witness that the appellant as saulted him with a poting when he went to bring the bicycle from the house of th e appellant and this witness also deposed that he saw bleeding injury in the che st of the deceased and thereafter, the deceased was taken to Dr. Medhi’s Nursing Home by him, PW-1 and some others and the deceased succumbed to his injury. The PW-2 has proved the ejahar as Ext.1 and his signature as Ext.-1 (1). He was als o a witness to the inquest report. Ext.-2 and Ext.-2(1) was proved as his signat ure. In the cross-examination, PW-2 testified that what had been stated in the e jahar (Ext. -1), is what he had learnt from PW-1 as well from the deceased befor e his death. 10. The PW-3 is the nephew of the deceased, the appellant and the PW-2 and h e had also corroborated the evidence of PWs -1 and 2. It is in the evidence of t he PW-3 that he saw bleeding injury on the abdomen of the deceased and when he a sked the deceased as to who assaulted him, the deceased told him that the appell ant hit him with a poting. The PW-5 is the daughter of the deceased, who was pre sent along with her mother at the house of the deceased when deceased was pushed out by the appellant from his house after hitting with a poting. She saw her fa ther with injury in his chest and in the cross-examination she denied the sugges tion that her father was not in a position to speak at the relevant point of tim e. It is to be noted herein again that the house of the appellant and that of th e deceased is adjacent to each other with a common gateway and therefore, anyone can see easily any happening on either side of the two houses. 11. The PW-7 is the son of the appellant, who is a seizure witness to Ext.-3 , i.e., the seizure list of the weapon of offence (poting) and he proved Ext.3(1 ) as his signature. PW No.7 deposed that his father, the appellant, was a mental patient at the relevant point of time. However, he stated that he was one of th e persons, who had taken the deceased to doctor at Silaphatar where the deceased succumbed to his injury. This witness further stated that the deceased informed him that a poting which was kept near a door had fallen and hit him and as a re sult, he sustained injury in the abdomen. PW No.7 being the son of the appellant cannot be expected to give evidence implicating his father with the death of th e deceased. The PW-8 is a person, who came to the house of the deceased on the f ateful day, on a bi-cycle and he heard the deceased crying from the house of the appellant, as Gogoi, I am dying , He also testified that deceased was hit by s ome one inside the house of the appellant but he did not know, who hurt him. 12. The PW-9 is the Medical Officer of the Dhemaji Civil Hospital, who perfo rmed the postmortem examination on the body of the deceased on 25.7.1996 and fou nd the following injuries : 1) A rounded injury mark over the epigastrium area slightly right to the mid-li ne. Size 5 cm in diameter minimal blood of ante-mortem seen. It is n ot pierced the internal layer of the abdomen or epigastrium wall. 2) A big area of bruise over the whole lower abdomen below umbilicus on both sid e of the right and left iliac fossa seen. 3) Another big bruise mark around about 20 cm over the back on right and left re nal angle is present. 4) There is a cut injury over the left kidney, size 2 cm oblique. However, the Medical Officer opined that the death was caused by a blunt weapon. The PW-10 is the I.O. of the case, who had examined the witnesses and proved th e Exts. 1, 2 and 3, and the signatures thereon and he also proved the signature of his succeeding I.O., i.e. one Atul Barman. It is to be noted that inquest rep ort clearly indicates that there was a cut injury, which is about half an inch i n size below the chest and above the naval with clotted blood. 13. Defence has not denied the death of the deceased on 24.7.1996 due to inj ury sustained by him. Evidence of PW-1,5 and 8 clearly established that the dece ased went to the house of the appellant to fetch the bi-cycle belonging to the P W-8, which was taken by the appellant in his house while the deceased and PW-8 w ere chatting and having tea at the house of the deceased which lay adjacent to t he house of the appellant. Further evidence of aforesaid PW-1,5 and 8 is that th e deceased was seen being pushed out by the accused from his house and he fell o n the veranda by crying that Gogoi I am dying and all the (3) witnesses saw a bleeding injury on the chest of the deceased. It is also in the evidence of PW-1 and 5 that the deceased was capable of speaking when he was taken from the vera nda of the appellant to the house of the deceased. The aforesaid evidence of the PW-1 and 5 remained unshaken in the cross-examination and their evidence would go to prove that the deceased received bleeding injury in his chest when he was pushed out by the appellant from his house. Next question is who could have caus ed the bleeding injury on the body of the deceased which led to his death. Immed iately after the deceased was taken to his house, he told his wife that he was h it by the appellant with a poting after giving fist blows and as such he receive d a bleeding injury on his body. This statement was made in the presence of PW-1 ,2,3 and 5. Even assuming that the evidence of PW-1 and 5 are to be disbelieved or to be discarded on the ground that they are the wife and daughter of the dece ased, the evidence of PW-2 and 3 cannot be ignored for any reason. PW-2 is the b rother of the deceased as well as of the appellant and PW-3 is also the nephew o f the deceased as well as of the appellant and they are part of the part of the Sarmah family. There is no reason why their evidence should be disbelieved inasm uch as there is no evidence even to suggest that they have any personal grudge o r vested interest to depose against the appellant. PW-2 and PW-3 were the two wi tnesses who rushed to the house of the deceased after learning the commotion and they were informed by the deceased that the deceased was hit by the appellant w ith a poting and these two witnesses saw bleeding injury on the chest of the dec eased. There was no cross examination, at all, of the Medical Officer as to whet her the deceased was capable of making any statement after the injury was inflic ted upon him and as such the evidence of PW-1 and 5 that the deceased was in a p osition to speak even after he was hit by a poting cannot be rejected. Therefore , the oral dying declaration made by the deceased that he was hit by the appella nt with a poting in the house of the appellant and as a result he sustained blee ding injury on his chest, had been rightly believed and accepted by the trial Co urt and we hereby endorse the same. 14. Mr. Z. Kamar, learned P.P. relies upon a case of (Ganeswar Das Vs. State of Assam) reported in (2005) 13 SCC 387 where the deceased became un-conscious immediately after uttering a few words that the accused-appellant cut him . Thi s declaration was rightly accepted by the trial Court and also by this Court wit h subsequent endorsement of the Apex Court. In the circumstances, the fact that the deceased went to the house of the accused-appellant and was pushed out with a bleeding injury and thereafter, he was taken to his house where he told the PW -1,2,3 and 5 that he was hit by the accused-appellant with a poting was rightly believed and accepted by the learned Sessions Judge. 15. We have perused the evidence of witnesses and also the impugned judgment and order dated 25.2.2003. The medical opinion of the doctor’s that the injury was caused by a blunt weapon whereas all the witnesses had stated that the decea sed was injured by a poting, leaves a question to be determined between the medi cal evidence and the evidence of the witnesses. In this regard, the inquest repo rt exhibit-2 is pertinent. In the inquest report, exhibit-2, I.O. had noticed a cut mark below the chest and above the naval and relying upon a decision of Jodh akhoda Rabria Vs. State of Gujrat reported in (1992) CRI.J 3299, the learned Ses sions Judge held that when there was contradiction between the testimony of eye witness and laboratory report, positive eye witness account would not be discard ed if it was found otherwise reliable. In the instant case, the witnesses, thoug h no eye witnesses to the actual assault, came to know immediately after the inc ident, that the appellant caused the cut injury to the deceased and these eviden ces are found reliable and trustworthy. There is nothing on record to show that there is any deep seated enmity between the witnesses and the accused and they a re all close relatives and as such the learned Sessions Judge has rightly accept ed the evidence of the witnesses. 16. In the circumstances, we are of the considered opinion that the prosecut ion have been able to bring home the charge of the offence under Section 302 IPC and there are sufficient evidence to justify the conclusion of the learned Sess ions Judge that the appellant was responsible for causing the death of the decea sed and as such the conviction and the sentence imposed by the learned Sessions Judge, Dhemaji, on the appellant, need no interference. 17. In the result, the appeal fails and accordingly, the same is dismissed. 18. It is ordered that learned Amicus Curie shall be paid a sum of Rs.2,500/ - only as her fees. Send down the LCR.