Point of Law: There was no eye witness as to actual assault on body of deceased which lead to her death and as such, it can be said that conviction of appellant is based on circumstantial evidence.

JUDGMENT :

N. KOTISWAR SINGH, J.

1. Heard Ms. R.D. Mazumdar, learned Amicus Curiae for the appellant. Also heard Ms. S. Jahan, learned Addl. P.P. Assam.

2. The present appellant preferred appeal against the Judgment dated 19.09.2017 passed by learned Sessions Judge, Lakhimpur at North Lakhimpur in Sessions Case No. 174 (NL) of 2016 by which the appellant has been convicted u/s 302 of IPC and sentenced to undergo life imprisonment with a fine of Rs. 5,000/- only in default to undergo rigorous imprisonment for a period of 6 months .

3. The prosecution case against the appellant is that an FIR was lodged on 16.09.2016 by one Suren Das, the brother of the appellant that on 16.09.2016 at 9 A.M. the appellant entered the house of his married sister Smt. Jayanti Das, wife of Sri Suren Das resident of Singimari Doloni village and grievously wounded her by giving dao blows on her and immediately thereafter, the complainant took his sister to Boginadi Primary Health Centre where she died while receiving treatment. Based on the aforesaid FIR a police case was registered as Boginadi P.S Case No. 132/16 u/s 302 of IPC. Investigation was launched thereafter and on completion of the investigation, the appellant was charged for committing offence u/s 302 of IPC and accordingly was tried before the learned Addl. Sessions Judge, FTC, Lakhimpur, North Lakhimpur for the said offence.

4. The prosecution examined as many as 8(eight) witnesses and the learned Trial Court after considering the evidence adduced and taking into consideration the plea of denial by the appellant, held that prosecution has been able to prove the charge against the appellant beyond the reasonable doubt and accordingly, convicted him under Section 302 of IPC.

5. Ms. R.D. Mazumdar, learned Amicus Curiae appearing on behalf of the appellant submits that it cannot be said that the charge against the appellant has been proved beyond reasonable doubt inasmuch as there was no eye witness and his conviction is based on circumstantial evidences and there are inconsistencies in the statements of the witnesses and as such, it cannot be said that the charge has been proved beyond reasonable doubt. On the other hand, Ms. S. Jahan, learned Addl. P.P. submits that there are sufficient circumstantial evidences on record to substantiate the charge.

To appreciate the rival contentions and also to examine the correctness or otherwise of the judgment rendered by the learned Trial Court, we will briefly refer the evidences on record.

6. PW-1, Sri Suren Das, the complainant stated that the accused appellant is his younger brother and the deceased Smti Jayanti his younger sister. He stated that the deceased sister alongwith her husband had been living with the accused in his house. He stated that his house is located at about half a furlong away from the house of the accused. On the day of occurrence at around 9 A.M. PW-1, on hearing hue and cry in the appellant’s house, went there and saw his sister writhing with cut wounds over her body and was not in a position to speak. He also saw the cut injury on her head. At that time, a lot of people had gathered there. The public apprehended his brother and handed him over to the police. He took his sister to Boginodi Hospital for treatment but she died after arrival in the hospital. He also deposed that he saw his accused brother armed with a ‘mit’ dao standing near her in a restless state with blood stain on his body. He also stated that the ‘mit’ dao held by his brother was seized by the police in his presence and there was witness to the seizure of the said weapon.

In the cross-examination by the defence, he said he is not aware that his brother was suffering from madness at that time. He also stated that his brother pretends to be so, but he is not mad. He also stated that he does not remember stating before the police that his brother was present in the house in a restless state with blood stain on his body. He clearly stated that he did not witness the i