Point of Law: When two views are possible on the evidence brought on record the view that is favourable to the accused should be adopted.

JUDGMENT :

SUMAN SHYAM, J.

1. Heard Mr. R.S. Mishra, learned counsel appearing for the appellant. We have also heard Ms. B. Bhuyan, learned Additional Public Prosecutor, Assam, appearing for the State/respondent No. 1. None has appeared for the informant/respondent No. 2.

2. The prosecution story is that on 15.01.2012 at around 4.30 a.m. the accused persons viz. Sonu Nayak, Bodon Nayak, Govinda Nayak and Badal Nayak had hacked the deceased Raju Kheruwar with sharp weapon resulting in his death. On 15.01.2012, Sri Hari Kheruwar i.e. the son of the deceased had lodged an ejahar before the Officer-in-charge of Borborua Police Station in the district of Dibrugarh reporting the incident. On receipt of the ejahar, Borborua P.S. Case No. 15/2012 was registered under Section 302/34 of the Indian Penal Code (IPC) and thereafter, the matter was taken up for investigation. The dead-body was sent for post-mortem. After obtaining the post-mortem report as well as report of the Forensic Science Laboratory (FSL), the Investigating Officer (I.O.) had laid charge-sheet under Section 302/34 of the IPC against the four accused persons. The charge, on being read over and explained to the accused persons, was denied by them as a result of which, the accused persons were made to face trial.

3. During trial, the prosecution side had examined as many as 9 witnesses including the PW-3, who is the doctor who had conducted post-mortem examination on the dead-body and the PW-9 i.e. the Investigating Officer. After recording the evidence of the prosecution witnesses, the statement of the accused persons was recorded under Section 313 of the Cr.P.C. The defence case is one of total denial. However, the defence side did not lead any evidence. Upon appreciation of the evidence available on record the learned trial court has held that the charge brought against the appellant Sonu Nayak was proved by the prosecution beyond reasonable doubt and accordingly, he was convicted under Section 302 of the IPC and sentenced to undergo rigorous imprisonment for life and also to pay fine of Rs. 10,000/- in default, to undergo simple imprisonment for further three months, for committing the offence punishable under Section 302 of the IPC. The remaining three accused persons viz. Govinda Nayak, Badal Nayak and Bodon Nayak were, however, acquitted on the ground that the prosecution had failed to establish the charge brought against them under Section 302/34 of the IPC.

4. Assailing the impugned judgment dated 24.01.2018 passed by the learned Additional Sessions Judge, Dibrugarh in connection with Sessions Case No. 176/2012, Mr. Mishra, learned counsel for the appellant, has argued that the conviction of the appellant is based on the testimony of PW-8, who was treated as an eye-witness and also on the seizure-list Ext-6 and the FSL report indicating presence of human blood in the seized knife as well as the apparels of the accused and the deceased. However, Mr. Mishra, submits the PW-8 is not an eye-witness and due to the material contradictions in his testimony, the evidence of PW-8 was liable to be discarded by the learned trial court. In so far as the seizure-list (Ext-6) and the FSL report (Ext-9) is concerned, Mr. Mishra has argued that there is nothing to show that the blood stain found in the “knife” as well as the wearing apparel of the accused is that of the deceased. By referring to the evidence available on record, more particularly the testimony of PW-9 (I.O.) Mr. Mishra has argued that the appellant himself had received injuries and therefore, there is a strong possibility that the blood stain in the knife as well as those in his apparels belonged to the appellant himself. Mr. Mishra has further argued that the evidence as well as the recovery of blood stained knife, long pant of the accused and the jacket of the deceased containing human blood and also the FSL report was never put to the accused while recording his statement under Section 313 of the Cr.P.C. so as to