P.K. Saikia, J.

1. This jail appeal is directed against the judgment dated 16.07.07 passed by the learned Sessions Judge, Dibrugarh in Sessions Case No. 12/07 convicting the accused/appellant under Section 302 IPC and sentencing him to suffer R.I. for life and to pay a fine of Rs. 5000/- in default S.I. for another period of 2(two) months for the offence, aforesaid. Being aggrieved by and dissatisfied with, accused/appellants preferred this present appeal.

2. The facts necessary for disposal of the present appeal, in short, are that on 16.08.06 at about 5:00 am one Mahendra Majhi (since deceased) was coming home from Ukha Bam. When he reached the gateway of one Manik Majhi, he met some of his co-villagers, such as; Manik Majhi, Ashok Murmur and Pona Phukan He joined them and started gossiping with them as well. Precisely at that time, accused Hira Majhi arrived there with a Kalam Kutari (knife used for pruning tea bush) in his hand and started inflicting blows on Mahendra Majhi.

3. Being injured, he fell down on the ground and succumbed to the injuries at the place of occurrence itself.Out of fear, people who were with the deceased at that time and who witnessed such a terrible incident fled the scene. Thereafter, one Puran Majhi, son of the deceased, lodged an FIR with I/C Raj Gorh Police Outpost. On receiving of the FIR, I/C Raj Gorh made necessary GD entry and forwarded the same to the concerned O/C for doing needful in accordance with law.

4. In due course, on the basis of such FIR, a case was registered by O/C Tingkhong Police Station and ordered investigation. I/O who conducted the investigation, visited the P.O.,conducted an inquest on the dead body, sent the same for post mortem examination, examined the witnesses and did other needful and on completion of investigation, he submitted the Charge- sheet U/s 302 IPC against the accused person and forwarded him to the Court to face trial.

5. The learned Magistrate, before whom the charge sheet was so laid, committed the case to the Court of Sessions since the offence under Section 302 IPC is exclusively triable by the Court of Sessions. The learned Sessions Judge, Dibrugarh after the commitment of the case and after hearing the parties, framed charge under Section 302 IPC and charge, so framed, on being read over and explained to the accused person, he pleaded not guilty and claim to the tried.

6. During trial, the prosecution side has examined as many as eight witnesses including the Medical Officer who conducted autopsy on the dead body and the I/O who investigated the case aforesaid. The statement of the accused person under Section 313 CrPC was also recorded. The accused plea was of total denial. However, on being required, he declined to adduce any evidence of his own.

7. Learned Sessions Judge, Dibrugarh, on conclusion of trial and after hearing the arguments, offered by the learned counsel for the parties, held the accused guilty of offence under Section 302 IPC and convicted him there-under and sentenced him to punishment as aforesaid. It is that judgment which has been assailed herein this appeal.

8. The learned Amicus Curiae appearing for the accused/appellant has contended that the judgment,rendered by the Trial Court, is not sustainable in law inasmuch as the evidence rendered by the principal PWs is found to be contradictory, inconsistent and defective on materials points. It has also been alleged that the extra judicial confession which was relied on by the prosecution and which was retracted subsequently by the accused does not inspire confidence for the same being riddled with several serious infirmities.

9. It has further been contended that the witnesses, particularly, PW 3, was quite inimical to the accused person since he had an axe to grind against the accused person and as such, his evidence should not have relied upon by the learned Trial Court in returning a verdict of guilt against the accused/appellant.

10. Another contention that has been raised to demolish the prosecution was that the information relating to crime under consideration which reached the police first in point of time was suppressed by the prosecution with a subsequent written information and it not only makes the subsequent written information inadmissible in law but shattered the very foundation of entire prosecution case ---- argues the learned Amicus Curiae.

11. However, all those fatal legal infirmities were ignored by the learned Trial Court and concluded that prosecution has proved the charge under Section 302 IPC against the accused person, convicted him of such offence and sentenced him to punishment as stated above. He, therefore, urges this Court to set aside the judgment, rendered by the Trial Court on 16.07.07 in Sessions Case No. 12/07.

12. Controverting the above argument, advanced by the learned Amicus Curiae, the learned PP, Assam has submitted that the evidence, tendered by PWs, particularly, the principal witnesses is clear and consistent on all materials points and being so, such evidence is cogent and rational as well. They are also free from defects of any kind, whatsoever and as such, the evidence, rendered by PWs lends full credence to the claims, made by the prosecution side.

13. The evidence of the ocular witnesses, coupled with the testimonies tendered by Medical Officer and the Investigating Officer, indisputably shows that on the morning in question, the accused did kill one Mahendra Majhi and he did so with the intention of killing the later. Such being the position, learned PP has, therefore, urged this Court to dismiss the appeal, preferred by appellant.

14. We have carefully perused the judgment rendered by the learned Trial Court keeping in view the arguments, advanced by the learned counsel for the parties. However, before we could proceed further, we find it necessary to have a brief review of the evidence on record, and for this purpose, evidence of Medical Officer who conducted the post mortem examination on the dead body is first taken up for consideration.

15. Medical Officer who performed autopsy on the dead body of the deceased aforesaid was Dr. R.K. Gogoi and he was examined as PW 9. According to him, on 16.08.06, he performed post mortem examination on the person aforesaid and find as follows:-

On external appearance, I found as follows:-

One male dead body of average build, dark complexion wearing a gamocha and a jangia. Rigor mortis present on both upper and lower limbs. Body and garments were stained with blood.

Injuries:

1. One incised wound measuring 3 X 1 cm X muscle deep present on back of the right chest wall.

2. One incised wound measuring 9 X 2 cm X muscle deep present on back of the left shoulder.

3. One incised wound measuring 21 X 4 cm X brain deep on horizontal plane present on occipital area of the scalp.

4. One incised wound in horizontal plane present on middle part of back of the neck cutting the muscles of the nect 3rd survical vertebrae spinal chord, esophagus, trachea and leaving only a tage of skin in front.

5. One incised wound measuring 19 X 2 cm X brain deep present on right fronto parietal area X sagittal plane.

Examination of Cranium and Spinal, Canal, Scalp, Skull, Vertibrae, Memberance and brain incised as described.

Examination of throax- Wall and trachea incised as described. Other thoracic organs were found healthy.

Examination of abdomen-Esophagus incised as described. Others adnominal organs were found healthy.

Opinion

Cause of death was shock and hemorrhage resulting from injuries described. All injuries were ante mortem and caused by heavy sharp cutting weapon and homicidal in nature. Approx. time since death; 6 to 18 hours.

16. Evidence of Doctor clearly reveals that the ante mortem wounds on the body of the deceased were caused by sharp edged weapon and such wounds occasioned death of the deceased.Death was, therefore, homicidal in nature. So situated, let us examine the evidence of principal witnesses who claim to have seen the incident under enquiry.

17. They are PW 2 Sri Nirada Majhi, PW 3 Sri Manik Murmur, PW 4 Pona Phukan and PW 5 Sri Ashok Murmur. In his evidence, PW 2 has stated that on the fateful day, in the morning, his father was coming home from Ukha Bam. On way home, he saw some persons sitting near the house of one Manik Kumar. The persons, so chatting, were Manik Majhi, Ashok Murmur and Pona Phukan. The deceased immediately joined them and started gossiping with those persons as well.

18. While they were so gossiping at the place aforesaid, the accused appeared there armed with a Kulam Kutari and inflicted blows with such weapon on his father and he did so from the back side of his father. When his father turned backward to see who had assaulted him, the accused inflicted another blow on his neck. Being so attacked, deceased collapsed on the ground. After inflicting the knife blows in quick succession, the accused fled the scene. PW 2 witnessed the incident from the distance of 32-40 ft. only. In his cross examination, he has stated that the occurrence took place at about 8:00 am.

19. PW 3 Sri Manik Murmur is found saying that on the fateful day, gossiping over in the morning at about 5:30 am, he was brushing his teeth. Ashok Murmur and Pona Phukan were also with him at that time gossiping over some matters of general importance. When they were so gossiping in front of the house of Manik Murmur, Mahendra Majhi came there and joined them too. Precisely at that time, the accused appeared there, armed with Kulam Khutari and started inflicting blows on Mahendra Majhi from his back side.

20. Immediately thereafter, the accused fled the scene. The injured Mahnedra Majhi succumbed to the injuries at the place of occurrence itself. In his cross examination, PW 3 admitted that Mahendra Majhi was sitting on his back side and that he was busy brushing his teeth. He has further stated that he saw the accused running away from the place of occurrence with a dao in his hand.

21. PW 4 Shri Puna Phukan has stated that on the fateful day, he along with Mahendra Majhi, Manik Murmur and Sidheswar were gossiping in front of the house of Sidheswar In the meantime, the accused came there and left the scene but only to reappear at the same place little later. Appearing at the place of occurrence for the second time, he inflicted dao blows on the deceased. Having seen it, he run away from the place of occurrence and he returned thereto only when Police came to the place of occurance.

22. Arriving there, he found the body of the deceased lying in the place aforesaid. Police seized a Kalam Kutari from the possession of the accused person in presence of witnesses. He identified Materials Ext.1 as the Kalam Kutari which police seized and which was allegedly used in committing the crime in question. In his cross examination, he admitted that he saw the accused inflicting blows with a weapon but he could not recognize whether it was a dao or a knife. He also admitted that he could not see wherefrom the dao was recovered.

23. PW 5 Sri Ashok Kumar too rendered evidence on similar lines, as he is also found saying that on the fateful day in the morning at about 5:30 am, he was discussing some matters with Manik Majhi, Ashok Murmur and Pona Phukan at the place of occurrence. Mahendra was also with them at that time. When they were so gossiping at the place of occurrence, the accused appeared there and started brandishing something on the head of the deceased.

24. Having seen it and having been frightened by the conduct of the accused, he fled the scene. Sometime later, they found Mahendra lying death at the place of occurrence. In that connection, he rendered a statement before a Magistrate during course of the investigation which was proved as Ext.4. In his cross examination, he has stated that he could not recognize the instrument which the accused was brandishing over the head of the deceased.

25. Now, let us consider the evidence, rendered by PW 6, PW 7and PW 9. PW 6 Shri Raghu Majhi deposes that on the morning in question, he was preceding towards their village pond. On his way to pond, he met accused who was having a knife in his hand. Accused told him that he cut Girdhari and was proceeding to Police Station. Having said so, he left such place. As he arrived at the place of occurrence which is situated on the road, just in front of the house of one Sikeswar Majhi, he saw the dead body of Girdhari lying at such place. In his cross examination, he has admitted that he did not witness the alleged incident.

26. PW 7 Sikeshwar Majhi deposes that one day,at about 5:00 am, when he was preparing to go somewhere, one Puna (PW 4) came to his house and told him that the accused killed Mahendra and his body is lying in the gateway of his house. Being so informed, he went to the place aforesaid and found Mahendra Majhi lying dead near his gateway. He also noticed the neck of the deceased being slit. Sometime thereafter, Police came and sent the dead body to hospital.

27. PW 8 Sri Basanta Phukan is a Gaonburah of the village concerned. He deposes that the incident was reported to him by one Lakeshwar Majhi. On the basis of such information, he wrote an FIR and sent one Puran Majhi and two other persons to Police Station to lodge an FIR with Police. He however, denied that Ext.9 FIR was not written by him.

28. PW 10 Dilip Mili is a Sub-Inspector of Police and the I/O of the case aforesaid. According to him, on16.08.06, he received the FIR (Ext.9) from PW 1 Puran Mahji. On the basis of such FIR, he made the GD entry and forwarded the FIR to the O/C concerned for doing needful in accordance with law. In the course of the investigation, he visited the place of occurrence along with the Executive Magistrate, got an inquest done on the dead body.

28A. Then he sent the dead body to hospital for post mortem examination. In the meantime, he prepared the sketch map of the place of occurrence, made attempt to arrest the accused person and succeeded in arresting him at Dirburagh Police Station where he surrendered on 17.08.06. It is in his evidence that he also seized the knife used in killing the deceased on the strength of Ext.2

29. During the course of investigation, he got the statement of witnesses recorded by the Magistrate. But before he could complete the investigation, he was transferred and as such, one B.K. Das, S.I. of Police completed the investigation and submitted charged sheet before the Court in the course of time which PW 10 proved as Ext.4. In his cross examination, he is found saying that in Ext.9, Ext.9 (1) is the signature of informant Sri Puran Majhi.

30. We have already found that deceased died on 16.08.06 and his death was homicidal in nature. The prosecution wants this Court to believe that such death was caused by none other than accused Hira Majhi. In order to ascertain the above claim, we have very carefully put the evidence on record on scrutiny, more particularly, the evidence of PW 2, PW 3, PW 4 and PW 5 all of them whom claim to have seen the incident under consideration.

31. On perusal of their evidence on record, we have found that on the fateful day, in the morning, the deceased was sitting with those witnesses at the place of occurrence gossiping over some matters of general importance. Their evidence also reveals that accused came to the place of occurrence by that time and inflicted several blows on the deceased with a knife for which he dropped down to the ground and succumbed to the injuries at the P.O. itself. The accounts of incident, as rendered in the FIR (Ext.9), lend more credence to the prosecution story, told and retold by PWs aforesaid.

32. We have already found that PW 6 and PW 7 came to the place of occurrence moments after the alleged incident and found Mahendra Majhi lying dead at such place with vary many cut wounds on his person. Their testimonies to the effect that they found the deceased at the place of occurrence with cut wounds, and that too, soon after the alleged incident ensure truthfulness of claim of prosecution that on the morning in question, the accused came to the P.O., attacked and injured the deceased with a knife which occasioned his instantaneous death at the P.O. itself.

33. Close on the heel of above, comes the evidence of PW 9, the Medical Officer. According to him, the deceased died a homicidal death, occasioned by injuries inflicted with sharp edged weapon and it occurred about 6/18 hours before his conducting the post mortem examination. The testimony of Doctor (PW 9), therefore, supports the prosecution case on the point of nature of wounds, sites thereof, weapon used in committing the wounds as well as time of death and such evidence fortifies more and more the claim of the prosecution that the accused, and none else, extinguished the life of the deceased at the place of occurrence on 16.08.06 at about 5:00 am.

34. On a conjoint reading of the above evidence, we have found that on the fateful morning, the accused did subject deceased Mahendra Majhi to a series of assault with sharp edged weapon which occasioned his instantaneous death at the place of occurrence itself. No other conclusion is found plausible on materials on record.

35. The prosecution makes one more effort to prove the case against the accused person and this time, it banks on the evidence, rendered by PW 6. According to PW 6, on the morning, aforesaid, he met the accused while he was proceeding towards the village pond. At that time, the accused was having a knife in his hand. As he met the accused, he told PW 6 that he cut one Girdhari and was proceeding towards the Police Station. There is nothing on record to disbelieve such a claim made by PW 6. Quite contrary to it, the evidence on record shows that the accused made such a statement voluntarily.

36. The fact that all the witnesses, viz, PW 2 to PW 5 saw the accused killing the deceased subjecting him to barrage of assault with knife, the fact that moments later, PW 6 saw the accused with a knife in his hand as well as the fact that Doctor too found several cut wounds on the body of the deceased again corroborated the extra judicial confession on material points. Such revelations are also testimonies to the fact that extra- judicial confession which the accused made to PW 6, was truthful as well.

37. The extra-judicial confessional which is found to be truthful and which is also found to be voluntary as well provides prosecution case with one more firm footing and such extra-judicial confession together with other evidence, detailed hereinbefore, clearly establish that the accused did kill Mahendra Majhi on 16.08.05 in the morning.

38. The prosecution case, however, comes under severe criticism for the following reasons:-

(i) The confession made by the accused was retracted and as such, it should not have been believed;

(ii) There were some contradictions, inconsistencies in the testimonies rendered by the PWs, particularly the testimonies tendered by the principal PWs and

(iii) The information which was lodged with the Police first point of time was suppressed with subsequent written information which is clearly indicative of prosecution case being premised on false allegation.

39. We have given our thoughtful consideration to the above contention. Coming to the first allegation, it may be stated that a confession cannot be jettison or thrown away only for some being retracted by the accused person subsequently. In this context, we can profitably peruse the decision of our own High Court in the case of Naresh Bhuyan Vs. State of Assam reported in 2005 (3) GLT 113, wherein it was held as follows:-

That non-retracted confession is rearity in criminal cases. To retract from confession is the right of the accused and all the accused against whom confessions were produced by the prosecution have invariably adopted that right. It would not be judicious to jettison a confession on the mere premise that its maker has retracted from it. The Court has a duty to evaluate the evidence concerning the extra judicial confession by looking at all aspects.

40. We have already found that extra confession rendered by the accused found to be truthful and voluntarily and as such, confession, aforesaid, cannot be rejected only for same being retracted subsequently.

41. Coming to the second allegation, we have found that some contradictions, inconsistencies had occurred in the testimonies of PWs. But it has repeatedly been held that contradictions, inconsistencies which do not go to the root of the case are to be ignored since such defects most of the time ensures of truth and truthfulness of the witnesses who tendered such evidence before this Court since a parrot like repetitions may be the product of extensive tutoring.

42. In this context, it is worth noting what Honble Supreme Court has said in the case of Takdir Samsuddin Sheikh Vs. State of Gujarat and another reported in : (2011) 10 SCC 158 [LQ/SC/2011/1410] , where it was held as follows:

12. It is settled legal proposition that while appreciating the evidence, the court has to take into consideration whether the contradictions/omissions/improvements/embellishments, etc. had been of such magnitude that they may materially affect the trial. Minor contradictions, inconsistencies, omissions or improvements on trivial matters without affecting the case of the prosecution should not be made (sic make) the court to reject the evidence in its entirety. The court after going through the entire evidence must form an opinion about the credibility of the witnesses and the appellate court in natural course would not be justified in reviewing the same again without justifiable reasons.

43. Being so, the second allegation too is found totally unequal to the task of derailing the prosecution case.

44. Coming to the third allegation, we have found that PW 10 has very categorically stated that the first written information was furnished to him by none other than Puran Majhi and such information was proved as Ext.9. There is absolutely no evidence on record to show that any other information in respect of the alleged incident had ever been lodged with the Police. Being so, this allegation also is found to be without any substance and as such, same stands rejected.

45. In view of what we have discussed herein before and what have emerged there from, we are unable to persuade ourselves to accept the claim of accused/appellant that he is innocent. Rather, we are of the opinion that accused killed the deceased and he did so with the intention of killing the deceased at the place of occurrence on the morning of 16.08.06.

46. Being so, we have found no reason to interfere with the judgment of the Trial Court convicting the accused/appellant of offence under Section 302 IPC and sentencing him to punishment as aforesaid.

47. In the result, the appeal fails.

48. Return the LCR.

49. We appreciate the assistance rendered by Ms J Huda, learned Amicus Curiae and direct that an amount of Rs. 5000/- be paid to Ms J Huda, as her remuneration by the State Legal Services Authority. In view of the provision prescribed by Section 357(A) Cr.P.C. the victim or his/her dependents are entitled to get compensation for rehabilitation in appropriate cases. Therefore, for the sake of brevity and in the light of our discussions, made in Criminal Appeal No. 93(J)/2005 (disposed on 22.12.2011), with regard to the victim compensation as provided by Section 357(A) Cr.P.C., we make the following directions:-

1. As an interim measure an amount of Rs. 50,000/- shall be deposited by the State Government with the District Legal Services Authority of Dibrugarh District within a period of two months from this date. The District Legal Services Authority, on receipt of the said money, shall make an enquiry to ascertain as to whether, there is dependent(s), who suffered loss and injury as a result of death of the deceased and if such dependant(s) or legal representative(s) need any rehabilitation.

2. Upon such enquiry, if it is found that the dependent(s), if any, need rehabilitation, then the District Legal Service Authority shall initially release the said interim amount and thereafter direct payment of adequate compensation, as may be prescribed by the scheme to be prepared by the State Government.

3. It is made clear that if the District Legal Services Authority, after due enquiry, arrives at the findings that there is no dependent(s) or that the dependant(s) of the deceased/victim does not required any rehabilitation, then the District Legal Services Authority, shall refund the said amount of Rs. 50,000/- without delay, in favour of the State Government.

4. A copy of this judgment be furnished to the 1) Chief Secretary to the Govt. of Assam, 2) Secretary, State Legal Services Authority, Assam and Secretary, District Legal Services Authority, Dibrugarh for doing needful as indicated above