Sri Madan Panika vs The State Of Assam And Anr
2025 Latest Caselaw 2368 Gua

Gauhati High Court

Sri Madan Panika vs The State Of Assam And Anr on 28 January, 2025

Bench: Kalyan Rai Surana, Soumitra Saikia

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GAHC010290302019




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

                                Case No. : Crl.A./454/2019

           SRI MADAN PANIKA
           S/O- SRI KONWAR DAS PANIKA, R/O- VILL.- SIALKATI, P.O. AMONI, P.S.
           SAMOGURI, DIST.- NAGAON, ASSAM.



           VERSUS

           THE STATE OF ASSAM AND ANR
           REP. BY THE P.P., ASSAM

           2:SMT. BHAGYABATI GOUR
            W/O- LATE TANKESWAR GOUR
            R/O- VILL.- SIALKATI
            P.O. AMONI
           P.S. SAMOGURI
            DIST.- NAGAON
           ASSAM

Advocate for the Petitioner : MR. A M BORA, ALHAJJ I UDDIN,S AHMED,MR. M A
LASKAR,MR. D K BAIDYA,MS P DASGUPTA

Advocate for the Respondent : PP, ASSAM,




            Linked Case : CRL.A(J)/59/2020

           ANIL GOUR
           NAGAON
           ASSAM.
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             VERSUS

            THE STATE OF ASSAM
            REP. BY PP
            ASSAM.


            ------------

Advocate for : MR. A DHAR AMICUS CURIAE Advocate for : PP ASSAM appearing for THE STATE OF ASSAM

BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA HONOURABLE MR. JUSTICE SOUMITRA SAIKIA

Dates of hearing : 24.10.2024 Date of Judgment &Order : 28.01.2025

JUDGMENT &ORDER (CAV) [Soumitra Saikia, J.]

These Criminal appeals are directed by two accused persons assailing the Judgment dated 27.09.2019 passed by the Addl. District and Sessions Judge No. 2, Nagaon, Assam in Sessions T(1) Case No. 18(N)/2016 arising out of G.R. Case No. 352/14. The accused persons were tried for offences under Sections 302/34 of the IPC in connection with Samaguri P.S. Case No. 126/2014. By the said Judgment, both the accused persons are sentenced to suffer imprisonment for life and to pay fine of Rs. 10,000/- each and in default of payment of fine, to suffer rigorous imprisonment for three months under Section 302/34 of the IPC.

2. An FIR was lodged by the informant, one Smti Bhagyawati Gour at the Page No.# 3/30

Samaguri Police Station on 26.05.2014, alleging that the accused persons had entered their house on 25.05.2014 at about 09.30 PM and had assaulted her husband with 'axe' and murdered him. When she and her daughters tried to prevent the assault, they were also assaulted and were injured in the process. The said FIR was registered as Samaguri P.S. Case No. 126/14 under Sections 302/34 of the IPC and pursuant to the police completing the investigation, submitted the charge-sheet against the four accused persons named in the FIR. Accused Joy Sing Gour and Kamala Gour were declared proclaimed offenders and the case proceeded against the remaining two (2) accused namely Anil Gour and Madan Panika.

3. The prosecution had examined as many as twelve (12) witnesses to prove the charges levelled against the accused persons. The accused were also examined under Section 313 of the Cr.P.C., where their plea was of total denial. Consequently, the learned Addl. District and Sessions Judge No. 2, Nagaon after consideration of the entire materials and the evidence adduced, passed the judgment under appeal convicting both the accused guilty of the offences alleged under Section 302/34 of the IPC. The accused persons namely Madan Panika and Anil Gour were accordingly sentenced to suffer imprisonment for life and to pay a fine of Rs. 10,000/-, and in default of the payment of fine, to suffer rigorous imprisonment for three months under Sections 302/34 of the IPC.

4. The learned counsel appearing for the appellants submits that the P.W.-1 and P.W.-2 alleged that the incident took place around 09.00 PM to 09.30 PM on 25.05.2014. However, as per the evidence of P.W.-12 namely the Investigating Officer, the P.W.-1 lodged the verbal information at 06.20 AM on 26.05.2014 before the Shivastan Police Outpost where the G.D. Entry was made. It is Page No.# 4/30

submitted that the FIR was lodged after the delay of nine (9) hours whereas the Outpost is located within 2 to 3 Kms and consequently there is no explanation as to why such a delay had occurred in filing the FIR.

5. Referring to the statement made before the Police under Section 161, the learned counsel for the appellants submits that the original statement before the Police immediately after the lodging of the FIR made by the P.W.- and P.W-2 under Section 161 Cr.P.C, will reveal that these subsequent statements made as P.W-1 and P.W-2 before the Court during the trial was sufficient improvement in the statement made by P.W-1 and P.W.-2 as compared to the statements earlier made under Section 161 Cr.P.C. He therefore submits that the evidence of P.W-1 and P.W.-2 is not wholly reliable to return a finding primarily on their evidence to arrive at the conclusion for conviction of the accused. He further referred to the evidence of P.W-1 and P.W.-2 to submit that the behavior of the P.W. -1 and P.W.

-2 appears to be unnatural as immediately after the incident they went to the house of the neighbour namely one Keria and returned to the place of occurrence only in the morning. He further submits that the submissions which were recorded by the Magistrate under 164 of the P.W.-1 and P.W.-2 were not proved during the trial as is required under the law. It is further submitted that reading of the evidence reveals that there were some land dispute going on betweenthe family of the deceased and the accused persons. Therefore, due to enmity, the deceased and his family members had no good relationship with the family members of the accused persons. That apart, it also evident from the evidence adduced that the deceased was a habitual drunkard and used to create hue and cry. The learned counsel for the appellant also referred to the evidence adduced by the P.W-5, the Gaonburah as well as the post mortem report to show that as per the evidence of the Gaonburah, the injury appears to Page No.# 5/30

have been caused by the handle of an 'axe' and the postmortem report reflects several linear abrasions, bruises in different parts of the bodies, two cut injuries in the occipital region (back side of the neck), amongst others. According to the Doctor conducting the post-mortem namely P.W-9, the time of death was over two (2) days as sign of petrification had started. The learned counsel for the appellant therefore submits that as per the FIR, the time of the incident is 09.00 to 09.30 PM on 25.05.2014 and the postmortem was conducted on 26.05.2014 at 12.30 PM which is after 27 hours of death. Referring to the evidence of the Doctor regarding the injury sustained by P.W-1 and P.W.-2 alleged to have been sustained while trying to prevent the assault on the deceased on 26.05.2014 at about 09.30 PM. According to the evidence of the doctor, it is submitted that the age of the injury is about 6 (six) hours. If that be so then it is clear that the injury sustained on the body of the P.W.-1 and P.W-2 was well after the incident had occurred. The learned counsel for the appellant further submits that from the evidence adduced by P.W-12 namely the I.O., the inquest was done by the Officer-in-Charge, Samaguri Police Station and consequently there is no evidence to suggest that the inquest was done following the mandate of Section 174 Cr.P.C. The weapon seized were a 'lathi' and a 'rod' from the place of occurrence but no 'axe' was recovered. He therefore submitted that non- recovery of the weapon of assault from the place of occurrence and failure to send it for clinical examination is detrimentalto the prosecution case and that apart the inquest report is not a part of the paper book. He also refers to the medical report to submit that the scalp of the deceased was healthy and thereby there was no injury on the head of the deceased as projected by the prosecution witnesses. It is submitted that in view of the medical evidence revealing that there is no injury on the scalp, the evidence adduced by P.W-1 Page No.# 6/30

and P.W-2 is contradictory to the said medical evidence and therefore the same was wholly unreliable and ought not to have been relied upon by the learned trial Judge to arrive at the conviction of the appellants. He further submits that there is no evidence in support of the case projected by the prosecution that the appellants are also guilty of commission of offences under Section 34. No evidence was led by the prosecution to show that there was any common intention between the appellants. In support of his contention, the learned counsel for the appellant referred to the following Judgments:

1. Sripathi and Ors, Vs. State of Karnataka, reported in (2009) 11 SCC 660;

2. Dinesh and Anr. Vs. State of Haryana, reported in (2015) 17 SCC 804;

3. Sabir Hussain Barbhuya and Ors. Vs. State of Assam, reported in 2018 (1) GLT 726;

4. Kipa Sero Vs. State of Arunachal Pradesh, reported in 2005 (4) GLT 86; and

5. State of Maharastra Vs. Raju Bhaskar Potphode, reported in (2007) 11 SCC

261.

6. In conclusion, the learned counsel for the appellant submits that the impugned judgment is required to be interfered with as the learned trial Judge did not take note of the defective investigation undertaken by the prosecution as well as the delay in filing the FIR and the absence of sufficient reasons there for. Further, the inquest as required under Section 174 Cr.P.C., was not exhibited during the trial. He submits that the police officer is not authorised under Section 174 to conduct the inquest. He further submits that the case projected by the prosecution is not supported by the evidence adduced by the Doctor as it is evident to show that the death had occurred more than 48 hours. No weapons such as 'dao or an 'axe' was seized and the injury sustained were only by blunt weapon as is evident from the post-mortem report. The weapons of Page No.# 7/30

assault. as alleged. were not seized and sent for proper examination as is required under law. He submits that non-seizure of the weapon of assault is a ground for alteration of punishment under Section 304 (Part-II).

7. Mr. A. Dhar, learned counsel, who is appointed as Amicus Curiae by this Court in Crl.Appeal (J) No. 50/2020, submits that the actual assault as per the evidence was stated to have been caused by Joy Sing who is the son of Anil Gour and Kamala is his wife. However, both Joy Sing and Kamala have absconded and have not been produced before the trial Judge to face the trial.

From the evidence, there were four persons named who had assaulted the deceased. Madan Panika [appellant in Crl. Appeal 454/2019] inflicted the blow on the head of the deceased while Anil Gour [appellant in Crl. Appeal (J) 40/2020] assaulted with a 'rod'. Joy Sing Gour inserted the 'lathi' inside the mouth of the deceased and Kamala inflicted the blow with a 'dao'. He therefore submits that the fatal injuries caused during the assault were perhaps by Joy Sing and Kamala. However, these two persons have remained as absconder and have been declared as proclaimed offenders. Therefore, the evidence led by the prosecution does not support the conclusion that the present accused persons are responsible for causing death to the deceased.

8. Per contra, Mr. Bankim Sarma, learned Addl. Public Prosecutor opposed the submissions made by the counsel for the appellant as well as the amicus curiae. He submits that the evidence of P.W-1 and P.W.-2 has remained consistent. Therefore, there is no infirmity. P.W.-4 and P.W-5 had seen the injuries on the back of the head and the chest. The post mortem report conducted on the next day at 12.30 PM opines that the death occurred within 24 hours and that all the injuries are ante-mortem in nature. That apart, P.W-1 Page No.# 8/30

and P.W-2 who are wife and the daughter of the deceased and their medical reports are also available in the record. He further submits that contrary to the contentions of the counsel for the appellant, the G.D entry was made prior to lodging of the FIR and which is reflected in the judgment impugned in the present appeal. He therefore submits that there is no infirmity in the impugned judgment.The evidence has been properly appreciated, the investigation has been conducted as per procedure and the trial Judge, therefore, delivered the judgment which does not called for any interference.

In response to the inquest being conducted by the Police Officer, he submits that the Police Manual permits a police officer to conduct the inquest and therefore the inquest conducted by the Police Officer cannot be said to be contrary to the provisions of law.

9. In rejoinder, the learned counsel for the appellant reiterated his submissions that the evidence adduced by the P.W-2 regarding the accused Madan Panika, is not supported by any medical evidence of the post-mortem report. He therefore refers to the evidence of the doctor to submit that the approximate injuries sustained where within 24 hours and the time of death is over two (2) days. The learned counsel for the appellant therefore submits that the prosecution has not been able to prove that the injury sustained by the deceased besides being caused by the accused persons, led to the death of the deceased. The contradiction between the case projected by the prosecution and the evidence adduced before the Court more particularly by the medical doctor ought to have been taken note of by the trial Judge and the same not having been done, the same is contrary law and the impugned Judgment should therefore be interfered with, set aside and quashed and the accused persons be Page No.# 9/30

set free at liberty.

10. The learned counsel for the parties have been heard. The materials available in the Trial Court Records, which were called for, have been carefully. The paper book in both the appeals have been carefully perused.

11. In order to appreciate the arguments made assailing the judgment of the learned trial Judge, it would be necessary to refer to the evidences adduced during the trial.

12. The case projected in the FIR by the informant who is the widow of the deceased victim and P.W-1 is that on 25.05.2014 at around 09.30 PM, the named accused persons therein, namely (1) Sri Anil Gour S/O Bir Sing Gour, (2) Sri Joy Sing Gour @ Bala Gour S/O Sri Anil Gour, (3) Sri Madan Panika S/O Konwar Das Panika and (4) Smti Kamala Gour W/O Sri Anil Gour, had come to the house of the informant armed with ' dao' and 'axes'. They dragged the husband of the informant out of the house, felled him on the ground and killed him by assaulting him with axe. The accused persons accompanied by the Gaon Burah (village headman of Siyalkhaiti) had come to their house a few days ago and said they would buy the plot of their land and forcefully obtained signature and took possession of two (2) kathas of land. The FIR further stated that when the informant raised hue and cry, they also assaulted the informant by pressing her neck and showing her 'dao'. When the younger daughter of the informant SmtiHarila Gour begged the accused persons by falling on their feet, they said that they had come after obtaining permission from the Gaonburah and when they tried to kill her daughter, she fled from there.

The said FIR was received and registered at the Sibasthan Police Outpost with G.D. Entry No. 424 dated 26.05.2014 and forwarded the same to Officer-in-

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Charge, Samaguri Police Station for registering the case under the proper section of law. The case was subsequently received and registered as Samaguri P.S. Case No. 126/2014 under Sections 302/34 of the IPC. After the I.O. was assigned, the investigation was commenced in the matter. After due completion of the investigation, the charge-sheet was submitted and charges under two heads were framed by the Court of Addl. District and Sessions Judge No. 2, Nagaon.

13. The prosecution examined as many as 12 witnesses in support of their case projected.

14. P.W.-1, namely the informant Smti. Bhagyawati Gour, is the widow of the deceased victim of Late Tankeswar Gour. In her evidence before the Court, P.W-1 stated that she was the informant who had lodged the case against the four accused. She identified the present appellants in the Court. Deceased Tankeswar Gour was her husband. On the date of the incident i.e., 25.05.2014 at 09.00 PM, she was at home along with her husband and two daughters. Accused Anil Gour is the brother-in-law and Joy Sing is the son of Anil Gour and Kamala Gour is the wife of Anil Gour. Anil Gour intended to give his daughter in marriage and had therefore sold the portion of land where the husband of the P.W-1 i.e. the victim had also put his signature. But instead,the said Anil Gour had sold the land belonging to the victim's husband. On the night of the incident, Anil Gour armed with 'rod', Madan armed with 'axe', Kamala armed with 'dao' and Joysingh armed with stick came and assaulted the husband of the P.W-1. Madan assaulted on the head of the husband of the P.W-1 with a 'axe', Joysingh inserted the stick inside the mouth of the husband and Kamala dealt dao blows on his neck. When P.W-1 went to rescue her husband, Madan Page No.# 11/30

asked her to go away and said he had taken permission from the Gaonburah to assault her husband. Out of fear P.W-1 fled to the house of Keria and became senseless there. Her daughters also took shelter in the house of Keria. In the morning after returning home, she found her husband lying dead in the courtyard and thereafter she along with her two daughters went to the police station and lodged the FIR. She identified her signature and deposed that the FIR was written by one Ali as per her words.

She was cross-examined in details but the evidence adduced by the P.W-1 in her evidence in chief was sustained with very minor inconsistencies. She maintained that Anil her brother-in-law had forcibly taken signature of her husband and sold of their portion of the land. She had clearly identified all the four (4) accused including the present appellants of assaulting her husband with 'axe', 'rod', 'dao' and 'stick'. She denied suggestions put to her that these facts were not stated before the Police earlier or that these accused persons did not come to their house armed with 'dao', 'stick' and 'axe'. She also denied the suggestions that her late husband falsely implicated the accused persons in a case lodged over land. She stated that just after her husband was assaulted, she fled away from there after she was threatened by the accused persons that they would kill her too. She denied the suggestion that she was not an eye witness to the assault on her husband.

15. P.W.-2, Harila Gour is the daughter of the deceased and the informant. She also deposed that around 09.00 PM on 25.05.2014 the incident took place and that she her father, her mother and her younger sister were present. The four accused persons entered their house and abused their father. In respect of the sale of land, altercation took place between them. Thereafter Madan, one of Page No.# 12/30

the accused, informed that he would go to the house on the village headman and after 3/4 minutes returned and said he had got permission to assault my father and thereafter dealt with an axe blow on the head of the father. She deposed that accused Anil beat her father with a rod and Joysingh inserted a stick inside the mouth of her father and Kamala dealt a dao blow on her father. She deposed that when her mother went to rescue her father, Joysingh assaulted her mother too and out of fear, her mother went to the house of Keria. She and her younger sister were at the house and she gave water to her father when her father enquired where her mother had gone. She saw blood coming out from the mouth of the father and her father became silent. Thereafter, she went to the house of Keria along with her sister and spend the night in the house of Keria. On the following morning, they came and found her father lying dead in the courtyard. She then accompanied her mother to the

police station for lodging an FIR. She also deposed that on 28 thof the month, she had given her statement before the Magistrate.

In her cross-examination, she mentioned that she was a student of Class- VIII and that from the house of the village headman, their house by the road will take 5 minutes and if one takes a shortcut, it will take 2/3 minutes. She deposed that on the date of the incident, her father did not return home in an intoxicated state. On the date of incident, her father returned home at about around 4 PM. She stated at except Madan Panika, the others were their relatives of the accused persons. She stated that on hearing the hue and cry, none of the neighbour came out. She denied the suggestion that before the Police she did not state that the accused persons had assaulted her father with axe, dao and stick. On the date and time of the incident, she was sleeping in the house and after an hour of the incident leaving her father, she and her sister went to the Page No.# 13/30

house of Keria and told Keria and his family members about the assault on his father and also that blood was coming out from the mouth of their father. They did not take any steps to provide treatment to their father. She stated that one month prior to the incident, her uncle accompanied by the village headman came to obtain the signature of her father. The uncle told her father that he would sell his portion of land and therefore requires signature of his father but her uncle sold their land which they came to know when they saw group of people belonging to the Muslim community tilling their land and on being asked the person replied that their uncle had sold the land to him. When her father questioned her uncle about the same, the quarrel took place. She denied the suggestion that the accused persons did not enter their house armed with 'dao', 'stick', and 'axe' and assaulted their father. She denied the suggestion that the accused persons did not assault their father to death. It is not a fact that she denied the suggestion that she had falsely implicated the accused persons. She maintained her deposition that her father was dragged to the courtyard from inside the house and was assaulted there and they were asked not to raise any hue and cry and therefore they did not do the same. She further deposed that the accused persons assaulted her mother when she went to rescue her father.

16. P.W.-3 is a co-villager who deposed that he knows the accused persons and that the incident took place about three (3) years ago. He after being informed about the incident, he went to the place of occurrence and saw the dead body of Tankeswar Gour. He did not know who had killed him and on being asked by the police, he took the dead body for post-mortem examination.

In his cross-examination, he stated that he did not know how Tankeswar Gour had died. His house is about 1 Km away from the place of occurrence and Page No.# 14/30

he did not see the incident. Around 8 AM on the following morning, on being called by the police, he went there and the police examined him.

17. P.W-4 is the relative of Anil Gour. He also knows both the accused persons. He deposed that the incident took place about three (3) years ago and they used to quarrel frequently. The accused Anil Gour is his uncle and the deceased was his second uncle. On the following morning after the incident on receipt of information, he went there and police also arrived. There he came to know that his uncle Anil Gour had killed second uncle (namely deceased Tankeswar Gour). He deposed that he did not witness the incident of murder. However, he admitted that there was a dispute between them over landed property. He saw injury on the back of the head and on the chest. He saw cut injuries on the head and marks of injury in his chest and legs. As requested by the police, he took the dead body for holding post-mortem examination.

In his cross examination, he stated that he did not witness the victim being assaulted. It is only on 08.00 AM the following morning, he went to the place of occurrence.

18. P.W-5 is Lalit Chandra Binjuwar who is the village headman. He deposed that the incident took place in May or June, 2016 and he knew the complainant and the accused. On the following morning of the incident, he heard somebody had killed Tankeswar. He went there and saw the dead body lying in the courtyard of the deceased house. He saw injuries on the head of the dead body which seem to have been caused with the handle of an axe. He informed the police and the police came thereafter. He deposed that he did not know who killed the deceased. He also deposed that he did not know what the police had seized as the seized materials were not shown to him.

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In his cross-examination, he stated that his house is about ½ KM away from the deceased house. He stated that there are four other houses of near the house of the deceased. Except these four houses, there is no other house situated nearby. He came to be informed of the incident at about 5 AM on the next day and accordingly accompanied that person to the place. He reached the place of occurrence in 5 minutes. He stated that there was no human habitat but bamboo grove in the direction he proceeded. He did not lodge the FIR and at about 09.00 AM, the dead body was taken away by the police from the place of occurrence. He had put his signature on the seizure memo at the place of occurrence as the police had asked him to put his signature as a witness.

19. P.W.-6 is Lakshan Binjuwar, who knew the complainant and the accused persons. He went to the incident later after the date of the incident. He saw the police who enquired and he informed the police about his name. He saw the deceased lying in the courtyard from a distance. He did not know how the deceased died. He is a seizure witness and had put his signature on the seizure list.

During his cross examination, he stated that his house is about 1½ KM away from the place of occurrence and he did not remember the names of the person he had come across on the way. He also did not know the contents of the Exhibit -2 since he did not read it but he had put his signature on being asked by the police to do so.

20. P.W.-7 is Tularam Binjuwar who also stated that he knew both the accused and the deceased persons. He deposed that the house of the accused persons is situated about 2 KMs from his house. On the date of the occurrence along with other people, he also went to the place of occurrence and found that Page No.# 16/30

the deceased lying in the courtyard of his house. He saw it from a distance and he heard that Anil Gour had killed Tankeswar Gour. He did not know the object used in the assault.

In his cross examination, he stated that he went to the place of occurrence at about 09.00 AM. When the police had arrived, he had left the place of occurrence. He could not recollect from whom he had heard that Anil had killed Tankeswar. He denied the suggestion that he did not hear from others that Anil had killed Tankeswar.

21. P.W.-8, Binay Gor deposed that he knew the complainant as well as the accused duo. His house is situated at the distance of 300 metres from that of the complainant. He did not know the occurrence which happened in the night but in the morning, he went to the house of the complainant and saw the police was preparing to take away the dead body for post-mortem examination. He saw the dead body at a distance and he did not know who killed the deceased. On being asked by the Gaonburah, Paresh and Radheshyam and he had accompanied the dead body while it was taken for post-mortem examination.

In his cross examination, he stated that he went to the place of occurrence after arrival of police. There were three houses of Konwardas Panikar, Parashuram Gour and Durgeswar Gour situated near the house of the deceased. Ajit Kumar De's house is situated next to the bamboo grove standing nearby.

22. Dr. Lakshman Prasad Sarma is the P.W.-9 who was at the relevant point in time working as the Sr. Medical and Health Officer-I in the Civil Hospital, Nagaon and who had examined the dead body. In his deposition, he stated that upon examination he found the following:

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"External appearance: An average built made dead body aged about 45 yrs seen with multiple linear abrasion, bruises, in different part of the body/lathi marks/rigor mortis present. Skin at abdominal region.

Cranium and Spinal Canal: Scalp hematoma in occipital area. 2 nos. of cut injury in the occipital region. Membrana-ruptured. Brain and spinal cord full of bold in cranium in spaces.

Thorax-Sternum fractured. Blood in plural cavity. Injured collapsed. Abdomen: Peritoneum-blood present.

Muscles, bones and Joints: (i) Scalp- hematoma in occipital region

(ii) Fracture seen at sternum.

More detailed description of injury or disease:

All the injuries are ante mortem in nature. Approximate time of injury within 24 hours.

Time of death- over 2 days (48 hours) as sign of petrification on body started. Opinion: In my opinion the case of death is due to shock & haemorrhage as a result of sustaining injury of body and head."

In his cross-examination, he stated that lacerated injury can be cause by blunt object and there is a possibility of getting such type of wounds by falling on the ground.

23. P.W.-10 is Dr. Hemanta Kr. Bora, who is also working a Medical and Health Officer-I at Samaguri Public Health Centre. He was a doctor who examined the complainant as well as the daughter of complainant and the victim. In his evidence, he deposed as under:

"On 26-05-14 I was on duty as M & H. O-I. On that day I examined, Bhagyabati Gour, W/o Tankeswar Gour, R/o Sialkhaiti under Samaguri P.S. on being escorted and identified by Jugen Baruah, vide Samaguri GDE No. 414 dtd. 26-05-

14. On examination I found - tenderness in chest, back, left temporal part and left arm caused by blund object.

Ext.4 is my report and Ext.4(1) is my signature. On the same day I also examined Harela Gour, D/o Tankeswar Gour of the same case as mentioned above.

On examination I found abrasion and tenderness at left knee joint, size 1" x ½" and abrasion in right forearm, size 1" x 1 ½".

The age of the injuries are less than 6 hours caused by blunt object. Injuries are simple in nature.

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Ext.5 is my report and Ext.5(1) is my signature."

In his cross-examination, he deposed that abrasion injury may by caused by falling on the ground and that he did not mention the age of the injured.

24. P.W-11, PutuliPanikar, was examined and he knew the complainant and the accused persons as they are fellow villagers. She deposed that the deceased Tankeswer Gour used to consume liquor regularly and create a nuisance. In the following morning of the incident, she heard accused Anil Gour had killed Tankeswar but she did not go to the place of occurrence. She heard the issue was of a landed property and a fight took place in their house. Accused Madan is her son and on being asked by the police, she called Madan. The house of the deceased and their house are situated adjacently and that she was questioned by the police on the following day of the incident.

In her cross examination, she stated that the deceased's wife and her four daughters were in their house. Anil Gour stays in a separate house. On the date of occurrence, Anil Gour was in the house situated in the field which is his main house. The house of Uma, sister of Anil Gour is situated near the house of the accused-Anil. Tankeswar Gour (deceased) regularly consumes liquor and creates nuisance. She did not come out when she heard the ruckus. On the date of the occurrence, it was raining from 6/7 PM and therefore she did not know for how long the quarrel lasted. She stated that earlier too quarrel used to take place among the brothers for their share over land. She was informed by the Gaonburah that her son has been entangled in this case. She stated that on the night of the incident, her son was asleep in her house. On the day the police took away the dead body, she was questioned. She denied the suggestion that Anil Gour did not kill the deceased Tankeswar Gour. She also did not deny the Page No.# 19/30

suggestion that it is not a fact that nobody told her that Anil Gour had killed Tankeswar Gour.

25. P.W.-12 is Jogen Baruah, who at the relevant point in time was the in- charge of Shivastan Police Outpost. On 26.05.2014, the complainant lodged an ejahar which was received and a GD Entry vide GDE No. 424 dated 26.05.2014 was recorded and the ejahar was forwarded to Samaguri P.S. for registration of the case. Prior to lodging of the ejahar, at about 6.20 AM, the complainant verbally informed that Tankeswar was murdered. On the basis of the G.D. Entry, the P.W-12 went to the house of the informant and found her husband lying dead in the courtyard. He informed the C.O. (Samaguri) and Officer-in-Charge of Samaguri Police Station to get the post-mortem examination of the dead body. The Officer-in-Charge of Samaguri Police Station held that the inquest of the dead body and sent it to the Civil Hospital for post mortem examination. He recorded the statements of the witnesses. He also seized of the lathi and a rod in the presence of the witnesses. Having found the accused involved in the case near the house of the complainant, he brought them to the police station. He drew the sketch map of the incident with his signature and identified his signature thereon. After concluding the investigation, he handed over the case diary to the Officer-in-Charge of the Police Station and submitted charge-sheet on the basis of his investigation. He identified the charge-sheet as well as the signature of the Officer-in-Charge with which he deposed that he was familiar with.

During cross-examination, he stated that at 6.30 AM on 26.05.14, the complainant orally informed her about the incident but he did not obtain her signature. The written ejahar was lodged at about 10 PM on the following day.

Page No.# 20/30

Subsequent to the receipt of the ejahar, the Officer-in-Charge of Samaguri Police Station asked him to investigate the case. He stated that the Officer-in-Charge of Samaguri Police Station did not give him written permission to investigate the case before lodging on the FIR. He stated that the place of occurrence is about 10 KM away from Samaguri Police Station and he went to the place of occurrence which took in 15/20 minutes to reach on his motorbike. There are about 7/8 houses near the place of occurrence. He met the Gaonburah at the place of occurrence, whose name is Lalit Binjuwar (P.W-5). The house of Naresh Gowala and with witness Radheshyam Gour is at Sialmati. All the witnesses are from Sialmati. The complainant said that her husband came home last night under influence of alcohol and that she was in the house with two daughters and the two daughters had taken meal. The complainant stated that her husband was preparing roti/chappati and at that time Anil Gour came with an axe to assault her husband and assaulted him and that she along with her two daughter stook shelter in the house of Kartik Ram for the night and that in the following morning she came and found her husband lying dead. The house of Kartik Ram is about ½ furlong away from the house of the complainant. Witness Hatila (P.W-2) had stated before the P.W-12 that she was sleeping after taking meal on that night and that having heard the hue and cry, she came out and saw Madan Panika, Bhola Panika and Anil Gour with axe in their hands coming to assault and that out of fear her mother entered the house and they assaulted her father. When the accused persons had attempted to assault her, she fled away. Blood came out through the mouth of her father when he was assaulted and that on the following day he found her father lying dead. P.W.-12 collected the two (2) seized articles from the place of occurrence. He stated that there was frequent quarrel between the parties with regard to landed properties.

Page No.# 21/30

26. The accused persons were also examined under Section 313 Cr.P.C. The case projected on behalf of the accused bestowed as a case of total denial as is evident from the answers given to the said 313.

27. The learned trial Judge framed the following question for determination:

"Whether the accused persons on 25.05.14 at 09.30 pm in furtherance of common intention committed did commit murder by intentionally causing the death of Tankeswar Gour and thereby committed an offence punishable under Sections 302/34 of IPC?"

28. The learned trial Judge relied primarily on the testimony of P.W.1 and P.W.-2 as well as the statement made by P.W.-2 under Section 164 Cr.P.C. to come to a conclusion that the testimony were found to be corroborative of each other with some minor discrepancies which does not shake the credibility of the prosecution version projected before the trial Court.

29. P.W.-1 and P.W.-2 are both eye witnesses and are therefore, primary witnesses who support the case of the prosecution. Their testimonies have not been shaken during the cross-examination except for some minor discrepancies. P.W.-1 and P.W-2 had, in their testimony, stated that they had seen all the four (4) accused entering their house dragging their husband and father respectively to the courtyard and assaulting them with axe, dao and lathi. Both P.W-1 and P.W-2 corroborate each other testimony that when P.W.-1 tried to prevent the assault, she was threatened and also subjected to assault by the accused persons because of which she sustained injuries. P.W.-2 also in her testimony clearly stated that she had seen the accused persons assault her father and that blood was coming out of his mouth and subsequently he felt silent. Because she Page No.# 22/30

was intimidated by the accused persons, she along with her younger sister and mother went and took refuge in one of the neighbour houses. The testimony of P.W.-1 and P.W.-2 as eye witnesses that the accused persons had entered the house of the deceased has remained unshaken.

30. The post-mortem report conducted on the deceased reflects bruises, ecchymosis in different parts of the body/lathi marks/ rigor mortis are present. Hematoma in the occipital area along with two (2) numbers of cut injuries lacerated are noted on the scalp although the scalp and the vertebrae are found to be healthy. The membrane however, was found "ruptured". The brain and the spinal cord were found to be congested full of blood in the cranium in spaces. In so far as the Thorax is concerned, the following injuries were noticed:

"1. Walls ribs and cartilages: Sternum fractured

2. Pleurae: Blood in pleural cavity

3. Larynx and trachea:

Injured. Collapsed.

4. Right lung:

5. Left lung: Congested

6. Pericardium:

Healthy

7. Heart:

8. Vessels: Full of blood."

In so far as the abdomen is concerned, the following is the report seen in the post-mortem:

1. Walls : Healthy

2. Peritoneum : Blood present

3. Mouth, pharyanx, oesophagus :Congested healthy

4. Stomach and its contents : Food particles

5. Small intestine and its contents :

Gaseous material

6. Large intestine and its contents :

7. Liver :

8. Spleen :

9. Kidneys : Healthy congested Page No.# 23/30

10. Bladder :

11. Organs of generation external and internal :

31. The evidence of the medical doctor who conducted the post-mortem, namely P.W.-9 supports the findings in the post-mortem report. His opinion into the cause of death is very clear that it is due to " shock & haemorrhage as a result of sustained injury of body & head".

In his cross-examination, he had stated that lacerated injury can be cause by blunt object and that there are possibilities of getting such type of wounds by falling on the ground.

32. Taking into consideration the evidence of P.W.-1 and P.W.-2 read with the evidence of the doctor conducting the post-mortem report namely P.W.-9, it is evident that the deceased died due to shock and haemorrhage due to the injuries sustained. The injuries reflected in the post-mortem report appears to be sufficient to cause death to an ordinary person. Although during the trial, the defence tried to shake the evidence of the doctor, P.W-9 who conducted the post-mortem report to suggest that these injuries could be caused by blunt object and that there is a possibility that such type of injuries can happen by falling on the ground. The fact remains that there is no evidence to suggest that the defence has not been able to shake the evidence projected by the eye witnesses. However, the evidence of the eye witnesses that the accused persons had assaulted the deceased has not been shaken. The nature of the assault as is evident from the testimony of P.W-1 and P.W.-2 are sufficient cause the injuries which are reflected in the post-mortem report and this fact has remained unshaken inspite of the attempt made by the defence to suggest that such injuries can be caused by blunt object or also by falling on the ground. In the statement made by the P.W.-2under section 164 Cr.P.C., she had clearly Page No.# 24/30

implicated all the four (4) accused that they were armed with 'dao', 'lathi' and 'axe' and assaulted their father. This statement under section 164 Cr.P.C. largely corroborates with her testimony made during the trial.

33. In Abdul Sayeed Vs. State of Madhya Pradesh & Ors, reported in (2010) 10 SCC 259, the apex Court held that special evidentiary value is required to be given to the testimony of the witness who was himself injured in the incident. It is held that where a witness to the occurrence has been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. Referring to earlier precedents, the apex Court held that "Convincing evidence is required to discredit an injured witness." The apex Court held that the testimony of the injured witness is to be accorded a special status in law. The injury to the witness becomes an inbuilt guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. The apex Court went on to hold that where the eye witnesses' account is found credible and trustworthy, a medical opinion pointing to alternative possibilities cannot be accepted as conclusive. The eye witnesses' account requires a careful independent assessment and evaluation for its credibility, which should not be adversely prejudiced on the basis of any other evidence, including medical evidence, as the sole touchstone for the test of such credibility.

34. In Solanki Chimanbhai Ukabhai Vs. State of Gujarat, reported in (1983) 2 SCC 174, the apex Court held that ordinarily, the value of medical evidence is Page No.# 25/30

only corroborative. It proves that the injuries could have been caused in the manner alleged and nothing more. The use which the defence can make of the medical evidence is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eye-witnesses. Unless, however the medical evidence, in its turn, goes so far that it completely rules out all possibilities whatsoever of injuries taking place in the manner alleged by eye witnesses, the testimony of the eye-witnesses cannot be thrown out on the ground of alleged inconsistency between it and the medical evidence. It was held that the position of law is that in cases where there is a contradiction between medical evidence and ocular evidence, it can be crystallised to the effect that though the ocular testimony of the witness has greater evidentiary value vis-à-vis medical evidence, and when medical evidence makes ocular testimony improbable, that becomes a relevant factor for the process of evaluation of evidence.

35. Coming to the facts of this case as have been discussed above, the testimony of P.W-1 and P.W-2 who are eye witnesses corroborate each other with very minor contradictions. Similarly, the statement given immediately after the investigations were initiated by P.W.-2 under Section 164 as well as the evidence given by P.W.-2 during the trial is largely corroborative with very minor contradictions. The defence has not been able to shake the evidence given by the P.W.-1 and P.W.-2. The projection sought to be made by the defence referring to the possibility of the injuries suffered by the victim by blunt objects or by falling on the ground cannot rule out the ocular testimony of the witnesses P.W.1 and P.W.-2. The defence has not able to lay before the trial Court or draw inference from the medical evidence that the testimony of the ocular witnesses namely P.W.-1 and P.W.-2 in respect of the assault by the Page No.# 26/30

accused appellants on the deceased could not under any circumstances have led to the injuries sustained and as reflected in the post-mortem report. This attempt although made by the defence cannot be sustained as the injuries sustained by the deceased as is evident from the post-mortem report, are capable of being received due to assault inflicted by the accused persons as per the testimony of P.W.-1 and P.W.-2.

36. Under such circumstances, the attempt made by the defence to shake the credibility of the prosecution case that the injuries sustained by the deceased were not from the assault cannot be accepted and will have to be overruled.

37. Under such circumstances as have been held by the Apex Court, since the testimony of the ocular witnesses namely P.W.1 and P.W.-2 could not be shaken during the evidence, there is no infirmity seen by the trial Court arriving at a conclusion of conviction of the accused persons largely based on the testimony of P.W.-1 and P.W.-2.

38. In so far as the arguments of the counsel for the defence is concerned that the conviction could not have been sustained under Section 34 of the IPC as there was no common intention is also required to be discredited inasmuch as from the evidences of the several witnesses besides the ocular witnesses of P.W.-1 and P.W.-2, it is evident from the testimony of the witnesses that there was a land dispute between the accused persons and the victim as is evident from the testimony of the several witnesses.

39. As has been discussed above, this is not a case of fights between two groups of people or even mob violence. The testimony of the eye witnesses along with other witnesses clearly reveal that there was a land dispute between the accused persons and the deceased and as per the testimony of the eye Page No.# 27/30

witnesses namely P.W.-1 and P.W.-2, all the four (4) accused persons entered together into the compound and started assaulting the deceased person and also assaulted the P.W.-1 and P.W.-2. There is a vivid description of the accused persons who had assaulted the deceased with specific object like 'lathi', 'dao' and 'axe'. The injuries sustained on the body of the victim reveals that there were several injuries inflicted on the body of the deceased including the sternum of the victim. As such, it is not a case of sudden assault at the hit of the moment leading to the death of the victim. There were repeated assaults on the victim leading to several injuries on his scalp, his sternum, chest and other parts of the body leading to subsequent death of the deceased. The post mortem report clearly reveals that the death occurred due to shock and haemorrhage suffered due to the injuries sustained by the accused persons and which are ante mortem in nature. As such, the case sought to be projected by the defence that there was no common intention amongst the accused cannot be accepted and therefore the said submissions are also rejected.

40. Coming to the further objection of the counsel for the defence that the inquest was not conducted as per the provisions of the Cr.P.C. and that the same was conducted by the police officer and therefore not sustainable also is not accepted in view of the fact that the Assam Police Manual permits the recording of inquest by police officer.

41. Under such circumstances, the investigating authority ordinarily follows the requirement as prescribed under the police manual during the course of investigation. Even if the said contention of the defence counsel is accepted, that by itself will not make the investigation fatal as taking into account the evidence adduced during the trial, it is seen that during investigation, the Page No.# 28/30

prosecution had undertaken the investigation largely in terms of the procedure prescribed.

42. In Pedda Narayana and Ors Vs. State of Andhra Pradesh , reported in (1975) 4 SCC 153, the Apex Court held that the proceedings under Section 174 Cr.P.C is a very limited scope. The object of the proceedings is merely to ascertain whether a person has died under suspicious circumstances or an unnatural death and if so, what is the apparent cause of the death. The question regarding the details as to how the deceased was assaulted or who assaulted him or under what circumstances he was assaulted is foreign to the ambit and scope of the proceedings under Section 174. Neither in practice nor in law was it necessary for the police to have mentioned these details in the inquest report.

43. A perusal of Section 174(1) Cr.P.C. reveals that where the Officer-in-charge of a Police Station or some other police officer specially empowered by the State Government receives information that the person has committed suicide or has been killed by another or by animal or by machinery or by accident or as died under circumstances raising reasonable suspicion that some other person has committed an offence, he shall immediately give intimation thereof to the nearest Executive Magistrate empowered to hold inquest and unless otherwise directed by any Rule prescribed by the State Government or by general or special order of the district or Sub-Divisional Magistrate shall proceed to the place where the body of the deceased person is located and thereafter in the presence of two or more respectable inhabitants of the neighbourhood shall make an investigation drop a report of the apparent cause of death describing such wound, fractures, bruises and other marks of injury as may be found in the Page No.# 29/30

body stating in what manner or by what weapon or instrument such marks appeared to be inflicted.

A perusal of the said Section reveals that although it is the empowered Magistrate who is to conduct the inquest, however, the same is subject to such Rule or order as may be issued by the competent authority from time to time. Under the Assam Police Manual, a Police Officer as prescribed thereunder is empowered to undertake inquest and therefore it cannot be held that the inquest conducted by the Police Officer is contrary to the provisions of Section 174 Cr.P.C.

44. From a perusal of the judgment under appeal, it is evident that this argument was never addressed before the learned trial Judge. Be that as it may, since this is an appellate Court and the arguments made is entirely a question of law, this Court considers it necessary to address this issue. From the evidence of P.W.-12, it is seen that the inquest was undertaken by the Officer-in-Charge of the Samaguri Police Station which had registered the FIR. The said Officer-in- Charge was not a part of the witnesses presented before the Court during the trial. As discussed, no prayer was made or arguments were made before the trial Court questioning the correctness of the inquest report.

Under such circumstances, in the absence of the testimony of the Officer conducting the inquest report and read with the testimony of the P.W.-12 that the inquest report was conducted by the Officer-in-Charge of Samaguri Police Station, which is permitted under the Assam Police Manual, the objection raised that the inquest conducted is contrary to the provisions of Section 174Cr.P.C., has to be rejected.

In any view of the matter, there is no other objection in respect of the Page No.# 30/30

inquest report that it contains information which is prima faciecontrary to the evidence adduced by the ocular witnesses namely P.W.-1 and P.W.-2.

45. In view of the discussions above, the judgments referred to the by the learned counsel for the appellants are not applicable to the facts and circumstances of the present appeals and therefore, the appellate Court does not consider it necessary to refer to the said judgments.

46. Under such circumstances, this Court is of the view that there is no infirmity in the judgment rendered by the learned trial Judge in Sessions T(1) Case No. 18(N)/2016 or in the appreciation of the evidence as adduced. Both the appeals therefore fail and the same are dismissed.

47. The Registry will ensure that the remuneration due to the learned Amicus Curiae is released to Shri A. Dhar, Advocate, who was appointed as Amicus Curiae in this matter.

48. The trial Court records be remitted back.

49. Let a free copy of this judgment and order be provided to the appellants.

JUDGE

Comparing Assistant