Judgment · High Court · 2012

olice Station and admitted him at the hospital aforesaid as well. 5. An FIR to that effect on being lodged with the Police on 05.01.2 006 by Smti Anjali Borah, the wife of the victim , Police registered a case unde r Section 341/326 IPC and ordered one Sri S.R. Dutta, ASI to undertake prelimina ry investigation to ascertain if the Police station aforesaid have the jurisdict ion to investigate the case and also to do other needful. Being so ordered, Sri Dutta, ASI started investigating the case and in the course of investigation, he visited the place of occurrence, examined the witnesses and prepared a sketch m ap of the place of occurrence and also arrested the accused person. 6. The injured was meanwhile shifted to Jorhat Civil Hospital for t reatment. But his condition deteriorated further for which he was taken to Assam Medical College Hospital, Dibrugarh (in short (cid:28)AMCH (cid:29)) The deceased, however, su ccumbed to the injury at Dibrugarh on 09.01.2006.On his death an inquest as well as post mortem examination was done on his body . On completion of the investi gation of the case, Police submitted charge sheet under Section 302 IPC against the accused person and forwarded him to the Court to stand his trial there. 7. The Magistrate, before whom the case was so laid, committed the case to the Sessions as the offence U/s 302 IPC is exclusively triable by the Co urt of Sessions. The learned Sessions Judge after commitment of the case and aft er hearing the parties, framed charge against the accused/appellant under Sectio n 302 IPC and charge, so framed, on being read over and explained to the accused person, he pleaded not guilty and claimed to be tried.

#8. During the trial, the prosecution has examined as many as 10 wit nesses. That apart, the Doctor who treated the injured at Jorhat, Civil Hospital was examined as Court witness. The statement of the accused was recorded U/s S ection 313 Cr.PC. In his statement U/s Section 313 Cr.PC, the accused claims tha t on the fateful night he came to the P.O. hearing her hue and cry there-from bu t left it soon thereafter on being advised by Shri Jugal Bora and Shri Rubul Bo ra. However, the accused did not adduce any evidence to probabilise 9. his plea which he raised while being examined U/S 313 Cr. P.C. On conclusion of trial and after hearing of the parties, the learned Trial Court held the accused guilty of offence under Section 302 IPC and convicted him accordingly and sente nced him as aforesaid. It is that judgment which had been challenged herein this appeal. We have heard the learned counsel for the parties. While the lea 10. rned counsel for the accused/appellant has contended that the judgment ,impugned , cannot be allowed to stand as it suffers from several infirmities of extremely serious nature. Infirmities, so pointed out, are: (i) there was delay of five d ays in lodging the case and it remains totally unexplained (ii) there was fundam ental difference between the story projected in the FIR and the story which the accused had divulged before the Court during the course of trial (iii) the PWs, particularly, the eye witnesses, tried to improve their versions in each and eve ry step of the proceeding under consideration and (iv) Doctors, examined from th e side of the prosecution, contradict one another on certain fundamental points which in turn makes the prosecution very doubtful. 11. It has also been contended that the dying declaration relied on by the learned Trial Court is not trustworthy as the witnesses who claimed to ha ve heard the accused making a statement in the nature of dying declaration were not at all trustworthy .More important, Police did not made any attempt to recor d the dying declaration of the deceased although it had found enough time to do so during the course of investigation. However, the learned Trial Court ignored all those serious infirmities in the prosecution case and chose to hold the accu sed guilty of offence under Section 302 IPC, convicted him of said offence as we ll and punished him as aforesaid. He, therefore, submits this Court to set aside the judgment of the learned Trial Court on acquitting the accused of offence, h e was charged with. 12. On the other hand, the learned Public Prosecutor, appearing for the State, strenuously argues that the Trial Court rendered its verdict on the b asis of evidence on record assigning sound logic in holding the accused guilty o f the offence, he was charged with and as such, the judgment, impugned, does not call for any interference from this Court of Appeal and he, accordingly, urges this Court to affirm the judgment instead. We have perused the materials on reco rd having regard to the arguments, advanced by the learned counsel for the parti es. 13. However, before we could proceed further, we find it necessary t o reproduce the evidence of PWs, particularly the evidence of non-official witne sses. P.W. 1 Smti. Anjali Borah, the wife of the deceased, in her evidence has s tated that on 31.12.2005, her husband had gone to picnic. As he did not return h ome till mid night, she and her two children had been waiting for him and they d id so sitting around the fire place in their house. 14. At about 2:30 AM, they heard hue and cry raised by her husband j ust in front of the house of the accused person. Being alarmed, they immediately rushed to the place of occurrence. She also took a torch in their hand. As she arrived at the place of occurrence, she saw accused Shri Biraj Borah inflicting dao blows on the head of the deceased and he did so on the road just in front of his house. Being so hit, her husband fell down on the ground. When she enquired as to why he assaulted her husband, she too was threatened by the accused perso n. 15. Taken aback at such a turn of events , she raised hue and cry w hich also brought Rubul Borah, Jugal Borah and Suryya Borah to the place of occu rrence. The brother as well as the father of the accused also came there and the y all took the accused to their house. The injured was then brought to the hou se and was provided him with necessary first aid. Next morning, they went to the Pulibar Police Station and with the help of Police, they took the victim to Jor hat, Civil Hospital for treatment. In that connection, she lodged an Ejahar with the Police on 05.01.2006.

#16. Subsequently, her husband was taken to A.M.C.H., Dibrugarh, wher e he was treated for three days .But he succumbed to injuries few days later. It is also her evidence that her husband was in sound mental condition when he was treated at Jorhat. She explained in the F.I.R. as to why she could not lodge th e Ejahar in time. In her cross examination, she denied the suggestion that she did not witness the accused inflicting blows with a dao on her husband 17. P.W. 2, Sri Chiranjit Bora is a businessman. According to him, o n the night of 31.12.2005, he along with his mother and sister were sitting arou nd the fire place warming up themselves. They were also waiting for their father to come who had not returned home from picnic well beyond mid night. At around 2:30 A.M., they heard their father crying (cid:28)I am dying (cid:29). They immediately rushed to such place which is situated on the road in front of the house of the accused person (Shri Biraj Borah). A torch was with them at that time.

#18. When they arrived at the place of occurrence, they saw the accus ed administering dao blows on the head of their father. When they raised hue and cry Rubul Bora and Jugal Bora turned up. They took the deceased to their house and immediately rendered him necessary first aid. They also took him to Jorhat Civil Hospital next day in morning and got him admitted there with the help of t he Police. Few days later, he was taken to A.M.C.H., Dibrugarh, but he died ther e on 09.01.2006. In his cross examination, he denied the suggestion that he did not tell the I/O that he saw the incident in question. P.W. 3, Smti Reetamoni Bora is the daughter of the deceased. Acc 19. ording to her, on 31.12.2005, she along with her brother and mother were sitting around the fire place warming up themselves. They were actually waiting for the ir father to come from picnic. At about 2:30 A.M., they heard her father crying (cid:28)I am dying (cid:29). She along with her brother and mother rushed to the place wherefro m her father was so crying. Her mother also took a torch with her. As they arriv ed at the place of occurrence, she saw the accused planting blows with a dao on her father. The accused also threatened them. Seeing such a incident, they raised hue and cry which brought Ru 20. bul Borah and Jugal Borah to the place of occurrence. They took the accused to h is house. They immediately brought their father to their house and gave him prel iminary treatment. Next day in the morning, the injured was taken to Jorhat Civi l Hospital, wherefrom he was shifted to A.M.C.H., Dibrugar but he died there a f ew days later. It is in her evidence that the injured was first taken to the Pol ice Station wherefrom he was sent to the Jorhat Civil Hospital. In her cross exa mination, she has also stated that on arriving at the place of occurrence, they found her father lying on the ground in an injured condition. 21. P.W. 7, Sri Jayanta Bora deposes that on the night in question, he was in his residence. He stayed in the residence of one of his friends. When he came home in the morning next day, he found his father there in an injured co ndition. His father told him that Biraj had assaulted him with a dao. He was tak en to the Civil Hospital. As his condition deteriorated further, he was shifted to AMCH, Dibrugarh. However, his father died on AMCH, Dibrugarh few days later. It is also evidence that his father could speak well till the eight days of the incident. Defence made no serious efforts to question his credibility. P.W. 8, Sri Binoy Bora is a businessman and the son-in-law of th 22. e deceased. According to him, on 31.12.2004 (31.12.2005?), he was at his residen ce which is situated about half a kilometer away from the place of occurrence. O n 01.01.2006, at about 10:00 AM, he came to the residence of the deceased. The d eceased told him that the accused had cut him on his head. He was thereafter ta ken to the Civil Hospital, Jorhat wherefrom he was shifted to AMCH, Dibrugarh. H e died on 09.01.2006. 23. P.W. 9, Ranjit Bora is a businessman and neighbor of the decease d as well. According to him, on the fateful night, he was at his house. The inci dent under consideration occurred around midnight on the night in question. He c ame to know about same next day in the morning. Then he went to meet the deceas ed but he could not meet him as he was not there in his house when he visited hi s house. He wrote the FIR(Ext.1) and he wrote it he was told about it. 24. P.W. 5, is Sri Jugol Bora and P.W. 6 Sri Rubul Bora have deposed in their evidence that on the fateful night, they came to the place of occurren ce hearing hue and cry from such a place as such a place is situated just in f ront of their house and they saw the wife of deceased and her children altercati ng with the accused person. These two witnesses were declared hostile to the pro secution.

#25. So situated, let us consider the evidence of the official witnes ses and again the evidence of the police Officers who conducted the investigatio n is taken up for reproduction before considering the evidence Medical Officers. P.W. 10, Sri Dijendra Ch Barman, S.I. of Police. According to him, he submitted the charge sheet in the case in question on the basis of materials therein, but he admitted that he did not conduct the investigation the case under considerat ion. P.W. 11, Sri Sonbaram Dutta, is an ASI of Police. According to h 26. im, on 05.01.2006, he was posted at Pulibar Police Station. On that day, the O/C received an F.I.R. from Smt. Anjali Bora (P.W. 1). The O/C registered the case on receipt of such an Ejahar and entrusted him with the investigation. Being so entrusted, he visited the place of occurrence and have found that the injured al ready shifted to the hospital. 27. He recorded the statements of the witnesses (emphasis, supplied b y us), also arrested the accused person in the course of investigation, drew a s ketch map of the place of occurrence (Ext.6 is the sketch map of the place of oc currence). In his cross examination, he has stated that after doing preliminary examination, he submitted a case diary to the O/C for his doing the needful. 28. This brings us the testimonies of Medical Officer who reportedly examined the injured during his life time after being injured in the alleged in cident and the Doctor who performed autopsy on body of the deceased on his death . They are Dr. Amit Kumar Saikia (C.W. 1) and Dr. Rupak Kr Gogoi (PW 4) respecti vely. According to Dr. Amit Kumar Saikia,(C.W. 1), on 05.01.2006, Gunaram Bora, aged about 55 years, male, under care of one Biraj Bora of Bohotia Gaon, under P ulibor Police Station was admitted in the Male Surgical ward with the history of head injury.

#29. He was advised to undergo C.T. Scan of Brain and other Medical t ests including X-ray of the scalp. The report made on the basis of C.T. Scan, re veals no abnormality. Clinically too there was no head injury. The patient was r eferred to medical specialist for the needful. Dr. A. Rajkhowa, Medical Speciali st, examined the victim and found crepitation in the chest. It is also in his ev idence that as per Bed Head Ticket (Ext. 4), the patient was taken to Dibrugarh on 6-1-07 at 2:50 P.M. As per the bed Head Ticket (Ext. 4) the patient was taken Dibrugarh on 06.01.2007 at 2:50 PM. Ext. 5 is the injury report.

#30. In his cross examination, he has stated that the patient was in conscious state. In his re-examination he is found saying that he examined the s ame man in causality department on 1-1-2006 at 8:30 A.M. on being produced by Po lice and on examination, he detected a sharp cut wound on the vertex, size of sa me being 3 cm x 1 cm x 1 cm. In his further cross-examination, he has stated th at he examined the victim on 1-1-2006 on Police requisition. 31. On the other hand, the Doctor who held the post mortem examinati on at A.M.C.H., Dibrugarh was one Dr. Rupak Kr Gogoi and was examined as P.W. 4. According to the P.W. 4, on 10.01.2006, he conducted the post mortem examinatio n on the body of one Gunaram Borah in connection with Pulibar Police Station O. P. G. D. No.209 dated 01.01.2006 and his finding are as follows: External appearance:- Male dead body, average build, dark complexion, wearing a full shirt, a towel. Rigor mortis present on both upper and lower limbs. Sclera found yellowish colou r. Injury: 1) f frontal bone. Laceration (6 x 1 cm) on left side of forehead with committed fracture o No ligature mark seen on neck. Cranium and Spinal canal: Membrance: Opinion: Cause of death is coma, resulting from head injury, which is ante-morte m and caused by blunt force impact. Sub-dural hemorrhage present on whole cerebral hemisphere.

#32. The evidence of Doctors on first blast appears to be contradicto ry. This is because of the fact that while CW 1 emphatically states that he foun d a sharp cut wounds on the victim when he examined him at Jorhat, Civil Hospita l 01.010.2004, PW 4 too noticed lacerated wound on the forehead of the deceased. However, he also opines that such a wound might be caused by blunt side of the dao if it is applied to a person with huge force. Opinion, so rendered by PW4, i s suggestive of the fact that the wound in question was caused by blunt object - --- argues learned counsel for the accused / appellant. 33. Further, while CW 1 opines that clinical and CT Scan of the dece ased did not disclose any brain injury, PW 4 is heard saying that there was Sub- dural hemorrhage on whole cerebral hemisphere with committed fracture of frontal bone on the left side of the forehead meaning thereby that the cause of death o f the person, concerned, was due to head injury. It is for those reasons, the le arned counsel for the accused/appellant contends that when the cause of death as well as weapon, used in committing the crime, were not established by the prose cution, it cannot be said that the deceased died due to wound, inflicted with a dao on the head of the deceased on the night in question. 34. According to learned counsel for appellant, learned Trial Court completely overlooked such serious infirmities in the prosecution case and recor ded a verdict of guilt against the accused person holding him responsible for in flicting wound on the deceased on the night of 31st December, 2005 on further co ncluding that such a wound occasioned his death on 9th January 2006. Such a judg ment is therefore untenable in law for same not being based on truth. 35. We have given our anxious consideration to the above arguments, advanced from the side of defence having regard to the materials on record.On su ch an exercise, what we have found and that too with far too clarity is that the contradictions/inconsistencies, pointed out by the defence are quite superficia l in nature. There evidence on fundamental points is found to be consistent and clear. It becomes evident when we read the evidence of Medical Officers in betwe en the lines. In so far first inconsistency aforesaid is concerned, we have fo 36. und that it is true that PW 4, in his evidence, opines that the wound which he d etected on the cadaver of deceased on 10 th January 2006 might be caused by blun t side of the dao if it is applied to someone with huge force. But we must not o verlook the fact that the PW 4 is also heard saying that he detected lacerated w ound on the forehead of the deceased meaning thereby that such a wound was cause d by sharp object. 37. Thus, the opinion which PW 4 rendered in his cross- examination that the wound on the head of the deceased might be caused by blunt side of the dao, if it is applied with force could no way establish that wound on the head o f the deceased was caused by blunt object only, more so, when it is in the commo n knowledge that dao with its two more or less sharp edge on the blunt side may produce lacerated wound if it is applied to someone with force. Being so, we di d no see any in consistency/contradiction between the testimonies of the Doctors as far as weapon, used in committing the crime in question is concerned.

#38. Coming to second inconsistency, aforementioned, we have found th at it is true that in his evidence CW 1 has stated that clinical and CT Scan did not disclose any brain injury of the deceased. But then, the opinion was render ed by CW 1 appears to be incomplete one since CW 1 also felt it necessary to hav e an X-Ray of the skull of the victim to come to a clear finding regarding the w ound which the later sustained on his head. As same was not done, the opinion of CW 1 as far as brain injury is concerned remains inconclusive and such an incon clusive medical opinion could no way establish that the deceased did not die of head injury. 39. Such a conclusion becomes inevitable in the face of the fact tha t there is undisputable on record to show that the deceased was hale and hearty till the night when he met the most disastrous incident of his life and the fact that after being injured on the night in question, he was required to be treate d not only at Jorhat Civil Hospital but at a hospital as sophisticated as AMCH, Dibrugarh as well but only to breath his last a few days later. These are very f orceful testimonies to the effect that the wound which the deceased sustained on the night of 31.12.2005 and nothing else occasioned his death at AMCH, Dibrugar h on 09.01.2006. 40. deceased. Such an inevitable inference which we have deduced from facts on record, particularly the facts which have links to wound as well as the circums tances connected with such wound, is found to be in tune with the opinion render ed by Doctor (PW 4) who had the best opportunity to see the wound in question wi th his own eyes when he conducted the post mortem examination on the body of the In the teeth above revelations, we have no hesitation in coming to the conclusion that the wound on the forehead of the deceased was caused by s harp object and such a wound had occasioned his death on 09.01.2006. 41. It is in those backdrops; let us consider who inflicted the woun d on the head of the deceased on the night in question. We have already found th at prosecution has made a two pronged strategy to make out the charge brought ag ainst the accused person. In the first place, it presses into action, the testim onies of ocular witnesses to show that on the night in question, it is accused w ho inflicted wound on the body of deceased which required his hospitalization so on thereafter. The witnesses whose testimonies are so relied on are P.W. 1, P.W. 2 & PW 3.

#42. Secondly, it also place reliance on the dying declaration which the deceased had made before two witnesses, namely, Sri Jayanta Bora (P.W. 7) an d Sri Binoy Bora (P.W. 8). Now, we need to know how far above strategy employed by prosecution in the case under consideration takes it to the goal aforesaid a nd for this purpose, we first focus our attention on the prosecution case which is premised on the evidence of ocular witnesses. 43. In her evidence, PW 1 is heard saying that on the fateful night, they were sitting around the fire place waiting for the deceased to come home a s he went to enjoy a picnic and did not return till midnight. At about 2:30 A.M. , they heard hue and cry raised by her husband from the place of occurrence. Hea ring such cry, she along with her son and daughter rushed to the place of occurr ence. She also carried a torch light with her. 44. On arriving the place of occurrence, which is situated on the ro ad just in front of the house both the deceased and the accused (as per sketch m ap of the P.O. Ext. 6), they found her husband being attacked by the accused wit h a dao causing wounds on the head of her husband. It is also her evidence that they saw the incident in the light of torch which she carried to the place of oc currence. She is also heard saying that when she asked the accused as to why h e assaulted her husband, the accused threatened her too. 45. Such evidence rendered by PW 1 finds full corroboration from the testimonies of PW 2 & PW 3, for, these two PWs also speaks in the same tune tha t on the night in question, they came to the place of occurrence hearing hue and cry raised by their father. Arriving at such place, they found the accused assa ulting their father with a dao inflicting wounds on the head of the later. They claim to have seen the alleged incident in the light of torch which was carried to the place of occurrence by their mother. The accused even threatened them as well-------- claims P.W. 3. 46. The evidence, so rendered by P.Ws aforesaid clearly demonstrates that on the fateful night, the accused administered dao blow on the head of the deceased which required the later to take to hospital next day in the morning f or treatment and then to Dibrugarh for further treatment where he however breath ed last on 9th of January 2006. Thus, we have no hesitation in coming to the con clusion that on the night in question, it is accused Sri Biraj Bora who administ ered dao blow on the head of the deceased requiring him immediate hospitalizatio n. 47. In this connection, it may be stated that P.W. 5 and P.W. 6 were declared hostile to the prosecution. But they too are found saying that on the fateful night, they came out of their house hearing hue and cry and found P.W. 1 , P.W. 2 and P.W. 3 altercating with the accused person at the place of occurren ce. The presence of the accused person at the place of occurrence at the dead ho urs of the night in question, in the fact and circumstance in the present case, advanced, not the case of the defence, but of the persecution instead. 48. We have already found that the Doctor who examined the victim wh ile he was alive and the Doctor who examined his cadaver after his death found w ound on the head of the deceased. We have already found that the wound aforesaid was caused by sharp object. Such evidence of Doctors, particularly CW1, renders more credibility to the claim of ocular witnesses that on the night in question , the accused inflicted a blow on the head of the deceased and that such blow wa s inflicted with a dao. 49. We may note here that PWs aforesaid were subjected to thread bea r cross examination and during their cross examination, it has been suggested to them that the evidence to the effect that they saw the accused administering bl ows with a dao on the head of deceased was not divulged before the I/O during th e course of investigation. They divulged such vital information for the first ti me during the trial only. Such a conduct on the part of those witnesses, not onl y makes the testimony of the witnesses aforesaid extremely doubtful, but it thro ws the entire prosecution case to a maze of suspicion requiring this court now to overthrow the entire prosecution case. 50. Unfortunately, the above claim, advanced from the side of defenc e is found to be totally without any substance. It is true that the defence duri ng the cross examination of aforesaid P.Ws suggested that they did not divulge b efore the I.O. that they saw the alleged incident with their own eyes. But then it is also true that the defence makes no effort to confirm such alleged contrad iction from the I.O. (P.W.11) when he was examined as prosecution witness. 51. Such alleged contradictions being not brought to the notice of t he I.O. while he was examined as witness before the court, the defence forfeits its right to claim that there were some contradictions in the testimonies of pri ncipal prosecution witnesses, that such contradictions affect the credibility of those witnesses and that their evidence for being so riddled with contradiction requires this court to view such claim with suspicion.

#52. In view of above, we are of the opinion that prosecution could n ot establish that evidence of principal prosecution witnesses are riddled with c ontradictions aforementioned. The above disclosures also speak loud and clear that defence could not also establish that the principal prosecution witnesses t ried to improve their versions in each and every step of the case under consider ation. Being so, we are of the opinion that PW 1, PW 2 and PW 3 clearly establis h that on the night in question, the accused inflicted a blow with a dao on the head of the deceased which occasioned his death later. 53. We have already found that the prosecution has also relied on th e dying declaration reportedly made by the deceased to PW 7 & PW 8. On the perus al of the record, it is found that PW 7 is heard saying that when he met the inj ured at Jorhat Civil Hospital on the morning of 01.01.2006, the deceased told hi m that Biraj Borah had assaulted him with a dao. On the other hand, PW 8 also de poses that the injured told him that Biraj Borah had cut him on his head. The te stimonies of P.W. 7 and P.W. 8 on the point of deceased’s making declarations be fore them are found to be remarkably consistent on all material points. 54. In the above context, it may be stated that though these two PWs were subjected to cross examination yet defence made no effort, whatsoever, to show that the above claim of P.W. 7 and P.W.8 on the point of deceased’s making a statement in the nature of dying declaration was not true for any reason whats oever. Being so, we have no hesitation in holding that the deceased did make a s tatement in the nature of dying declaration to the PWs aforesaid on the morning of 01.01.2006 and such dying declaration only serves to show that the accused di d hit the deceased on the night aforesaid. 55. Now, the question is whether the deceased was mentally fit to ma ke a statement during the time under consideration. In this regard prosecution h as relied on the testimonies of PW 1, PW 7, PW 8 & PW 11. These PWs in their e vidence have stated that when the deceased was treated at hospital at Jorhat, he was in a position to talk. More important, PW 11 the Doctor who attended the vi ctim at Jorhat Civil hospital very specifically stated in his examination-in-chi ef as well as in his cross-examination that when deceased was treated at Jorhat he was in a conscious state. 56. Such evidence which remains totally unchallenged clearly establi shes that when the deceased made statement in the nature of dying declaration on 01.01.2006, he was mentally fit to make such statement. The testimony of the Do ctor and so also of the ocular witnesses completely supports the claim of by PW 7 & PW 8 as far as site of the wound as well as the nature thereof are concerned . Such evidence lends more assurance to the correctness of dying declaration whi ch the deceased made to the PW 7 & PW 8. 57. The defence, however, assailed the prosecution case on several g rounds which we have reproduced herein before. One of the grounds was that ther e was delay of five days in lodging the case and such delay remains totally unex plained and such a unexplained delay is forceful testimony to the fact that the case under consideration is premised not on facts but on concoction and fabricat ion only Now, let us see how far such allegation stands to reason. 58. On our careful perusal of the record, we have found that though the incident in question occurred on the night of 31.12.2005 yet the formal FIR was lodged only on 05.01.2006. In the FIR, the informant has stated that she cou ld not lodge same in time as she was busy in providing treatment to the victim w ho was her husband. However, on our further perusal of the materials on record, we have also found that soon after the alleged incident, they took the deceased to the Pulibor Police Station and on the intervention of Police, they got the vi ctim admitted at Jorhat Civil hospital. The evidence of PW 1, PW 2, PW 3 as well as the evidence of CW1 59. coupled with averment made in Ext.5, the hospital Bed Head Ticket make us positi on vividly clear. But then for the reason best known to the Police, they chose not make necessary entry in the General Diary despite information, they were giv en, disclosed the commission of a cognizable offence. However fact remains that that Police was informed about the alleged incident at the earliest possible opp ortunity to be precise, in the early hours of 1st of January, 2006. 60. However, it is a settled law that lapses on the part of Police w ould not cost the prosecution of its case unless it is shown that such lapse has caused prejudice to the accused person. In our instant case, it has not been sh own that any prejudice has been caused to the accused person for the aforesaid l apses on the part of Police for not taking action in accordance with law on rece ipt of information furnished by P.W. 1 on 01.01.2006. This clearly demonstrates that the delay in lodging the cases has properly been explained and attack mount ed on this count pale into insignificance without causing any harm to prosecutio n case. The defence also contends that the prosecution case as told in t 61. he FIR is at war with the prosecution story which PWs had depicted before the Co urt during trial and such discrepancy is so serious and so grave that it require s this Court not only to reject the testimony of those PWs but it warrants the t hrowing overboard the entire prosecution case as well. In order to ascertain the veracity of the above argument, we have carefully gone through the evidence on record. In that connection, we also peruse the decision of the Hon’ble Supreme C ourt rendered In the case of Dharma Rama Bhagare Vs. The State of Maharastra AIR 1973 SC 476 Hon’ble Supreme Court in the case of Dharma Rama Bhagare (supra) held as follows : (cid:28)7. In so far as the information lodged with the Police by Shamsuddin is concern ed both the courts below have not considered it proper to reject the testimony o n the other three eyewitnesses on the ground of variance between their statement s in court and the contents of the said information. The information report, it may be pointed out, is never treated as a substantive piece of evidence. It can only be used for corroborating or contradicting its maker when he appears in Cou rt as witness. Its value must always depend on the facts and circumstances of a given case. In the present case its value has not considered to be of much sign ificant because of the nature and circumstances of the occurrence and the extent and nature of the injuries suffered by Shamsuddin who quite naturally must have been subjected to a very severe shock. The surviving members of the family coul d not go back to their home even after the occurrence and felt compelled to trek the whole night, on foot to find shelter in the house of Gafoor at Shahpur wher e they reached the following morning. In these circumstances the contents of the FIR made by Shamsuddin have rightly not been given any importance by the trial court and by the High Court. The FIR can only discredit the testimony of Shamsud din whose evidence has not been relied upon for supporting the appellant’s convi ction. The FIR can no means be utilized for contradicting or discrediting the ot her witnesses who obviously could not have any desire to spare the real culprit and to falsely implicate the appellant. The evidence of the eye witnesses believ ed by the two courts appears to us to be free from any serious infirmity justify ing rejection. & & & &. (cid:28)

#62. On a perusal of the FIR in the light of evidence, tendered by pr incipal prosecution witnesses, we have found that it is true that the prosecutio n story as depicted in the FIR does not fully match with the story so projected by the PWs before the Court during trial. But we must not be oblivious to the fa ct that PW 1 who lodged the Ehajar stated before the Court a story which is comp letely corroborated by other two eye witnesses on all materials points they have taken care of

#63. Equally important, defence miserably fails to show any infirmity in the testimonies rendered by this P.Ws before this court. When such revelatio ns are considered, in the light of the fact that the FIR is not substantive evid ence, there cannot be any escape from the conclusion that aforesaid inconsistenc y between story as projected in the FIR and the story so told by principal PWs d uring the course of the trial is of no consequences and same could cause no harm to the prosecution case. Even if we assume for the sake of argument for a moment that the 64. re was inconsistency, so pointed out by the defence is fatal yet then it can at best affect credibility of the PW1 only, she being the author of the FIR in ques tion. Defects aforementioned no way affects credibility of other two P.Ws viz, P W2 and P.W. 3 since under law only the maker of the FIR could be confronted wit h his evidence which he rendered before the Court subsequently. 65. It is also an settled position of law that an FIR can by no mea ns be utilized for contradicting or discrediting the other witnesses. In our con sidered opinion, the testimonies of P.W. 2 and P.W. 3 coupled with evidence of Doctors, particularly C.W. 1 explicitly demonstrates that the accused inflicted the blow on the head of the deceased on the night intervening 30th December 2005 and 1st January 2006. Being so , this allegation too is found far too unequal t o the task assigned. 66. The defence also contends the prosecution case should not be bel ieved as it based on evidence of the witnesses who being the very close relative s of the deceased are perilously partisan to the prosecution. On the perusal of the record, we have found that it is true that most of the witnesses are related to the deceased. But we must not overlook the fact that incident under consider ation occurred on a wintry night in the late hours when there was no one at the place of occurrence. 67. Again, there is unquestionable evidence to show that aforesaid i ncident occurred at a place which is very close to the residences of the parties herein. When such facts are considered together with other attending circumstan ces, there cannot be any escape from the conclusion that only for PW1, PW 2, and PW 3, being related to the deceased, the evidence of those witnesses cannot be discarded, more so, when they clearly account for their presence at the place of occurrence at the time under consideration.

#68. The defence also contends that there is fundamental difference b etween opinions rendered by Doctors who are examined as witnesses in the case un der consideration. It has been alleged that they differ not only on the point o f nature of the wound but as to the cause of death as well. We have made threadb are discussion on this point and same needs no further reiteration here. Suffice it to say that there were no material contradictions/inconsistencies between th e evidence rendered by CW 1 and P.W. 4. 69. It is worth noting here that the accused while being examined U nder Section 313 Cr. P.C, claims that he came to the place of occurrence hearing hue and cry from the P.O. and found family members of the deceased breaking the ir gates, boundary facing etc. However, Rubul and Jugal Bora advised him to go t o his house and as such, he left the P.O. The accused did not probabilise the pl ea which he raised during his examination U/S 313 Cr. P.C. 70. His plea that he came to the P.O. hearing hue and cry only to wi tness their gates and boundary fencing being destroyed by family members of the deceased and his plea that he left the P.O. on being advised by Rubul Bora and J ugal Bora-- which remain far from being probabilised ---- in the fact and circum stance of the case, do not augur well to advance the cause of the defence but pr osecution instead. Rather it lends more and more support to the prosecution clai m that accused administers blows on the head of the deceased with a dao on the n ight in question. 71. What have emerged from our foregoing discussions are that on the night of 31st December, 2005, the accused inflicted a dao blow on the head of t he deceased for which he was hospitalized at Jorhat Civil hospital on 1st Januar y, 2006, wherefrom he was shifted to Assam Medical College & Hospital on 6th Jan uary, 2006 only to die there on 9th of January same year. It is also found well evident from our foregoing discussion that the deceased died due to wound inflic ted on his head on the night in question by the accused person. 72. Now, the question is if for the killing of the deceased as afore said, the accused can be held guilty of offence under Section 302 IPC. In this connection, we may refer to the decision of Hon’ble Supreme Court of India in th e case of Pulicheri A Nagaraju alias Nagaraja Reddy Vs State of AP, reported in (2006) 11 SCC 444. 73. In the aforesaid judgement, Hon’ble Supreme Court held as follows: (cid:28)The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances : (i) nature of the weapon used: (ii) whether the weapon was carried by the accused or was picked up from the spot: (iii) whether the blow is aimed at a vital part of the body : ( iv) the amount of force employed in causing injury (v) whether the act was in th e course of sudden quarrel or sudden fight or free for all fight: (vi) whether t he incident occurs by chance or whether there was any premeditation ; (vii) whet her there was any prior enmity or whether the deceased was a stranger : (viii) w hether there was any grave and and sudden provocation, and if so, the cause for such provocation : (ix) whether it was in the heat of passion: (x) whether the p erson inflicting the injury has taken undue advantage or has acted in a cruel an d unusual manner: (xi) whether the accused dealt a single blow or several blows. The above list of circumstances is not exhaustive and there may be several oth er special circumstances with reference to individual cases which may throw ligh t on the question of intention. Reverting to our case, we have found that the incident in questi 74. on occurred at the dead of night and it occurred on the road just in front of th e house of the accused as well as of the deceased. There is absolutely no evide nce on record to show that the accused way laid the deceased at the place of occ urrence on the aforesaid night. Quite contrary to it, the evidence rendered by P W5 and PW 6 suggests that on returning from picnic at dead of night, the decease d might have raised hue and cry in front of the houses of the parties.

#75. Their evidence also strongly suggests that on returning from p icnic at dead of night, the deceased might have scolded the accused and his fami ly members over some dispute they have since before and in all probabilities, it must have provoked the accused to come over to the place of occurrence armed wi th a dao. These again suggest that the accused came to the place of occurrence without any premeditation.

#76. It is equally important to note that there are materials to show that the accused had ample opportunity to inflict more and more blows on the de ceased on the night aforesaid as no one was around the deceased when the accused attacked the later.

#77. These revelations which we have catalogued hereinbefore when re ad together clearly demonstrate that the accused caused the death of deceased, ( 1) not with the intention of causing his death or (2) not with the intention of causing such bodily injury as he knew to be likely to cause his death or (3) no t with the intention of causing such bodily injury which is sufficient in ordina ry course of nature to cause his death of the deceased or (4) not with the knowl edge that his act was so imminently dangerous that it must in all probability ca used the death of aforesaid person. But then, such revelations are testimonies to the fact that in i 78. nflicting the wound on the body of the deceased on the night in question, the ac cused had the knowledge that by such act he was likely to cause the death of dec eased. Being so, he is clearly guilty of offence of culpable homicide not amoun ting to murder requiring this Court to hold him guilty of offence under Section 304 Part II of the IPC. 79. Accordingly, the accused/appellant stands convicted under Sectio n 304 Part II IPC and is sentenced to suffer imprisonment for seven years and al so to pay a fine of Rs. 5,000/- in default RI for another six months. The Jud gment impugned accordingly stands modified to the extent stated above. Return the LCR. 80. 81. In view of the provision prescribed by Section 357(A) Cr.P.C. th e victim or his/her dependents are entitled to get compensation for rehabilitati on in appropriate cases. Therefore, for the sake of brevity and in the light of our discussions, made in Criminal Appeal No.93(J)/2005 (disposed on 22.12.2011), with regard to the victim compensation as provided by Section 357(A) Cr.P.C., w e make the following directions:- A. As an interim measure an amount of Rs.50,000/- shall be deposited by the Stat e Government with the District Legal Services Authority of Jorhat District withi n a period of two months from this date. The District Legal Services Authority, on receipt of the said money, shall make an enquiry to ascertain as to whether, there is dependent(s), who suffered loss and injury as a result of death of the deceased and if such dependant(s) or legal representative(s) need any rehabilita tion. B. Upon such enquiry, if it is found that the dependent(s), if any, need rehabil itation, then the District Legal Service Authority shall initially release the s aid interim amount and thereafter direct payment of adequate compensation, as ma y be prescribed by the scheme to the prepared by the State Government. C. It is made clear that if the District Legal Services Authority, after due enq uiruy, arrives at the findings that there is no dependent(s) or that the dependa nt(s) of the deceased/victim does not required any rehabilitation, then the Dist rict Legal Services Authority, shall refund the said amount of Rs.50,000/- witho ut delay, in favour of the State Government. 82. Let a copy of this judgment and order be furnished to Mr Z Kamar , learned Public Prosecutor and the Chief Secretary to the Govt. of Assam, for d oing the needful.