MUDHAN PAYENG Vs. STATE OF ASSAM

JUDGEMENT

(1.) THE appellant is an indigent defended throughout at the expense of the State. He belongs to the Backward Classes and is an illiterate. He has been convicted Under Section 302, I.P.C. and sentenced to imprisonment for life.

(2.) IT is very difficult to narrate the prosecution story as different stories stem out at different stages. The first version of the prosecution story emanating from "the Ejahar" is that on 20 -6 -1975 in the evening an altercation took place between the deceased Lashiram Mili and the accused Gangaram Payeng over damages caused to the standing paddy of the deceased by Gangaram's pigs. It was alleged that while Lashiram was returning home from his field accompanied by some boys the accused "lay in wait" by the road side, under the cover of darkness, jumped out and assaulted Lashiram with a lathi on his head. The boys who accompanied Lashiram raised alarm. Hearing the alarm the sons of the deceased P.W. 2 Mome Mili and P.W. 3 Budai Mili and P, W. 5 Musst. Menthoni Mini, the wife of the deceased came out and found the man lying with injuries. The injured was brought home but "on the third day he succumbed to his injury". The first information report was lodged 24 hours after the incident although the police station was only 10 miles away from the place of occurrence. No earthly reason has been assigned as to the delay in lodgment of the ejahar. Police registered a case Under Section 325 IPC but converted the same to Section 302 on the death of the injured. The police commenced investigation, arrested the accused and three others, submitted a charge -sheet against the four suspects including the appellant Under Section 302/34 IPC The accused stood their trial before the learned Sessions Judge where, prosecution examined 10 witnesses and no witness was examined for the accused. The learned Sessions Judge acquitted the rest of the co -accused but convicted the accused as alluded. The learned trial Judge held that Lashiram died as a result of the head injury. At this stage, it is pertinent to observe that the injury on the head of the deceased was described by Dr. P. C. Baruah, P.W, 10, as "a cut injury". We were somewhat surprised and turned to the postmortem report but were surprised to find corroboration of the fact therein, namely, that the injury was " a cut injury". We must assume in the natural course of event that the doctors take enough care and circumspection to describe the injuries during the process of autopsy. In the instant case the positive and affirmative statement of the doctor, who held the post -mortem was that the injury was a "cut injury". It was not described as an incised looking injury to cast even a doubt as to the nature of the injury. From the nature of the injury described we are constrained to hold that the weapon of assault was a sharp or at least a semi -sharp weapon and could not have been an absolutely blunt weapon. We find no scope to arrive at any other conclusion other than the finding we have reached, on appreciation of the testimony of the medical man read along with "the post -mortem Report". However, the learned Sessions Judge overlooked the nature and character of the injury. In all probability it was not brought to his notice and accordingly he assumed that the deceased died of a lacerated injury caused by a blunt weapon and not by sharp or semi -sharp weapon.

(3.) HOWEVER , the learned Judge has relied on the evidence of P.W. 7 Paramananda Mili and sustained the conviction of the appellant. Let us try to scrutinise the only beam or pillar on which the entire prosecution is grounded. Let us examine the vim of the testimonial capacity of the witness. Let us judge whether the witness is trustworthy, reliable and unimpeachable.