Previous statement of a witness recorded under section 161, Cr.PC cannot be used for any purpose including any omission, unless covered by Explanation provided in section 162, Cr.PC. These omissions have been already discussed to be of not much significance except of the use of torch to witness the incident.

JUDGMENT :

N. KOTISWAR SINGH, J.

1. The present appeal has been preferred against the judgment dated 10.3.2017 of the Court of Additional Sessions Judge, Barpeta, passed in Sessions Case No. 31/2009 by which the present appellant was convicted for committing an offence under section 302, IPC and sentenced to imprisonment for life with a fine of Rs. 1,000.

2. A First Information Report (‘FIR’) was lodged on 4.7.1997 at around 3.30 p.m. by Sri Tarani Chandra Das, the brother of the deceased person, late Satish Chandra Das, alleging that at around 8.30 p.m. on 3.7.1997 when the said deceased was returning home from his shop and reached the courtyard of the complainant, the appellant and three others armed with deadly weapons, struck his brother from his back with an axe as a result of which he sustained grievous injury. It was also alleged that after the appellant had dealt the axe blow to him, the other accused-persons started beating him on various parts of his body with iron rods which they were carrying. It has been also alleged that the accused-persons tore his wearing apparels and looted his money as well. It was also stated that on hearing hue and cry, people came out and asked them as to why they were assaulting him. Thereafter, the accused attempted to assault them. The injured person was taken to Barpeta Civil Hospital and thereafter, to Guwahati for treatment.

3. Based on the aforesaid FIR, a police case being Barpeta P.S. Case No. 369 of 1997 was registered under section 447/326/379/34, IPC. It may be noted that at the time of lodging of the FIR, the victim was undergoing treatment and he succumbed to injury a few days later on 7.7.1997 and later, offence under section 302, IPC was added.

4. On completion of the investigation, the appellant and two others were charge sheeted for committing offences under section 447/379/302/34, IPC.

5. The learned Addl. Sessions Judge, Barpeta convicted the appellant under section 302, IPC, but acquitted him from other charges. The others charged along with the appellant, who were his relatives, mother, and elder brother were, however, acquitted from all the charges, as the evidence against them were not found credible.

6. To secure conviction, the prosecution examined eight (8) witnesses. Smt. Joymati Das as PW 1, Tarani Chandra Das as PW 2 (the complainant), Jogeswar Das as PW 3, Kunjalal Pathak as PW 4, Smt. Rinika Das as PW 5, Sri Sankar Das as PW 6, Dr. Kanak Chandra Das as PW 7 and Jadab Chandra Hazarika, the Investigating Officer as PW 8.

7. The prosecution also exhibited several documents and articles seized in course of the investigation. Witnesses PW 1, PW 2 and PW 3 are the ones who claimed to be eye witnesses of the incident and all of them have claimed to have seen the appellant hit the deceased on his head with an axe because of which the deceased succumbed to his injury later on.

8. PW 1, Smt. Joymati Das, gave evidence that the deceased was her younger brother-in-law. The accused-persons belong to Batikuria village, which is the same village where the deceased and the witnesses resided. According to the PW 1, the incident took place at around 8 : 30 p.m. on 3.7.1997. At* the time of incident, she was at her house when she heard the brother of her father-in-law, Kushal Das (expired before the trial) shouting, “marile marile” (he is being hit/killed). Then she and her husband came out of the house taking a torch along. She also stated that a light was burning at the place where the incident took place. Her husband flashed the torch and they saw the accused striking the deceased with an axe. She saw the appellant coming running with an axe in his hand. The mother of the appellant, Sailyabala, his wife, Bimola Das and his elder brother, Ghanakanta were along with the appellant. Her brother-in-law, Satish thereafter fell on the ground. He was then taken to Barpeta Civil Hospital and thereafter to GNRC at Guwahati for treatment where he died 4 days later. She also stated that the pol