Point of Law: It is settled law that evidence of hostile witnesses can also be relied upon by prosecution to extent to which it supports prosecution version of incident.

JUDGMENT :

Malasri Nandi, J.

Heard Ms D Saikia, learned Amicus Curiae appearing on behalf of the accused appellant in Criminal Appeal 50 (J) of 2019 and Ms R D Mozumdar, learned Amicus Curiae appearing on behalf of the accused/ appellant in Criminal Appeal No. 51 (J) of 2019. Also heard Ms S Jahan, learned Additional Public Prosecutor for the State of Assam.

2. Both the appeals are directed against the Judgment and Order dated 28.01.2019, passed by the learned Additional Sessions Judge (FTC), Sonitpur, Tezpur, in connection with Sessions Case No. 215/2011, whereby both the accused appellants were convicted under Sections 302/34 IPC and sentenced them to undergo Rigorous Imprisonment for Life and to pay a fine of Rs. 5,000/-(Rupees Five Thousand) each, and in default of payment of fine, further Rigorous Imprisonment for 3 (three)months each.

3. The case of the prosecution in brief is that the informant Monoj Baruah, Welfare Officer of Dhulapadung Tea Estate, lodged an FIR on 15.08.2011, before the Officer-In-Charge, Rangapara Police Station, stating inter alia that on 14.08.2011, at about 09:30 pm, one Marshal Kujur, resident of Line No. 15, Moinajuli Division of Dhulapadung Tea Estate was assaulted by his father Waris Kujur and elder brother Anil Kujur at his residence following a quarrel, as a result of which, Marshal Kujur sustained grievous injuries on his person. Though the injured was taken to Rangapara Hospital for treatment, but the doctors declared him brought dead.

4. On receipt of the ejahar, a case was registered by the Officer-in-Charge, Rangapara Police Station vide Rangapara PS Case No. 184/2011, under Sections 302/34 IPC and investigation was initiated. During investigation, the Investigating Officer visited the place of occurrence, recorded the statements of witnesses and seized one bamboo stick from the house of the accused. Inquest was conducted on the dead body of the deceased and the dead body of the deceased was forwarded to Kanaklata Civil Hospital for Post-Mortem Examination.

5. During investigation, the accused persons were arrested and sent to jail. After completion of investigation, charge sheet was submitted against the accused appellants under Sections 302/34 IPC, before the Court of learned SDJM, Sonitpur, Tezpur. As the offence under Section 302 IPC is exclusively triable by the Court of Sessions, the case was committed accordingly.

6. During trial, both the accused appellants remained in jail and charge was framed under Sections 302/34 IPC, which was read over and explained to the appellants, to which they pleaded not guilty and claimed to be tried.

7. To substantiate the case of the prosecution, 8 (eight) witnesses were examined. On the other hand, the accused appellants did not adduce any evidence in support of their case. After completion of trial, the statement of the accused appellants were recorded under Section 313 CrPC and the incriminating evidence adduced by the witnesses were put before them, to which they denied the same and pleaded their innocence. After hearing the arguments of learned counsel for both the parties, the accused appellants were convicted as aforesaid. Hence, both the accused appellants have preferred the appeals.

8. It was urged on behalf of the appellants that the two eye-witnesses, i.e. PW-5 and PW8, were declared hostile as they did not support the prosecution case. The other witnesses examined by the prosecution were not present when the incident occurred. PW-5 and PW-8 were the star witnesses as they had seen the incident. However, as they had resiled from their earlier statements, the conviction passed by the learned trial Court cannot be sustainable in law.

9. It is also submitted on behalf of the appellants that as per the Medical Report, the deceased sustained fatal injury on his head, and according to the Medical Officer, the cause of death was due to head injury, but it is not possible to cause one injury by two persons on the head of the deceased. Hence, prosecution