Point of Law: Presence of an injured eye-witness at time and place of occurrence cannot be doubted unless there are material contradictions in his deposition.

JUDGMENT :

(Mridul Kumar Kalita, J.)

1. Heard Mr. A. K. Gupta, learned counsel for the appellant. Also heard Ms. S. Jahan, learned Additional Public Prosecutor for the State of Assam.

2. This Appeal has been preferred under Section 374 (2) of the Code of Criminal Procedure, 1973, by the appellant Shri Dipen Rajkonwar, impugning the judgment and order dated 13.06.2011, passed by the learned Sessions Judge, Dibrugarh in Sessions Case No. 160/2008, whereby the present appellant was convicted under Section 304 Part-1 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 10,000/-, and in default of payment of fine to undergo rigorous imprisonment for a period of another one year.

3. The appellant was also convicted under Section 324 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs. 1,000/-, and in default of payment of fine to undergo rigorous imprisonment for a period of another six months. It was directed that both the sentences shall run concurrently.

4. The facts relevant for adjudication of this instant Criminal Appeal, in brief, are as follows:

(i) That on 22.04.2007, one Sri Uma Rajkonwar lodged an FIR before the Officer-in-Charge of Tinkhong Police Station, inter-alia, alleging that on 21.04.2007 at about 6.00 P.M., the appellant Sri Dipen Rajkonwar assaulted the son of the first informant, namely, Latu and the daughter-in-law of the first informant, namely, Mainu Rajkonwar with a dao causing grievous injuries on their person and it is also stated in the FIR that when the wife of the first informant, namely, Pramila Rajkonwar tried to intervene in the quarrel, she as well as the grandson of the first informant were also assaulted and they also suffered grievous injuries on their person.

(ii) It is also stated that the injured persons were taken to the hospital, however, the daughter-in-law of the first informant Smti. Mainu Rajkonwar succumbed to her injures.

5. On receipt of the said FIR, Tinkhong P. S. Case No. 68/2007 was registered under Sections 326/302 of the Indian Penal Code and Sri Surya Kumar Chetiya, Officer-in-Charge of Tinkhong Police Station took up investigation of the said case. Ultimately, on completion of the investigation, charge-sheet was laid against the present appellant under Sections 326/302 of the Indian Penal Code. The present appellant faced his trial remaining on bail. On 10.08.2008, after considering the materials on record and after hearing both sides, learned Sessions Judge, Dibrugarh framed charges under Sections 324/326/302 of the Indian Penal Code against the present appellant and when the said charges were read over and explained to him, he pleaded not guilty to be said charges and claimed to be tried. The prosecution side examined thirteen (13) witnesses during the trial. The present appellant was also examined under Section 313 of the Code of Criminal Procedure, 1973, wherein he denied the incriminating evidence adduced against him by the prosecution witnesses and has pleaded his innocence. During his examination under Section 313 of the Code of Criminal Procedure, 1973, the appellant had stated that it was the son of the first informant, namely, Latu, who first came to his courtyard brandishing a dao and started scolding the present appellant and assaulted him and his wife causing injuries to him as well as his wife and when the daughter-in-law of the first informant tried to intervene she also got injured due to brandishing of dao by Latu i.e., the son of the first informant. The appellant however, did not adduce any evidence in his defense.

6. After completion of trial learned Sessions Judge, Dibrugarh, by the judgment, which has been impugned in this appeal convicted and sentenced the present appellant in the manner as already described in paragraph nos. 2 & 3 hereinbefore.

7. Before considering the rival the submissions made by learned counsel for the appellant as wel