JUDGMENT :

Mir Alfaz Ali, J.

1. Learned Senior Counsel, Mr. HRA Choudhury assisted by Mr. Azad Ahmed for the appellant and learned Addl. Public Prosecutor, Mr. BB Gogoi for the State were heard.

2. This appeal is directed against the judgment and order dated 13.08.2018 passed by the learned Additional Sessions Judge, Bilasipara, in Sessions Case No. 105/2011, whereby, the appellant was convicted u/s. 326/307 IPC and sentenced to imprisonment for 10 (ten) years on each count with fine of Rs. 10,000/- with default stipulation.

3. The prosecution case, as unfolded during trial, was that on 13-09-2005 at about 10 O' Clock in the morning, when father of the informant, Jallal Uddin Ahmed was going to graze his cattle, the appellant Ujur Ali along with Towaz Uddin and Siddique Ali mounted assault on him by dao, dagger etc. and thereby caused multiple injuries on the person of said Jallal Uddin. Later on the injured was shifted to Bilasipara SHC, wherefrom he was referred to Dhubri Civil Hospital for treatment. The PW-2, Joynal Abedin lodged an FIR with the Bilasipara Police Station, on the basis of which, police registered Bilasipara P.S. Case No. 22-5/2005 u/s. 341/307/326/34 IPC and eventually on conclusion of the investigation submitted charge-sheet against the appellant.

4. During trial, learned Additional Sessions Judge framed charges u/s. 307/326 IPC against the appellant, which were abjured by him. 9 (nine) witnesses examined by the prosecution to substantiate the charges. The appellant was examined u/s. 313 CrPC, wherein the appellant took the plea of alibi and stated that at the time of occurrence, he was working at Numaligarh brick kiln. Though the appellant consistently took the plea of alibi, in his statement recorded u/s. 113 CrPC, no further evidence or material could be brought on record to substantiate such plea.

5. The injured Jallal Uddin was examined as PW-1, who testified that while he was coming back home after leaving his cattle for grazing, suddenly the appellant Ujur Ali along with some others assaulted him and having sustained injury due to the assault, he became fainted. He (PW-1) also stated that he was in hospital for 1½ months and most of the injuries were sustained by him on the head and upper limbs. During cross-examination, the prosecution did not deny the factum of the appellant having sustained injury on the date of occurrence. However, a suggestion was put to this witness that he went to the house of appellant Ujur Ali for stealing cattle and he was chased by Siddique Ali. While trying to run away on being chased by Siddique Ali, he sustained the injuries by falling, which was denied by PW-1.

6. According to PW-2, the informant, while he was in his shop, one youth of Nath community informed him about the occurrence and immediately he rushed to the place and found his father being taken to the hospital in a handcart. According to PW-2, his father (injured) told that Ujur Ali assaulted him. The PW-2, further stated to have seen injuries on the face, hands, abdomen etc., of his father.

7. PW-4 stated that he had seen the PW-1 lying on the road with injuries and on request of the injured person, he along with others shifted him to his home. PW-5 was also not an eye witness and came later on and had seen injuries on the body of PW-1. PW-3, PW-7 & PW-8 were also post occurrence witnesses, as they came later, and stated to have heard about the occurrence.

8. The doctor (PW-6), who examined the injured(PW-1) found the following injuries on his person:-

"Multiple chop wound: (1) Chop wound over left side of cheek oral cavity was opened size 4 inches x 1 inch x i inch. (2) chop wound over right cheek parotid gland was opened Pinna of the ear severed through middle mastoid cavity was opened. External auditory meatus was opened. 6 inches x 1 inch x 1 inch (3) Chop wound of the right wrist ulna was severed at the level of lower 3rd size 2 inches x 1 inch x 1 inch. (4) Chop wound of right forearm. Size 2 inches x ½ inch x