Sanjib Bhumij vs The State Of Assam And Anr
2022 Latest Caselaw 3906 Gua

                                                                      Page No.# 1/16

GAHC010208312021




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                Case No. : Crl.A./208/2021

            SANJIB BHUMIJ
            S/O LATE MOHENDRA BHUMIJ, R/O VILL- NO. 5 THURAJAN, P.O. AND P.S.-
            BOGIJAN, DIST-GOLAGHAT, ASSAM, PIN-782490



            VERSUS

            THE STATE OF ASSAM AND ANR.
            REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM

            2:SMTI. BABLI SINGH BHUMIJ
             D/O LATE DILIP SINGH BHUMIJ
             R/O VILL- NO. 5 THURAJAN GAON
             P.O. -BOGIJAN
             P.S.-BOGIJAN
             DIST-GOLAGHAT
            ASSAM
             PIN-78249

Advocate for the Petitioner   : MS S SHARMA (LEGAL AID COUNSEL)

Advocate for the Respondent : PP, ASSAM




                                  BEFORE
                  HONOURABLE MR. JUSTICE N. KOTISWAR SINGH
               HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND

                                        JUDGMENT

Date : 29-09-2022

(Susmita Phukan Khaund, J) Page No.# 2/16

Heard Ms. S. Sharma, learned Legal Aid Counsel for the appellant. Also heard Mr. D.

Das, learned P.P. for the State of Assam.

2. This appeal is preferred by the accused-appellant Shri Sanjib Bhumij (hereinafter

referred to as the accused) with prayer to set at naught the Judgment & Order dated

25.06.2021 of the Sessions Judge in Sessions Case No. 202/2013. In this case the accused

was convicted and sentenced to Imprisonment for Life under Section 302 of the Indian Penal

Code (IPC for short) and to pay a fine of Rs. 20,000/- with default stipulation.

3. The investigation was set in motion by an FIR lodged by Smt. Babli Singh Bhumij (the

informant in short) which unfolds that on 05.08.2014 at about 9 PM, Babli's maternal uncle,

i.e. the accused assaulted his elder brother Ratan Bhumij with lathi, knife and dao in front of

his courtyard and caused his death. Thereafter the accused took the body of Ratan Bhumij

(hereinafter referred to as the deceased) inside the house. At the time of the incident Chhat

Narayan Puja was being observed in the house of the deceased. The accused also assaulted

Sundarsai Bhumij who had come to attend the puja and thereafter the injured fled from the

place of occurrence.

4. On receipt of the FIR, the Officer In-charge of Golaghat P.S. registered a Golaghat P.S.

Case No. 612/2013 corresponding G.R. Case No. 1937/2013, under Section 302/307 IPC and

entrusted S.I. Jatin Dahdhora with the investigation, but vide Order of the Chief Judicial

Magistrate, dated 08.10.2013, the case was transferred to Bokajan P.S. The I/O of Bokajan

P.S. investigated this case and finally laid charge-sheet against the accused under Section

302/307/323 IPC.

5. At the commencement of trial, a formal charge under Section 302/307/323 IPC was Page No.# 3/16

framed and read over and explained to the accused, who abjured his guilt and claimed innocence.

6. With a view to connect the accused with the crime, the prosecution adduced the evidence of 7 witnesses and exhibited various documents. The witnesses were cross- examined. The statement of the accused under Section 313 of the Code of Criminal Procedure (Cr.P.C. for short) depicts a plea of self-defence. The accused has stated that as he was attacked by the deceased and PW-1, he had to defend himself and this may have caused the injuries sustained by the deceased as well as PW-1.

7. The learned counsel for the accused, Ms. S. Sharma laid stress in her argument that this case is sans evidence of eyewitnesses and all the witnesses are interested witnesses, being related to the deceased. It is also submitted that this case is fraught with contradictions. It is submitted that the seizure of three weapons of offence clearly depicts that the accused, who was seen by the witnesses armed with a lathi, did not use the seized iron rod and the dao. It can be well presumed that the iron rod and dao were used by the deceased and the injured person and the injuries sustained by them were the consequences of a victim defending himself in retaliation. The injured and the deceased were the aggressors in this case. It is not possible for one person to use three weapons at a go.

8. On the contrary the learned Addl. P.P. for the State emphasised in his argument that no defence wounds were sustained by the accused. The evidence is loud and clear that the accused assaulted the deceased as well as the injured person. Corroborative evidence of eye- witnesses implicate that the accused is complicit.

9. To decide this appeal, it is necessary to advert to the evidence. Sri Sundarsai Bhumij (hereinafter referred to as the injured) has testified as PW1 that the deceased was the elder brother of the accused. The incident took place at about 8/9 PM, about a year ago. The deceased called him for a Kirtan which was being held in his house. At that time, the accused who was armed with an iron rod quarrelled with the deceased. The deceased raised alarm in the accused person's courtyard, and both the accused and the deceased started quarrelling. Then he (PW-1) returned to his house, but while heading back to his house, he was assaulted from behind and he sustained injuries on his abdomen, ears and legs but he could not Page No.# 4/16

recognise his assailant, as it was dark. He could not recall who took him to the hospital. He stayed in the hospital for about three days.

PW-1 further testified that the deceased died at the time of the quarrel, but he did not know who killed the deceased.

10. This witness was declared a hostile witness on prayer by the prosecution, who was allowed to cross-examine its own witness. This witness denied that he stated before the police that :- "On the day of the incident, I went to Ratan Bhumij's house to attend Chhath Puja. Accused Sanjib Bhumij engaged in an altercation with his elder brother Ratan Bhumij on certain matter and assaulted him with stick, rod and axe in his gateway and thereafter took the dead body inside the house. As I raised an alarm, he tried to kill me too by assaulting me with an iron rod and thus causing injuries in various parts of my body. Fortunately, I could manage to escape and took treatment in Golaghat Civil Hospital. The accused killed Ratan in presence of me."

The statement of this witness under Section 161 Cr.PC has been affirmed by the I/O,

Sri Dilip Saikia, who testified as PW-7.

11. PW-1 has further testified that he went to the Chhat Puja and the deceased, Maina Bhumij (PW-2) and Babli Bhumij (PW-3) were present in the puja, which was about to begin. He has denied that he has given false evidence as the accused is his maternal uncle. He (PW-

1) has admitted that the deceased died as a result of the assault.

12. Smt. Maina Bhumij is the daughter of the deceased. She has testified as PW-2 that the accused is her paternal uncle. The incident occurred at about 9 PM, about 2 years ago. A quarrel erupted between the accused and her father in front of the accused-person's house. At that time, a puja was also being observed in their house (PW-2's) and at that time she was in the house. Around 9 PM Sundarsai Bhumij (PW1) came to their house. Initially a quarrel erupted between her uncle and Sundarsai Bhumij (PW-1). Then her father went out and asked the accused as to why he had assaulted their guest (PW-1). Then the accused assaulted her father. As her father raised alarm, she went out of the house and saw the accused assaulting her father with a stick. When she (PW-2) reached there, the accused charged towards her and she fled from the place of occurrence. She went to Sundarsai Page No.# 5/16

Bhumij's house and informed his family members and she stayed in his house that night. On the following morning, she returned to her house and found her father's body, lying lifeless. Later the police arrived and held inquest in her presence and she affixed her signature on the inquest report. She identified her signature on the inquest report as Exhibit-1(1).

13. PW-2 has further testified that the police seized a bamboo stick, an iron rod and an axe from the accused-person's house vide seizure list Exhibit-2 and she identified her signature on seizure list as Exhibit-2(1). PW-1 has testified that on the day of the incident, the accused, brandishing an axe, had threatened them.

14. PW-2's evidence also reveals that they shared the same courtyard with the accused. At the time of the incident the accused was hurling abuses over the issue of partition of land. In her cross-examination PW-2 has denied that her father (deceased) was armed with a lathi and he went ahead to assault the accused and he also accosted the accused. She has claimed that her father was unarmed.

15. Smt. Babli Singh Bhumij, PW-3 has testified that both the accused and the deceased are her maternal uncles. The incident occurred in the previous year, at about 7/8 PM. She could not recall the date. Her house is near the house of the accused and the deceased. Puja was organised in the deceased's house. She was at home, when she heard a commotion and she came out of her house and witnessed the accused hurling abuses. Then she heard Sundarsai Bhumij, who came to attend puja shouting that "someone is being assaulted." She heard from the people that the accused had killed her uncle Ratan (deceased). On the following day, the police came to the place of occurrence and seized one stick, one iron rod and one axe vide Exhibit-2. She has identified her signature as Exhibit-2(2). She has proved the FIR as Exhibit 3 and her signature on the FIR Exhibit-3(1). She has admitted that she has studied only upto Class-VIII.

16. This witness was also declared a hostile witness on prayer by the prosecution, and the prosecution was allowed to cross-examine its own witness. This witness has denied that she has mentioned before the I/O that :- " On the day of the incident, the accused killed his elder brother Ratan Bhumij by assaulting him with bamboo stick, iron rod and axe in front of his courtyard and thereafter put the dead body inside the house. Thereafter, he also attacked Page No.# 6/16

Sundarsai Bhumij, who came to attend the puja in my maternal uncle's house, with an iron rod and attempted to kill him. Out of fear we could not do anything. Sundarsai Bhumij fled the scene in injured condition. I witnessed the incident." However, the I/O (PW-7) has affirmed that PW-3 has given the afore-mentioned statement (U/S 161 Cr.P.C.).

17. In her cross-examination by the defence, PW-3 has testified that the FIR was not read over to her and she did not know what was written on the FIR. She has testified that she did not witness the incident and she does not know who was the aggressor. She has stated in her cross-examination that she did not know from whom the articles were seized.

18. Smt. Masum Bhumij, PW-6 is the daughter of the deceased. PW-1 is also related to her as he is her cousin. She has testified that the incident occurred at about 7 PM, in the Assamese month of Bhada (August/September) in the year 2013. The incident took place in front of the accused-person's house. At that time, she was inside her own house, situated near the accused-person's house. She heard her father screaming and went out and saw the accused assaulting her father with a wooden stick. She was terrified and she fled from the spot. On the following day she returned home and saw her father's body. She heard that the accused also caused injuries on Sundarsai Bhumij (injured). Her elder sister Babli Bhumij lodged the ejahar (FIR). She also noticed injuries on different parts of her father's body. The police held inquest in her presence and she affixed her signature on the inquest report. She has proved her signature as exhibit-1(2). She has further testified that the police seized one bamboo stick in connection with this case vide exhibit-2 wherein Exhibit-2(2) is her signature. She has denied the suggestion that her father was armed with a dao and an axe and was about to assault the accused.

19. The evidence clearly depicts that Maina Bhimuj (PW-2) and Masum Bhumij (PW-6) are sisters, while the informant PW-3 is their cousin. As the accused and the deceased are brothers, all the witnesses are related. There is overwhelming evidence that prior to his death the deceased was brutally assaulted by the accused. PW-1 has categorically stated that the deceased died as a result of the assault. The incident occurred while the deceased was observing Chhat Puja in his house on the fateful night at about 8/9 PM. The evidence of PW-1 also depicts that when he went to attend the Chhat Puja, Ratan, Maina Bhumij (PW-2) and Babli Bhumij (PW-3) were also present in the house of the deceased. The puja was attended Page No.# 7/16

by few people and was about to commence. This evidence of PW-1 is substantiated by the evidence of Maina Bhumij, PW-2. She has indeed testified that a puja was organised in their house and a quarrel erupted between her father and the accused because her father confronted the accused when he assaulted Sundarsai Bhumij (PW-1), who was also attending the puja. PW-1's evidence depicts that the accused was armed with an iron rod while he was quarrelling with the deceased. Although he tried to screen the accused from punishment, by not divulging about the incident, yet his examination-in-chief clearly depicts that on the day of the incident when Chhat Puja was being observed in the house of the deceased, a quarrel broke out between the accused and the deceased, and the accused was armed with an iron rod. The seizure list marked as Exhibit-2 depicts seizure of this iron rod. PW-1 has also testified that the deceased died as a result of the assault.

20. The latter part of the incident is revealed by the evidence of PW-2. The evidence of PW-1 and PW-2 clearly depicts that PW-2 (Maina) was present in her house at the time of the incident. She has clearly witnessed the incident. Her evidence clearly depicts that at the time of the puja, at around 9 PM, PW-1 was in her house and a quarrel erupted between her father and the accused, when accused assaulted PW-1. The incident took place in front of the accused-person's house and when her father raised alarm, she went out of their house and she witnessed the accused assaulting her father with a stick. When she went towards her father, the accused came charging towards her and she fled from the place of occurrence and took shelter in Sundarsai Bhumij's house. On the following morning, she returned home and found her father's body lying lifeless.

21. The evidence of PW-2 clearly reveals that the accused was on a rampage. He assaulted her father and then charged towards her. It is also suspected that the injury sustained by PW- 1 was caused by the accused, despite the fact that PW-1 chose to conceal the name of his assailant. There is not even an iota of doubt that he (PW-1) sustained grave injuries in the same incident.

The evidence of PW-2 also depicts that the police seized one bamboo stick, iron rod and an axe.

22. It would be apt to emphasise that the accused was last seen relentlessly assaulting the Page No.# 8/16

deceased with a stick and thereafter charging towards PW-2.

23. On the aspect of hostile witnesses, it would be apposite to rely on the decision highlighted by the Trial Court while deciding this case. The Hon'ble Supreme Court in Lahu Kambalkar Patil v. State of Maharashtra (2013) 6 SCC 417, discussing the various authorities on the reliability of the evidence of hostile witnesses has held as follows:

"6. It is settled in law that the evidence of a hostile witness is not to be rejected in toto. In Rameshbhai Mohanbhai Koli and Others Vs. State of Gujrat [JT 2010 (11) SC 605 : 2011 (11) SCC 111], reiterating the principle, this Court has stated thus:

"16. It is settled legal position that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent that their version is found to be dependable on a careful scrutiny thereof. (Vide Bhagwan Singh Vs. State of Haryana [1976 (1) SCC 389], Rabindra Kumar Dev Vs. State of Orissa [1976 (1) SCC 389], Rabindra Kumar Dev Vs. State of Orissa [1976 (4) SCC 233], Syed Akbar Vs. State of Karnataka [1980 (1) SCC 30] and Khujji Vs. State of M.P. [JT 1991 (3) SC 151].

17. In State of U.P. Vs. Ramesh Prasad Misra [JT 1996 (2) SC 393(2)] this Court held that evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused but required to be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence can be relied upon. A similar view has been reiterated by this Court in Balu Sonba Shinde Vs. State of Maharashtra [JT 2002 (6) 611], Gagan Kanoja Vs. State of Punjab [8], Radha Mohan Singh Vs. State of U.P.[9], Sarvesh Narain Shukla Vs. Daroga Singh [10] and Subbu Singh Vs. State [11].

17. Recently, in Bhajju alias Karan Singh Vs. State of Madhya Pradesh [JT 2012 (3) SC 377], a two-Judge Bench, in the context of consideration of the version of a hostile witness, has expressed thus:

"Normally, when a witness deposes contrary to the stand of the prosecution Page No.# 9/16

and his own statement recorded under Section 161 Cr.P.C., the prosecutor, with the permission of the Court, can pray to the Court for declaring that witness hostile and for granting leave to cross-examine the said witness. If such a permission is granted by the Court then the witness is subjected to cross- examination by the prosecutor as well an opportunity is provided to the defence to cross-examine such witnesses, if he so desires. In other words, there is a limited examination-in-chief, cross-examination by the prosecutor and cross- examination by the counsel for the accused. It is admissible to see the examination-in-chief as well as the cross-examination of the said witness insofar as it supports the case of the prosecution."

[Emphasis added]

18. In the case of Sidhartha Vashisht alias Manu Sharma Vs. State (NCT of Delhi) [JT 2010 (4) SC 107 : 2010 (6) SCC 1] , while discussing about the evidence of a witness who turned hostile, the Bench observed that this evidence to the effect of the presence of accused at the scene of the offence was acceptable and the prosecution could definitely rely upon the same"

24. In the instant case that part of the evidence-in-chief of the hostile witnesses, PW-1 and PW-3 in so far is relied upon, which has supported the case of the prosecution. The evidence of PW-1, 2, 3 and 6 clearly depicts that a fight erupted between the accused and the deceased, on the fateful evening. The evidence-in-chief of PW-1 depicts that accused was armed with an iron rod at the time of the incident. The evidence of PW-3 depicts that she saw the accused accosting the deceased at the time of the incident. This case is thus bolstered by substantive as well as circumstantial evidence. The seizure-list depicts that one iron rod, an axe and one bamboo stick were seized in connection with this case by the I/O, PW-7. The FIR, Exhibit-2 lodged by PW-1 depicts that the accused assaulted the deceased with lathi, knife and dao. Although PW-3 has denied knowledge about the contents of the FIR, yet, the seizure list proved as Exhibit-2 depicts seizure of lathi, iron rod and axe. Thus it is amply clear the three weapons of offence have been seized in connection with this case. Differences in describing the three weapons of offence are indeed minor contradictions which does not cause a dent in the evidence.

Page No.# 10/16

25. The incident occurred at night and the accused was found dead in the morning. There is cogent and corroborative evidence that the accused, PW-1, PW-2, PW-3 as well as the deceased were present during Chhat Puja, which was observed in the house of the deceased. At the time of the Chhat Puja Kirtan, the accused attacked the deceased which was witnessed by PW-2 and PW-6. PW-1 has mentioned in his evidence-in-chief that the accused-appellant was armed with an iron rod when the quarrel broke-out between the accused and the deceased. He has also testified that the deceased died as a consequence of the assault. The evidence of the medical officers who performed post-mortem and who examined the injured person clearly depicts that the deceased and the injured person sustained injuries at the time of the incident and the accused was seen by PW-2 and PW-6, while he was assaulting the deceased. PW-2 and 6 are eye witnesses.

26. As the accused was not found guilty of offence under Section 307/323 IPC for voluntarily causing hurt on PW-1 and attempting to commit murder of PW-1, the evidence of the Medical Officer who examined PW-1 is not discussed in this appeal. The evidence of the Medical Officer Dr. Chakradhar Barman, PW-4, who conducted the autopsy depicts that on 06.08.2013, he conducted the autopsy on the body of the deceased Ratan Bhumij with reference to Case No. 612/2013 and found the following :

"A young male dead body of dark complexion, stout and healthy of about 40 years of age.

Injuries :

Bruise over chest of right side.

Cut injury over skull.

Both lower limbs are deranged as there was compound fracture on both lower limbs.

Cranium, and Spinal Cord :- there was a cut injury over skull, size 5 Cm. In length, injury touches the skull bone.

Membrane, brain congested.

9th, 10th, 11th, and 12th Nos. of ribs of right side were having fractures, bruises over chest present.

Page No.# 11/16

Pleurae, Larynx, Trachea and Jungs were congested.

Muscle bones and joints :- there was cut injury over left leg, middle of tibia.

Injury present over forehead, size - 5 Cm. in length and 1 Cm in depth.

Injury over face :- around left mandible and bone was injured.

Fracture of left tibia and fibula :- at the level of proximal to knee joint.

Fracture of right both tibia and fibula at middle point.

Fracture of right mandible.

Fracture of skull bone (parietal bone), fracture of 9 th, 10th, 11th and 12th ribs on right side, multiple bruises all over the body."

27. A careful scrutiny of the evidence of PW-4 clearly depicts that the deceased was bludgeoned to death. He sustained cut injuries as well as fractures, including bruises. The bruises over his chest can be caused by a stick and cut injuries over scalp can be caused by both sharp weapon as well as blunt object. The compound fracture on both lower limbs can be caused by blunt object. The ribs were also fractured and cut injuries were detected over the left leg, middle of tibia. One injury was also detected on the forehead of size 5 Cms X 1 Cm, and right mandible was fractured.

Fractures were detected on the parietal bone and fractures of 9 th,th 10th, 11th and 12th ribs were also detected with multiple injuries over the body.

28. There is not even an iota of doubt that the injuries sustained by the deceased were inflicted by the accused. The accused was last seen assaulting the deceased and his presence in the place of occurrence has been proved by the evidence of PW-1, 2, 3, 4 and 6. Nothing material could be elicited through the cross-examination of the witnesses.

29. The Medical Officer, PW-4 has stated in his cross-examination that the injuries sustained by the deceased may be caused by blunt object. Injuries sustained on the head touching the brain matter may have been caused by sharp object.

30. On the aspect of sharp cut injuries caused by blunt object, we would like to refer to the decision of the Hon'ble Supreme Court in Kailash v. State of M.P. reported in (2006) 11 SCC Page No.# 12/16

420 wherein it has been observed as under:

"21. The place of injury was on the parietal region. In certain situations, the wounds, produced by a blunt instrument, may simulate appearances of an incised wound. It was so stated in Glaister and Rentoul's Medical Jurisprudence and Toxicology in the following terms:

"Under certain circumstances, and in certain situations on the body, wounds produced by a blunt instrument may simulate the appearances of an incised wound. These wounds are usually found over bone which is thinly covered with tissue, in the regions of the head, forehead, eyebrow, cheek, and lower jaw, among others. When such a wound exposes hair bulbs at its edges, it is possible by examining these carefully to decide whether they have been cut or crushed and thus establish whether the wound was caused by a sharp or blunt instrument. As a rule, especially in the living subject, a wound produced by a blunt instrument will disclose some degree of bruising and swelling of the edges and the deeper tissues will be less cleanly severed than when divided by a sharp-cutting instrument."

(Emphasis is added)

31. Referring to the case of Shankaria v. State of Rajasthan, reported in (1978) 4 SCC 453, the Supreme Court, in Kailash (supra), has held that :- "38. After a careful examination of the statements of the doctors, the learned Judges of the High Court came to the conclusion that the injuries found on Swaran Singh and Jarnail Singh could be caused with the Ghota (Article

1). The injuries on the victims were located on the head. The scalp over the head is taut. Even an injury caused with a blunt weapon on the head, ordinarily produces a gaping wound, the edges of which if not carefully examined under a magnifying lens, can be mistaken for those of an 'incised' wound. This was the mistake committed by Dr. Jaswant Singh and he had courage enough to admit and correct it in further examination before the High Court. Thus considered, there was no contradiction between the confessional statement and the medical testimony in regard to the nature of the inflicting weapon. Rather, the medical evidence taken as a whole, including the statement of Dr. Jaswant Singh before the High Court, lends valuable support to the confession (Ext.P-39) inasmuch as it is stated therein that the injuries to the victims were caused with the Ghota (Article 1)"

32. The Text Book of Medical Jurisprudence and Toxicology (24 th Edition, 2011, Page 528), Page No.# 13/16

which we have reproduced below reads as:

"Incised Looking Wound.-

Occasionally, on wounds produced by a blunt weapon or by a fall, the skin splits and may look like incised wounds when inflicted on tense structures covering the bones, such as the scalp, eyebrow, iliac crest, skin, and perineum, or by a fall on the knee or elbow when the limb is flexed.

But the edges of such wounds will be found irregular with a certain amount of bruising, and small strands of tissues may be seen at the bottom bridging across the margins, if examined with a hand lens.

In the case of wounds of the scalp, the hair bulbs will be found crushed, if they are inflicted with a blunt weapon, but will be found cut and forced into the wound, if produced by a cutting weapon like a heavy edged axe or a chopper."

33. After referring to the decision of the Hon'ble Supreme Court and on the 24 th edition of the Modi's Medical Jurisprudence and Toxicology, it is held that this instant case is also a case regarding evidence of assault by a blunt object which caused sharp injuries as well as other injuries on the body of the deceased. It is held that both PW-2 and PW-6 witnessed that the accused assaulted the deceased with a blunt object-stick in this case. It has also been held in the foregoing discussions that the deceased died as a result of the injuries inflicted by the accused. The cut injury over the scalp, of around 5 cm was caused by none other than the accused, who was seen armed with a lathi as well as an iron rod. It is apt to reiterate that PW-1 saw the accused holding a rod, when he accosted the deceased. He has also stated that the deceased died because he was assaulted by the accused. The cause of death has been described by the Medical Officer as a consequence of multiple homicidal injury and head injury caused to the parietal bone of the deceased. This opinion has been given by the Medical Officer (PW-4) vide the autopsy report marked as Exhibit-4.

34. The defence then took the plea of self-defence. The statement of the accused under Section 313 Cr.P.C. depicts that he acted in self-defence to protect himself and his family. He stated that he had a bamboo stick while the deceased and the injured person were armed with axe, iron rod and other pointed weapons. They assaulted him and he had to hit back to Page No.# 14/16

save himself without any intention to hurt or kill anybody.

35. It is held that no evidence was adduced by the accused in defence. His statement under Section 313 has not been substantiated. The suggestion given by the defence to PW-2 and PW-6 that the deceased was armed with a rod, dao and an axe has been denied. The accused took the benefit of being armed with a less deadlier weapon i.e. the stick when he gave his answers to the incriminating circumstances against him under Section 313 Cr.P.C. It is apt to reiterate that cut injuries on surface over scalp or forehead can also be caused by a blunt object.

36. The argument of the learned counsel for the appellant that the witnesses are related to the deceased and are inimical witnesses, holds no water. The evidence clearly reveals that the witnesses are related to both the accused as well as the deceased. The evidence of such a witness cannot automatically be discarded by levelling the witness as interested. It is worthy to note that there is a distinction between a witness who is related and an interested witness. A relative is a natural witness. The Hon'ble Supreme Court in Kartik Malhar v. State of Bihar, reported in (1996) 1 SCC 614 has held that a close relative who is a natural witness cannot be regarded as an interested witness, for the term "interested" postulates that the witness must have some interest in having the accused somehow or the other convicted for some animus or for some other reasons". In this case at hand, merely because the witnesses are family members their evidence cannot per se be discarded. When there is allegation of interestedness, the same has to be established. Mere statement that the daughters of the deceased (PW-2 and PW-6) are likely to falsely implicate the accused cannot be a ground to discard the evidence which is otherwise cogent and credible. Relationship is not a factor to affect credibility of a witness. There is no bar in law on examining family members as witnesses. Evidence of a related witness can be relied upon provided it is trustworthy. It is held that the evidence of PW-2 and PW-6 can be given credence as the evidence is found to be reliable and trustworthy.

37. The argument of the learned counsel that the evidence of PW-6 is hearsay evidence can be safely brushed aside. As the daughter of the deceased PW-6 was present at the time of the incident, her evidence clearly depicts that she heard her father screaming and she saw the accused assaulting her father with a stick. She is indeed an eye-witness. No Page No.# 15/16

contradictions could be elicited through the cross-examination of the I/O (PW-7). No effective cross-examination of the I/O was carried out.

38. As a last resort, the accused took the plea of his right of private defence as described under Section 96 of the IPC. The learned counsel for the accused stated that as the accused acted in private defence, he has not committed an offence which was done in exercise of his right of private defence. After carefully scrutinising the evidence and the statements of the accused, it is held that the plea of private defence has not been substantiated. The statement of the accused-appellant under Section 313 Cr.P.C. will in itself not exonerate the accused. There is no evidence of sudden provocation. The accused acted without any provocation. He had no defence wounds.

39. We therefore record our concurrence to the decision of the learned Trail Court. It is held that the appeal is devoid of merits and is hereby dismissed. The judgment and order of conviction passed by the learned trial court is upheld, with a slight modification. Period of detention of the accused during investigation or trial will not be set off with his custodial sentence. In this instant case appellant is not entitled to benefit under Section 428 Cr.PC.

40. We have noted that the learned Trial Court did not pass any order for payment of compensation to the victim or his dependents as contemplated under Section 357A of the Cr.P.C. There is a scheme prepared by the State of Assam under sub-section 9 of Clause 5 of the Assam Victim Compensation Scheme, 2012 as notified on 05.03.2016, which has also been revised on 01.02.2019. Let the State verify if the deceased had left any dependent or legal heir and if so, let the compensation fixed by the State in terms of the aforesaid notification dated 01.02.2019 be paid to the dependent(s) or legal heirs of the victim after making necessary verification. The aforesaid exercise will be carried out in association with the Golaghat District Legal Services Authority at the earliest and preferably within a period of 3(three) months from the date of receipt of a copy of this order. A copy of this order be furnished to the Member Secretary, Assam State Legal Services Authority as well as the Secretary, Dhemaji District Legal Services Authority to assist the State authorities in this regard.

41. Ms. S. Sharma, learned Amicus Curiae, who has ably assisted this Court in conducting Page No.# 16/16

this appeal, may be paid the honorarium at the rate fixed as per rules.

JUDGE JUDGE

Comparing Assistant