JUDGMENT :

Heard Mr. A.K. Gupta, learned counsel for the appellant and Mr. B.B. Gogoi, learned Addl. Public Prosecutor, Assam.

2. This criminal appeal is preferred against the judgment and order, dated 20.12.2010, passed by the learned Sessions Judge, Jorhat in Sessions Case No. 114(JJ) of 2008, whereby the appellant is convicted under Section 304, Part II of the IPC and sentenced to undergo rigorous imprisonment for 5 (five) years and to pay a fine of Rs. 5,000/-(Five Thousand) only, in default to undergo rigorous imprisonment for 3 (three) months.

3. The prosecution case in brief is that one Sri Babul Borah lodged an Ejahar before the Officer-in-Charge of Pulibor Police Station, stating inter-alia that his uncle Lakhi Kanta Borah had quarrelled with his son, i.e. the appellant and that the appellant inflicted blow on his father by means of a Lathi, used for hanging mosquito net, causing injury to the head of Lakhi Kanta Borah, which resulted into his death. On receipt of the said FIR, Pulibor P.S. Case No. 130/2007 under Section 302 of the IPC was registered against the appellant and police commenced investigation.

4. After completion of investigation, the police laid a charge-sheet under Section 302 of the IPC against the appellant. After committal, the learned Sessions Judge, Jorhat framed a charge as charge sheeted. The appellant pleaded innocence. Thereafter, the prosecution examined 7 (seven) witnesses and the appellant was examined under Section 313 Cr.P.C. The appellant did not adduce any defence evidence. On conclusion of trial, the learned Sessions Judge convicted and sentenced the appellant, as stated above.

5. A perusal of the evidence of P.W.1, Babul Bora, son of Nila Kanta Bora, the informant and cousin brother of the appellant, it is revealed that he did not witness the alleged occurrence that took place at the house of the deceased and the appellant at about 9.30 P.M. and, as such, he could not say how the deceased died. The prosecution declared him as a hostile witness. Likewise, P.W.2, Babul Bora @ Gogoi, son of Lakhan Bora, stated that he also did not witness the alleged occurrence. However, he testified to have seen the deceased lying on the floor and the appellant on the bed, when the police arrived. Turning to the evidence of P.W.3, Kanduri Bora, the mother of the appellant, it is revealed that her husband was alcohol addict and was suffering from hypertension. At the relevant time of the occurrence, she was outside home and after return, she, finding her husband lying, raised hue and cry. She could not say as to how her husband died. The prosecution declared her as a hostile witness. P.W.4, Reben Bora, who rushed to the house of the deceased hearing from the villagers to the effect that Lakhi Kanta died and found him lying dead and did not find the appellant. On the other hand, the evidence of P.W.6, S.I., Nidamul Islam, the Investigating Officer of the case, testified to the steps he had undertaken during investigation. P.W.5, Dr. Shyamanta Madhab Sharmah, the doctor, who performed the post-mortem examination on the deceased, on 01.08.2007, held the opinion that the cause of death of the deceased was coma as a result of head injuries sustained vide Ext.4, his said report and further added that M.Ext.1, one piece of mosquito stand may cause such injuries.

6. The Supreme Court held that merely because a witness is declared hostile, his entire testimony cannot be excluded from consideration. Here, it is noticed from the evidence of P.W.1 and P.W.3, who were declared as hostile witnesses, did not witness the alleged occurrence, more particularly, by P.W.3, the deceased’s wife. Even P.W.3 hinted that her deceased husband was alcohol addict, who consumed alcohol everyday since morning and suffered from hypertension. Further, as noticed above, neither P.W.2 nor P.W.4 could say how the incident took place. However, the evidence only reveals that Lakhi Kanta died inside his dwelling house and died due to coma as a re