JUDGMENT Amitava Roy, J. 1. Being aggrieved by the judgment and order dated 30.9.2003 passed by the learned Additional District and Sessions Judge, Tinsukia, in Sessions Case No. 38 (T)/2003 convicting the accused Appellant under Section 302 of the Indian Penal Code (for short hereafter referred to as the Code) and sentencing him to suffer life imprisonment and also to pay a fine of Rs. 1,000/- in default to undergo rigorous imprisonment for further one year, the accused Appellant is in appeal. 2. We have heard Mr. A. Ojah, learned Amicus Curiae for the accused Appellant and Mr. Das, learned Public Prosecutor, Assam. 3. The prosecution case unfolds with an FIR filed by one Shri Lakhmi Ram Koiri before the Officer-in-Charge, Tinsukia Police Station, alleging that in the previous night, his son Moni Ram Koiri had been hacked to death with a dao by the accused Appellant while he (deceased) was on his way home after witnessing a cinema at Kachujan Tea Estate. Tinsukia P.S. Case No. 477/2002 under Section302 of the Code was registered. The FIR incidentally disclosed that the occurrence had been seen by the informant's minor sons. 4. On the completion of the investigation, charge sheet was submitted against the accused Appellant under the aforementioned provisions of the Code. Eventually charge was framed by the learned Trial Court also under Section 302 of the Code to which he pleaded "not guilty". In the trial that followed, the prosecution examined nine witnesses including the Investigating Officer as well as the Doctor who had performed the post mortem on the dead body of the deceased. The defence did not examine any witness. After recording the statements of the accused under Section 313 of the Code of Criminal Procedure, by the impugned judgment and order, he was convicted and sentenced as above. 5. The learned Amicus Curiae has argued that a bare reading of the evidence of PW 2 and PW 3 offered as eye witness of the incident in clear terms reveals their inability to identify the accused Appellant as the assailant and, therefore, his conviction is per se unsustainable in law. As admittedly at the place of occurrence there was no light, it was impossible for the said witnesses in the month of December of the year to identify the assailant and that, therefore, no reliance on their testimony ought to have made by the learned Court below. As admittedly at the place of occurrence there was no light, it was impossible for the said witnesses in the month of December of the year to identify the assailant and that, therefore, no reliance on their testimony ought to have made by the learned Court below. Without prejudice to the above, Mr. Ojah has contended that as according to the eyewitness, the accused Appellant had dealt the first assault from behind, the dead body ought to have borne an injury corresponding thereto. As the post mortem report does not disclose any injury of that kind on that ground alone the prosecution case ought to have been rejected. Pointing out that the number of injuries found on the dead body at the time of the inquest were different from those in course of the post examination, the learned Amicus Curiae has sought to impress upon us that on that count as well the prosecution case ought to be dismissed. 6. The learned Public Prosecutor as against this has argued that as no trace of animosity between the eyewitness and the accused has surfaced, there is no reason why their evidence ought to be discarded. These two witnesses having provided a vivid narration of the incident projecting the accused as the assailant, the judgment and order ought not to be interfered with in the interest of justice. According to Mr. Das, having regard to the weapon of assault and the nature of injuries received by the deceased, there is no scope for any doubt that the accused Appellant had been the perpetrator of the crime and that therefore, he has been rightly sentenced by the learned Trial Court. According to him, the inquest having been performed by the police, there was every possibility that all the injuries might not have been noticed at that stage and that, therefore, detection of more injuries in course of the post mortem does not in any way adversely affect the prosecution case. He has further submitted that the weapon of assault having been recovered by the police on being led by the accused Appellant, the evidence to that effect is admissible in terms of Section 27 of the Evidence Act and the same being unimpeachable piece of proof establishing his guilt, the impugned judgment and order does not warrant any interference, he urged. 7. We have carefully analysed the records and the arguments based thereon. 7. We have carefully analysed the records and the arguments based thereon. Admittedly the case of the prosecution hinges upon the evidence of PW2 and PW 3, who incidentally are the only eyewitness to the incident. At the first place, the FIR, Exhibit (1) mentioned about these two witnesses to have seen the incident. Be that as it may, to adequately appreciate the rival contentions marshalling of the evidence on record, briefly though, is indispensable. 8. PW1, the father of the deceased and the informant in addition to proving the FIR, Exhibit-1 and his signature thereon, Exhibit 1(1), stated that on the date of the occurrence his son (deceased) had gone to enjoy a cinema show at Kachujan Tea Estate being accompanied by his another son, Jugnu and daughter, Minu Koiri. They on the next morning reported to him that the accused Appellant had chased the deceased last night on their way back home after the cinema show. At or about the same time the witness having been reported by other garden labourers that his son was lying dead at Section No. 2 of the said Tea Estate, he rushed thereto and found the deceased lying in that condition. The witness stated to have seen a cut injury on the head of the deceased dividing it (head) into two parts. He also proved the inquest report, Exhibit 2 his signature thereon, Exhibit 2(1). In cross-examination he admitted not to have seen the incident and that the FIR was written by one Phanchu Tanti as narrated by him. 9. PW2, Jugnu Koiri, affirmed to have accompanied the deceased to enjoy a cinema show in the Kachujan Tea Estate on the date of occurrence. He further deposed that after the show while he along with the deceased and his sister Minu Koiri were returning home at about 1 A.M. and were near a shop by the road, the accused Appellant came from behind and gave a dao blow on the deceased. The injured then ran through the tea garden and the accused chased him. According to the witness, he along with his sister returned home and having heard the next morning that a man was lying dead inside the tea garden went there and identified the dead body to be that of his brother. He also mentioned to have seen cut injury on the head of the deceased. According to the witness, he along with his sister returned home and having heard the next morning that a man was lying dead inside the tea garden went there and identified the dead body to be that of his brother. He also mentioned to have seen cut injury on the head of the deceased. In cross-examination, this witness stated that the night was dark and that he along with his sister was proceeding ahead of the deceased. He stated that on hearing the scream of his brother, he looked behind to find him (deceased) running inside the tea garden being chased by the accused Appellant. He admitted that there was no light at the place of occurrence but insisted to have partly seen the accused Appellant while he was chasing the deceased. He admitted not to have reported the said incident to the members of the family out of fear. 10. PW3, Minu Koiri, is the daughter of the informant who had accompanied PW 2 and the deceased to the cinema show. According to the witness, on the date of the occurrence, while they were returning home after the cinema show, the accused gave a dao blow on her deceased brother and chased him in the tea garden. She also stated that in the next morning having heard that a dead body was lying in the Tea Estate they went there and found her brother dead. In cross-examination she also affirmed that the night was dark and she along with his brother, PW2, had been proceeding ahead of her deceased brother. She however confirmed that the accused Appellant had inflicted a dao blow on the deceased. She of course added to have seen "someone" chasing her brother but could not recognize him. In reply to the query by the Court, the witness testified that the accused Appellant was known to her from before the occurrence. 11. PW4, Shri Nipen Pradhan, is a casual labourer of the garden. He is not an eyewitness but a witness to the seizure of the dao and trouser by the police vide Exhibit 3. He also proved his signature, Exhibit 3 (1). In cross-examination, he admitted of being unaware as to who had committed the offence. 11. PW4, Shri Nipen Pradhan, is a casual labourer of the garden. He is not an eyewitness but a witness to the seizure of the dao and trouser by the police vide Exhibit 3. He also proved his signature, Exhibit 3 (1). In cross-examination, he admitted of being unaware as to who had committed the offence. The evidence of PW5, a tea garden Contractor is relevant to the extent of his statement that he had heard the accused Appellant apprise the police that he could show the place where he had concealed the dao. This witness further stated that the police recovered the dao on being shown by the accused Appellant. In cross-examination, this witness stated that he had taken out the dao from the house of the accused and that at the relevant time the latter was standing outside under handcuff. PW6, Sri Kamal Tanti, is also a witness to the seizure of the dao vide Exhibit 3. None of these witnesses (PW4, PW 5 and PW 6) could identify the dao as the same was not produced in Court. PW7, Sir Mridul Baruah, a Welfare Officer of the Tea Estate proved the inquest report, Exhibit 2 with his signature Exhibit 2 (3) thereon. This witness stated inter alia that he at the relevant time saw a long cut injury on the face near the nose of the deceased. In cross-examination, this witness confirmed that the accused Appellant was a labourer of the Tea Estate. 12. PW8, Sri Atul Gogoi, is the Investigating Officer who narrated the steps taken by him in course of the investigation culminating into chargesheet against the accused Appellant under Section 302IPC. He stated to have recovered the dao from the house of the accused Appellant on being led by him. 13. PW9, Dr. B.C. Roy Medhi who had performed the post mortem on the dead body had found the following injuries. (1) One cut injury 5 cm x 2 cm x bone cut deep on forehead on nasion upper part of the nose. (2) One cut injury 2 x .5 cm x maxilla bone cut deep on left cheek. (3) One cut injury 1.5 cm x 0.5 cm x mandible cut deep on left cheek. (4) One cut injury cutting the upper part of left ear. (2) One cut injury 2 x .5 cm x maxilla bone cut deep on left cheek. (3) One cut injury 1.5 cm x 0.5 cm x mandible cut deep on left cheek. (4) One cut injury cutting the upper part of left ear. (5) One cut injury 3 x 1 cm x scalp layers deep on lower parietal region of scalp, 2 cm behind left ear. (6) One cut injury 4 x 1 cms x scalp layers deep on upper part of left parietal region. (7) One cut injury 4 x 1 cm x scalp layers deep on left parietal region just below injury No. 6. (8) One cut injury 4 x 1 cm x scalp layers deep on mid frontal region. (9) One cut injury 8 cm x 2 cm x scalp layers deep on mid vertex scalp. (10) The right ear also cut. On neck, one oblique ligature mark (pressure abrasion) 12 cm x 2 cms present in from of neck and part of right and left side of neck above thyroid cartiledge level. The ligature mark is dry, depressed and parch mentised (anti mortem ligature mark). 14. According to this witness, death had occurred due to the combined effect of coma and asphyxia as a result of the injuries sustained on the head and ligature mark on the neck. All injuries were ante mortem and homicidal in nature. He stated that the cut injuries 10 in number were caused by moderately heavy sharp cutting weapon and the ligature mark on the neck by blunt force object. He proved the post mortem report, Exhibit 5. The accused in his statement under Section 313 Code of Criminal Procedure plainly denied his involvement in the alleged offence. 15. The evidence as above, unassailably demonstrate that the case of the prosecution is founded on the evidence of PW2, PW 3 and PW 9, the Doctor. From the materials on record, it is evident that on the date of the examination of PW2 and PW3, they were aged 15 years and 8 years respectively. They were thus aged 14 years and 7 years on the date of the occurrence. From the materials on record, it is evident that on the date of the examination of PW2 and PW3, they were aged 15 years and 8 years respectively. They were thus aged 14 years and 7 years on the date of the occurrence. The evidence of PW2, in our view, does not admit of any reasonable doubt to discard the same vis-a-vis the incident narrated by this witness though he had been categorical enough to state that the accused Appellant had come from behind to deal a dao blow on the deceased and had thereafter chased him (deceased) through the Tea Garden. He withstood the cross-examination by asserting that he had partially seen the accused Appellant while he was chasing his deceased brother. This he stated inspite of his admission that it was a dark night and that there was no light at the place of occurrence. The evidence of PW 3 though that of a child witness, is in conformity with that of her elder brother PW2. Though she had faltered in her cross-examination by once stating that she had seen the accused Appellant inflicting the dao blow and then conceding that she could not recognize the accused person chasing the deceased, we are of the considered opinion that having regard to their tender age, these deficiencies are not fatal enough to reject their testimony wholly to be unworthy of any credence whatsoever. The evidence of PW 2 and PW 3 read together, in our estimate, does not admit of any reasonable doubt with regard to the complicity of the accused Appellant in the crime. The inconsistencies pointed out on behalf of the accused Appellant do not appeal to us to reject the prosecution case on the basis thereon. The minor omissions on their part in course of their deposition at the trial while narrating the incident on the other hand introduce them to be truthful witnesses. The evidence of PW2 and PW3 amongst others also prove that the deceased was seen last being chased by the accused Appellant with a dao in hand to be found dead the next morning with multiple cut injuries in his body. The evidence of PW2 and PW3 amongst others also prove that the deceased was seen last being chased by the accused Appellant with a dao in hand to be found dead the next morning with multiple cut injuries in his body. It is not unlikely, having regard to the tender age of PW2 and PW3, they were thoroughly terrified by witnessing the ghastly incident and, therefore, in that state of mind had omitted to mention about the same to family members in the late hours of the night. Their failure to disclose the incident in the very same night therefore, according to us, does not detract from the veracity of their statement on oath at the trial. 16. The injuries detected on the dead body are several and to be precise 10 and as opined by the medical witness have been caused by moderately heavy sharp cutting weapon. The weapon of assault having been identified to be a dao one can logically relate the same to the injuries. 17. The variance in the number of injuries on the dead body at two different points of time i.e. at the inquest and post mortem examination also is not vitiating enough to demolish the prosecution case. 18. On a totality of the considerations as above, we are of the opinion that the conviction and sentence of the accused Appellant have been rightly recorded by the learned Trial Court. The defence has failed to demonstrate any infirmity in law or on facts to warrant interference therewith. The appeal therefore lacks in merit and is accordingly dismissed. Before parting, we wish to record our appreciation for the assistance rendered by Mr. Ojah as the learned Amicus Curiae in the appeal. We order payment of Rs. 3500/- as his professional fees to be made forthwith. Appeal dismissed