JUDGMENT Ranjan Gogoi, J. 1. Aggrieved by the judgment and order dated 9.9.2004 passed by the learned Sessions Judge, Nagaon, in Sessions Case No. 168(N)/2000 the accused/Appellant, who has been convicted under Section 302, IPC and sentenced to undergo rigorous imprisonment for life, has filed this appeal from Jail. Additionally, the accused/Appellant has been convicted under Section 324, IPC and sentenced to undergo rigorous imprisonment for one year. 2. The short case of the prosecution is that at about 5.30 a.m. on 24.1.1999 PW4, Badan Gayan, lodged a FIR in the Samaguri Police Station stating that at about 5.30 p.m. of the previous day, i.e., 23.1.1999 while his elder brother Gajen Gayan and younger brother Nagen Gayan were proceeding on the PWD road of the village the accused/Appellant caused grievous injuries to both of them by hacking with a dao. According to the first informant, the said incident had taken place in front of the house of one Girish Gayan (PW5). In the FIR it was further mentioned that both the injured were taken to the Nagaon Civil Hospital but the elder brother of the first informant, i.e., Gajen Gayan died at about 9.30 p.m. 3. On receipt of the aforesaid ejahar Samaguri P.S. Case No. 9 of 1999 under Sections 326/302, IPC was registered. The case was investigated by PW9, Kumud Chandra Gogoi, S.I. of police. In the course of investigation inquest was held on the dead body which was sent for post mortem examination. Statement of persons acquainted with the crime alleged was recorded by the investigating officer under Section 161, Code of Criminal Procedure. At the conclusion of investigation charge sheet was submitted against the accused/Appellant under Sections 302/324, IPC. The offence under Section 302, IPC. being exclusively triable by the Court of Sessions the case was committed to the Sessions Court at Nagaon by the learned Sub-Divisional Judicial Magistrate, Nagaon by order dated 18.8.2000. 4. In the Court of Sessions separate charges under Sections 302 and 324, IPC were framed against the accused/Appellant to which he pleaded not guilty and wanted to be tried. In the trial 10 witnesses were examined on behalf of the prosecution. One defence witness, i.e., the accused/Appellant himself was examined. The statement of the accused was also recorded under Section 313, Code of Criminal Procedure. In the trial 10 witnesses were examined on behalf of the prosecution. One defence witness, i.e., the accused/Appellant himself was examined. The statement of the accused was also recorded under Section 313, Code of Criminal Procedure. Thereafter, at the conclusion of the trial the accused/Appellant has been convicted and sentenced, as aforesaid, giving rise to the present appeal. 5. At the outset, it will be necessary to notice, though very briefly, the evidence tendered by the prosecution witnesses in the case. 6. PW1, Dr. Sushil Das, had examined Nagen Gayan (PW6) who was injured in the same incident in which the deceased had died. In the examination conducted by PW1 on 23.1.1999 the following injuries were found on the body of Nagan Gayan (PW6). 1. Sharp cut injury over left thumb measuring 1/2" x 1/4" x 1/4" with active bleeding. 2. Sharp cut injury back of left side of chest measuring 1" x 1/2" x 1/2" with active bleeding. Any sharp cutting weapon could have caused those injuries. The opinion is reserved as the investigation findings are not available. 7. PW2, Smt. Mamoni Gayan, is the sister of the deceased. According to her, the deceased had come home on leave in the month of January and in the evening of the day of occurrence he had gone out of the house. Soon after the deceased had left hearing a hue and cry from the road she along with her younger sister Nitumony Gayan (PW3) and brother Nagen Gayan (PW6) came out of the house. According to this witness, they could see the accused/Appellant hacking the deceased with a dao. PW2 had also deposed that Nagen (PW6) tried to intervene and he was also hacked by the accused as a result of which he had sustained injuries in the hand and in the back. PW2 had specifically deposed that after her injured brother Gajen was brought home he had stated that it is the accused/Appellant Jiban who had caused the injuries to him. 8. PW3, Smt. Nitumoni Gayan, is the other sister of the deceased who had corroborated the evidence of PW2 in all material particulars. This witness had also stated that the deceased had told the family members that it is the accused/Appellant Jiban who had hacked him. 9. 8. PW3, Smt. Nitumoni Gayan, is the other sister of the deceased who had corroborated the evidence of PW2 in all material particulars. This witness had also stated that the deceased had told the family members that it is the accused/Appellant Jiban who had hacked him. 9. PW4, Badan Gayan, is another brother of the deceased who in his deposition had stated that at the relevant point of time he had gone to the market. While returning home people informed him that his brother Gajen had been hacked by Jiban. This witness had also stated that, on being asked, the deceased Gajen had informed him that it is the accused/Appellant Jiban who had hacked him. 10. PW5, Girish Gayan, is the person in front of whose house the incident is alleged to have occurred. PW5 in his deposition had stated that he had met the deceased at about 6.10/6.15 p.m. and at that time he was not in a position to say anything. 11. PW6, Nagen Gayan, is the injured who had corroborated the evidence tendered by P Ws 2 and 3. On the other hand. PW7, Sri Atul Gayan, in his deposition had stated that the incident took place at about 5/5.30 p.m. and while the deceased Gajen was going along the road with another young boy the accused/Appellant Jiban was following him with a dao in his hand. This witness had stated that while he was at a distance of about 5/6 nals he could see the accused/Appellant hacking the deceased with the dao which he was carrying. According to this witness, he raised an alarm and immediately the family members of the deceased came running to the place of occurrence. PW7 had also deposed that PW6 Nagen also came to the place of occurrence on hearing the alarm raised. This witness had further deposed that they had brought the injured Gajen home where after he was taken to the Nagaon Hospital. In cross-examination this witness had denied that he had not stated before the police that the accused/Appellant Jiban was following Gajen with a dao in his hand. 12. PW8, Dr. Brij Mohan Rai Khederia, had performed the post mortem on the deceased on 24.1.1999. In cross-examination this witness had denied that he had not stated before the police that the accused/Appellant Jiban was following Gajen with a dao in his hand. 12. PW8, Dr. Brij Mohan Rai Khederia, had performed the post mortem on the deceased on 24.1.1999. This witness had stated that in the course of the post mortem examination he had found the following injuries on the deceased: Wound incised over the right side of face and scalp up to right tempo parietal region extending from ear (right) to parietal right of scalp. Size 20 cm x 3 cm x bone deep. Underlying bone was cut, fractured and brain matter was injured. Right and left lung were congested. Heart both sides were full. Stomach was empty. Bladder was empty. Organ of generation was healthy. Brain right temporal and parietal lobe were lacerated. The wound described was ante mortem and caused by sharp edged heavy weapon. 13. PW9, Kumud Chandra Gogoi, is the Investigating Officer of the case who, inter alia, had stated in his cross-examination that PW7, Atul Gayan, had not stated before him that the accused/Appellant Jiban was following the deceased Gajen with a dao in his hand. 14. PW10, Birahari Singha, has been examined to prove the inquest report which is marked as Ext-3 in the case. 15. From a scrutiny of the evidence of the prosecution witnesses, the main part of which have been noticed above, it would appear that the prosecution in order to bring home the charge against the accused/Appellant relies on the evidence of P Ws 2, 3 and 6 as eye witness to the occurrence apart from the evidence of P Ws 4 and 7. A scrutiny of the evidence tendered by the eye witnesses, i.e., P Ws 2, 3 and 6 would indicate that if the said witnesses are to be believed the crime alleged against the accused/Appellant would stand fully proved and established. 16. Ms. A. Ajitsaria, learned Counsel who was appointed as the amicus curiae in the case, has submitted that all the witnesses who had supported the prosecution case, except PW7, are related to the family of the deceased and the injured PW6. The court, therefore, should be slow in accepting the evidence tendered by the said witnesses. 16. Ms. A. Ajitsaria, learned Counsel who was appointed as the amicus curiae in the case, has submitted that all the witnesses who had supported the prosecution case, except PW7, are related to the family of the deceased and the injured PW6. The court, therefore, should be slow in accepting the evidence tendered by the said witnesses. Pointing out to the cross-examination of PW2 and the statement of the accused/Appellant recorded under Section 313, Code of Criminal Procedure learned amicus curiae has contended that there was a cross-case instituted by the party of the accused/Appellant against the eye witnesses to the effect that it is the deceased Gajen and his two brothers, i.e., Badan (PW4) and Nagen (PW6) who had together assaulted the accused/Appellant. Such assault, according to the learned amicus curiae, was on account of the fact that the accused/Appellant had a love affair with PW2, the sister of the deceased and P Ws 4 and 6. The learned amicus curiae has also pointed out that from the evidence of PW2 it transpires that immediately after the incident 50/60 people had gathered at the place of occurrence and, therefore, it may not have been possible for P Ws 2 and 3 to be eye witness to the occurrence. Furthermore, according to the learned amicus curiae, the medical evidence on record discloses only one injury on the deceased and, therefore, the claim made by P Ws 2 and 3 to be the eye witness to the assault on the deceased by the accused is inherently incredible as the said witnesses had come out of their house on hearing the hue and cry. It is also pointed out that the version unfolded by P Ws 2 and 3 as well as PW6 that Nagen Gayan (PW6) had gone to the place of occurrence on hearing the alarm/hue and cry goes counter to the version stated in the FIR which is to the effect that the deceased Gajen and Nagan (PW6) were walking together on the road when the incident had happened. Learned amicus curiae has also pointed out that the evidence of all the witnesses that the deceased had made a declaration shortly before his death implicating the accused/Appellant stands belied by the evidence of PW5, Girish Gayan, who clearly stated that the injured Gajen was not in a position to speak anything. Learned amicus curiae has also pointed out that the evidence of all the witnesses that the deceased had made a declaration shortly before his death implicating the accused/Appellant stands belied by the evidence of PW5, Girish Gayan, who clearly stated that the injured Gajen was not in a position to speak anything. The impartiality of PW5, he not being a related witness has also been stressed upon. Lastly, the learned amicus curiae has pointed out that the evidence of PW7 should be disbelieved as from the evidence of the investigating officer it is amply clear that the version unfolded by PW7 in court is an improvement over what was stated by him at the time of investigation. 17. On the other hand, Mr. Z. Kamar, learned Public Prosecutor, has vehemently urged that the eye witnesses should not be disbelieved by the court merely because they happened to be related to the deceased. The learned Public Prosecutor has pointed out that in the facts and circumstances surrounding the incident and having regard to the place or occurrence the presence of the family members of the deceased is natural. The learned Public Prosecutor has further pointed out that the inconsistency between the FIR version and what was stated by the eye witnesses in court is a minor one which ought to be ignored. With regard to the statement of the deceased shortly before his death, the learned Public Prosecutor has submitted that the incident took place at about 5/5.30 p.m. whereas the evidence of PW7 is with reference to a later point of time, i.e., 6.10/6.15 p.m. Insofar as the evidence of PW7 is concerned, it is the argument of the learned Public Prosecutor that the contradiction brought about by the evidence of the Investigating Officer would not be serious enough to warrant rejection of the evidence of the said witness. 18. We have carefully considered the submissions advanced by the learned amicus curiae as well as by the learned Public Prosecutor. We have given our anxious consideration to the evidence and materials on record as well as the judgment passed by the learned trial court. 19. Appreciation of evidence in a criminal case cannot be put on a fine mathematical scale and the Endeavour of the court must be to separate the grain from the chaff instead of looking for arithmetical or mathematical precision. 19. Appreciation of evidence in a criminal case cannot be put on a fine mathematical scale and the Endeavour of the court must be to separate the grain from the chaff instead of looking for arithmetical or mathematical precision. In fact, it has been widely acknowledged that some amount of inconsistency in the prosecution version would be natural and may add to the credibility of the said version. Precision in the Statements of different witnesses or with reference to their earlier statements, be it the FIR or the statement recorded under Section 161, Code of Criminal Procedure, may show some amount of tutoring. It is in the aforesaid backdrop that the court must proceed to analyse the situation in the present case. 20. The relationship between the witnesses and the family members of the deceased or the victim cannot be acknowledged to be a good reason to reject the evidence of the family members if otherwise such evidence is unimpeachable and credible. In the present case though P Ws 2, 3 and 6 are the sisters and the brother of the deceased their presence at the place of occurrence is highly natural as the same was at a short distance from their house. The version unfolded by the three eye witnesses is consistent with each other. The presence of PW6, Nagen, at the place of occurrence on hearing the hue and cry though may be inconsistent with the FIR version, yet, the court must hold the said inconsistency to be not relevant for coming to the conclusion that PW6 was present at the place of occurrence as the said fact is common in either of the versions, i.e., as stated in the FIR and as deposed to in court. Therefore, there is nothing in the evidence of the eye witnesses, i.e., P Ws 2, 3 and 6 which could give rise to any doubt in the mind of the court that the said witnesses were present at the place of occurrence. The evidence tendered by the said witnesses would stand further fortified by the medical evidence tendered by PW1 which indicates that PW6 had suffered cut injuries as claimed by the eye witnesses. The evidence tendered by the said witnesses would stand further fortified by the medical evidence tendered by PW1 which indicates that PW6 had suffered cut injuries as claimed by the eye witnesses. The evidence of the eye witnesses, i.e., P Ws 2, 3 and 6, therefore, would sufficiently bring home the charge levelled against the accused/Appellant even if the evidence of PW7 is to be discarded on account of the contradictions in the evidence of the said witness with reference to the statement made by him before the investigating officer. 21. P Ws 2, 3 and 6 had consistently deposed that after the deceased Gajen was brought home he had reported to the family members that it is the accused/Appellant who had inflicted the injuries on him. Shortly thereafter the injured Gajen died. The aforesaid statement of the injured, therefore, can be treated as a dying declaration. In the absence of any contrary material the evidentiary value of such a dying declaration would come into full effect and would give further credence to the testimony of P Ws 2, 3 and 6. The evidence of PW5 that the deceased was not in a position to speak is with reference to a later point of time, i.e., 6.10/6.15 p.m. whereas the incident had occurred at about 5/5.30 p.m. 22. It has already been noticed by us that in the present case the defence had examined the accused/Appellant as DW1 in the case. A perusal of the said evidence indicates the same defence as revealed by the cross-examination of the prosecution witnesses and the statement of the accused recorded under Section 313, Code of Criminal Procedure. According to the defence, the accused/Appellant had a love affair with the sister of the deceased (PW2) and there was a pre-planned move by the deceased Gajen with Badan (PW4) and Nagen (PW6) to cause harm to the accused/Appellant who was waylaid by the aforesaid persons while the accused/Appellant was proceeding on the road in a bicycle. We have noticed that in connection with the aforesaid allegation a complaint case was filed which was tried by the same learned trial Judge in a proceeding registered and numbered as Sessions Case No. 169(N)/2000. We have noticed that in connection with the aforesaid allegation a complaint case was filed which was tried by the same learned trial Judge in a proceeding registered and numbered as Sessions Case No. 169(N)/2000. We have also noticed that by judgment and order dated 9.9.2004 the aforesaid Sessions Case has ended in acquittal of Badan Gayan (PW4) and Nagen Gayan (PW6) who were named as the accused in the aforesaid case. In view of the aforesaid order of acquittal in Sessions Case No. 169(N)/2000 the evidence tendered on behalf of the defence cannot be accepted. 23. For all the aforesaid reasons we are of the view that no infirmity can be found in the conviction recorded by the learned trial court by judgment and order dated 9.9.2004. We, therefore, dismiss the appeal and affirm the conviction and sentence recorded by the learned trial Court in Sessions Case No. 168(N)/2000. 24. We acknowledge' the assistance rendered by Ms. A. Ajitsaria, learned amicus curiae and direct the State of Assam to pay her two days hearing fee at the rate of Rs. 2,500 per diem. Appeal dismissed