V. Dutta Gyani, J.:— This appeal arises out of judgment dated 24.3.94 delivered by the learned Sessions Judge, North Lakhimpur in Sessions Case No. 78 of 1992 thereby holding the appellant guilty of offence punishable under section 302 IPC and sentencing him to undergo imprisonment of life with fine of Rs. 5000/- or in default, in payment of fine, to undergo 1 year rigorous imprisonment.
2. The appellant was tried along with one Kabiram who has been acquitted by the trial court. The prosecution case staled in brief was, that on 13.7.90 around 3 P.M the deceased Nabin Chutia was harvesting paddy in his own land when the appellant along with the co-accused, his brother Kabiram (since acquitted) as stated to have come there armed with a Machi-dao and dealt a blow on the head of Nabin and took to his heels. His wife and sons who were present in the field witnessed the incident. It was on 14.7.90 that Prabin Chutia (PW 6) lodged at FIR at P.S Dhakuak-hana and initially a case under section 326/307/34 IPC was registered which was subsequently converted to one u/s 302 IPC on the death of Nabin Chutia on the fifth day of the incident. The injured was shifted to Civil Hospital, Dhemaji for treatment where he succumbed to the injury. On completion of investigation the accused were charged and tried for the above offence, while acquitting one of them the trial court, as noted above, found the appellant guilty of offence punishable under section 302 IPC and sentenced him to undergo imprisonment for life with fine of Rs. 5000/- or in default, suffer 1 year R.I Hence, this appeal. The learned counsel appearing for the appellant has raised the following points:
(1) that the FIR (Ext. 1) is a suspicious document which has been tempered with so as to implicate the present appellant;
(2) the FIR (Ext. I) does not contain the names of eye-witnesses;
(3) investigation in the case was done in a most perfunctory manner. Injured Nabin was not examined during the investigation, although he survived for 5 days after the attack;
(4) eye-witnesses examined by the prosecution are close relations of the deceased being wife and sons and, as such, their testimony should not have been acted upon by the trial court for passing an order of conviction. More so, in face of the fact that the co-accused Kabiram has been acquitted on the face of the evidence of the same witnesses; and
(5) There is no corroborating evidence forthcoming although other independent witness living in the visinity were available.
3. The learned Public Prosecutor appearing for the respondent State on the other hand, maintained that the trial court on proper valuation and appreciation of evidence has found the appellant guilty and according to her, this finding does not call for any interference in appeal.
4. Before proceeding further, it would not be out of place to mention that no appeal has been preferred by the State against the acquittal of co-accused Kabiram. Coming to the first point as urged by the learned counsel for the appellant, mention of the present appellant as accused No. 1 has been criticised as interpolation by the police officer concerned so as to implicate the present appellant. He placed before us a Xerox copy of the FIR as supplied to the accused. According to him mere are certain blood spots which indicate an attempt of insertion accused No. 1. Two questions arise at this stage. Firstly, no such suggestion has been made to the I.O while he was in the witness box as regards so-called interpolation in the FIR Ext. I. In absence of any such suggestion, it is difficult to appreciate the argument advanced by the learned counsel. It may also be noted that this argument at the appellate stage as advanced in face of acquittal of accused No. 2 before the trial court since the accused No. 2 Kabiram has been acquitted, now, this argument is projected that the accused No. 1 “a crude insertion was made” in the FIR Ext. I the appellant cannot be made to capital out of such in advertant insertion which can not be said to be an interpolation. More so, in face of the fact that no such suggestion has ever been made to the witness concerned namely, the I.O
5. So far as non-mention of names of eye-witnesses in the FIR (Ext I) is concerned, it is not a requirement of law that such names must figure in the FIR. It is not an encyclopedia of all facts. Of course, mention of names of eye-witness lend assurance to their evidence, but non-mention of the name by itself, would not result in discarding the evidence of such witnesses. In the instant case the FIR was lodged by the son of the deceased. It was expected of him to have mention the names of his brothers and mother who according to the prosecution were present of the time of incident. But, surprisingly enough, this witness has been put no such specific question relating to the omission of names of eye-witnesses in the FIR Exti. It is quite understandable that the son was lodging all about the fatal assault made on his father* may in that perplexed stage might omit to mention names of eye-witnesses present at the time of occurence.
6. Criticism made by the learned counsel for the appellant about the witnesses being close relatives of the deceased, is also not a valid one. Mere fact that an eye-witness happen to be a relation of the deceased, would not render his testimony wholly unreliable. Prudence dictates that his evidence to be subjected to close scrutiny with caution and circumspection. These caution and circumspection that the evidence of the eye-witnesses PWs 1, 2, 4 and 6 need to be scrutinised. Learned counsel urged that PW 1 wife of the deceased does not support PWs 2 and 4 on the point of assult by the appellant. It was also submitted that PW 1 did not categorically state that she had actually seen the appellant assaulting her husband. It is not that the learned Judge of the trial court has omitted to consider this aspect of appreciation of evidence. In fact, gist of the evidence have been literally reproduced by the learned Judge in the impugned judgment itself. It is cardinal rule that while appreciating evidence of witness his/her statement as a whole should be considered and not stray sentence here or there. Learned counsel for the appellant has pointed out from the evidence of PW 1 that she could merely hear the sound produced by the attack of dao, but she has not specifically named the appellant. The word used by her is-the accused, wimout naming him or them. But this is nothig but a pedantic approach to the statement of such elastic witness which is certainly not desirable while appreciating her evidence. No doubt, it is true, as argued by the learned counsel for the appellant that she has stated “accused fell upon my husband and hitin the crown of the head with a Machi-dao”. If the sentence is taken as an isolated one, no doubt it does not point to the appellant. But such an approach would even against the basic principle of appreciation of evidence. It is to be read in the context and just in the next bridge. This witness further states that” I looked up hearing the noise. Accused Padamram ran away. My husband fell down and I came to his help”. It is not expected of an eye-witness to give a video cassetted account of the incident which is not possible for any human being. In fact, it was she who had rushed to the rescue of her husband. She was hardly ⅔ Nulls a distance about 12 feet away from her husband who was harvesting with his face downwards. She also narrated the conduct of the accused before actually indulging in the assault. Coming right upto the witness, PW 1, asked for betel-nut which she offered. Even at that stage she had seen the appellant holding a dao in his waist and thus asking of betel-nut was probably with a view to put gloss on the evil intent the accused had in mind.
7. Adverting to the evidence of PW 2 and PW 4, they have fully corroborated their mother, the PW 1. It may also be noted that the presence of those witnesses has been deposed too by the PW 1. It is not as if their presence had been visited as a surprise to the accused. A mere glance at cross-examination of PW 6 who lodged the FIR (Ext. I) would go to show that not even a remote suggestion was thrown to those witnesses about the presence or absence of other witnesses so as to cast a doubt about their being eye-witnesses to the occurence.
8. PW 3 is a mere relative to the deceased. He is old man of 70 years. Of course, he has not seen, the incident but he was amongst those who helped the injured in taking him to home immediately after the incident and it was on the spot that he was apprised of the name of the assailants and had also seen injury sustained by Nabin. Corroboration is forthcoming from medical evidence as well. Keeping aside for a while the FIR which was lodged without any undue loss of time.
9. It was criticised by the learned counsel for the appellant that the injured Nabin was not examined by the I.O for about 5 days. While we do not approve the conduct on the part of the I.O in not promptly examining the injured, non-examination is a lapse on the part of the investigating officer, would not result in throwing the prosecution case over boat in face of overwhelming evidence available on record. The I.O would have done well to examine the injured and record his statement. But the I.O has his own reason to offer. Since initially it was registered under Section 326 IPC, but promptness is otherwise expected. The investigation was in abayence and it was only after the death of Nabin that the investigating agency took the case with seriousness. It was argued that there is discrepancy between eye-witness's account and the medical evidence. The weapon alleged to have been used does not tally with the wound inflicted. According to PW 5, the doctor, who performed postmortem examination stated that slicked wound was seen over the vould of the scalp and right parietal bone of the scalp was fractured. There was intra-canial haemorra hage. It was suggested that such injury could not have been inflicted by a dao. Really speaking, there is no such discrepancy as pointed out by the learned counsel. The suggestion thrown to this witness have been stoutly denied. The doctor the PW 5, had seen the stiched wound and the nature of injury could well have been deposed to by the doctor who first examined the injured. The finding that it was the appellant who dealt on dao blow on the head of Nabin, as recorded by the trial court, does not call for any interference. The question that still survive for consideration is whether the trial court was justified in holding the appellant guilty of offence punishable under section 302 IPC. Although it has been oted by the learned trial Judge in his judgment that he had considered the statement of the accused and the facts and circumstances of the accused under section 313 Cr. P.C as recorded by the trial Judge, to say the least simply defeated the very purpose and object of section 313 Cr. P.C as a whole. The prosecution case revealed by as many as 7 witnesses has been put in one question reproduced below—
“Que. It has been alleged in evidence against you that at about 3 P.M on 13.7.90 you intentionally killed Nabin Chutia, a resident of Chenimari Gaon, in the jurisdiction of Dhakuakhana P.S, in furtherance of the common intention of you two. What is your statement?
10. This is hardly any examination of the accused. It does not tell offer of any opportunity to the accused to explain incriminating circumstance appearing in the evidence adduced by the prosecution. A number of such instance of perfunctory examination u/s 313 Cr. P.C is gallow and the practice needs to be curbed. It is high lime that the Sessions Judge should examine an accused u/s 313 Cr. P.C in such a manner and circumstance, which learned Sessions Judge claimed to have taken into account, as can be gathered from the evidence of the prosecution witness, are that some damage of crop was done by the pigs belonging to the accused appellant. The deceased complained about it and the accused had come to see themselves the extent of damage done. From this fact it can not be gathered that the appellant had come with intent to cause any injury or such badly injury to the deceased. Carrying of dao is not uncommon in this part of the country where villagers and cultivators generally carry a dao with them, particularly during agricultural operation. There is nothing in prosecution evidence to suggest that after dealing the first blow there was any intervening factor to prevent the accused from repeating blow. The fact that only one dao blow was given and the injured survived for 5 days thereafter and initially a case under section 326 IPC was registered, is indicative of the fact that he had no intent to commit murder. The appellant can only be held guilty for the act committed by him and the act established by the prosecution is of giving dao blow over the head of Nabin. In the instant case he could only be attributed to the knowledge that he was likely to cause injury which would cause death. The act squarely falls within the perview of later part of Section 304 IPC. The conviction and sentence under section 302 IPC as recorded by the trial court, cannot be allowed to stand. It is set aside. The appellant is found to be guilty under Section 304 Part II IPC.
11. Learned counsel appearing for the appellant, who comes from Jorhat, prays for a short lime to make submission on the question of sentence. List it on 11th November, 1994.