JUDGMENT I.A. Ansari, J. 1. By judgment and order, dated 17.4.2007, passed, in Sessions Case No. 246/2003, the learned Addl. Sessions Judge (FTC), Nagaon, has convicted the accused-appellant under Section 302 of the IPC and sentenced him to suffer imprisonment for life and pay fine of Rs. 1,000 (Rupees one thousand) only and, in default, undergo rigorous imprisonment for a further period of 6 (six) months. 2. We have heard Mr. P. Kataki, learned Counsel, on behalf of the accused-appellant, and Mr. D. Das, learned Addl. Public Prosecutor, Assam. 3. The case of the prosecution may, in brief, be described, thus: Deceased Haji Halimuddin was the President of Singiri Mosque. On 23.4.2003, at about 5 p.m., after saying his prayer, when Halimuddin was standing in the compound of the said mosque, accused Fakaruddin, who was also present inside the compound of the said mosque, assaulted, by axe, Halimuddin and, as a result thereof, Halimuddin died on the spot. The accused, holding the axe in his hand, ran away from the place of occurrence. Those, who were present inside the compound of the said mosque, witnessed, the occurrence. At the time, when accused had assaulted Halimuddin as mentioned hereinbefore, Halimuddin's son, Nurul Islam (PW1), was at his house, which is at a distance of 200 metres from the said mosque. On hearing hullah, raised from the compound of the mosque, Nurul Islam rushed to the said mosque and found Halimuddin lying dead with injuries on his head. A written Ejahar was lodged, in this regard, at Singri Police Station, by Nurul Islam (PW1). Treating the said Ejahar as FIR, a case was registered against the accused under Section 302, IPC. During the course of investigation, inquest was held on the dead body of Halimuddin and, on completion of the investigation, police laid charge sheet, under Section 302, IPC, against the accused-appellant. 4. On the charges being framed under Section 302, IPC, at the trial, the accused-appellant pleaded not guilty thereto. 5. In support of their case, prosecution examined 6 (six) witnesses. The accused-appellant was, then, examined under Section 313, CrPC. In his examination aforementioned, the accused-appellant denied that he had committed the offence alleged to have been committed by him, the case of the defence being that of total denial. No evidence was adduced by the defence. 5. In support of their case, prosecution examined 6 (six) witnesses. The accused-appellant was, then, examined under Section 313, CrPC. In his examination aforementioned, the accused-appellant denied that he had committed the offence alleged to have been committed by him, the case of the defence being that of total denial. No evidence was adduced by the defence. Having held the accused-appellant guilty of the offence charged with, the learned trial court has convicted him accordingly and passed sentence against him as mentioned above. 6. While considering the present appeal, it needs to be noted that PW2, PW3 and PW4 have been examined as eye-witnesses to the occurrence, PW1 is the one, who has lodged FIR on the basis of what he had been reported, PW5 is the Medical Officer, who had performed post mortem examination on the dead body of Halimuddin, and PW6 is the Investigating Officer. 7. Let me begin with the evidence of PW2 (Zairul Islam). According to his evidence, he is a son of deceased Halimuddin and Imam (i.e., the person, who leads prayer) of the said mosque. PW2 has deposed that after saying prayer, on 23.8.2003, at about 4.45 p.m., they all came out of the mosque, Hajimuddin (since deceased), who was President of the said mosque, was present inside the mosque and he had engaged accused Fakaruddin for some works inside the mosque and the accused had been performing the works with the help of an axe. PW2 has also deposed that at that time, he (PW2), while standing at the gate of the mosque, saw accused Fakaruddin dealing blows with axe on he head of Halimuddin and, as a result thereof, Halimuddin fell down. PW2 has further deposed that on witnessing the occurrence, he (PW2) rushed to the place, where his father had been so assaulted, and the accused left the place with the axe in his hand. It is in the evidence of PW2 that PW4 and PW5, who were also present within the compound of the mosque, witnessed the occurrence, they all raised hullah and, on hearing the hullah raised by them, nearby people, including PW1, brother of PW2, came and PW2 reported the incident to PW1. From the place of occurrence, as PW2 deposes, the dead body was carried to his house and PW1 lodged an Ejahar at the police station and, thereafter, police came to their house. 8. From the place of occurrence, as PW2 deposes, the dead body was carried to his house and PW1 lodged an Ejahar at the police station and, thereafter, police came to their house. 8. In his cross-examination, PW2 has clarified that prayer was attended by accused Fakaruddin too. PW2 has also clarified, in his cross-examination, that after the prayer, while doing some works with bamboo, his father asked accused Fakaruddin to co-operate with him (the said deceased) and, for this purpose, Halimuddin brought one axe from the house of one Mustaffa and handed over the same to accused Fakaruddin to clean the bamboo knots. 9. Close on the heels of the evidence of PW2 is the evidence of PW3. PW3 has deposed that on the day of the occurrence, he was in the compound of the mosque and the said deceased, his son (PW2), who was the Imam of the mosque, and some other persons, namely, Zairul Islam, Jakir, Safiqur Rahman were also present within the compound of the mosque. PW3 has also deposed that it was necessary to fix a bamboo post at the corner of the shade of the mosque, one bamboo was lying in the compound of the mosque, the accused, after attending to the prayer, had asked Halimuddin that he would clean the bamboo by an axe and he (i.e., the accused) was accordingly allowed. While Halimuddin was so working, the accused, suddenly, dealt blows with axe on Halimuddin's head. PW2 has further deposed that on seeing the occurrence, he raised hulla and the accused ran away from the place of occurrence taking the axe in his hand. It is also in the evidence of PW3 that there was bleeding from the head of Halimuddin and he died on the spot. 10. In his cross-examination, PW3 has clarified that he cannot say the names of the persons, who had attended the prayer as he was nervous and he was not in a normal position on seeing the dead body. PW3 has, however, clarified that at the time of the incident, he was at a distance of about 25 feet and had witnessed the occurrence. 11. Broadly in tune with the evidence of PW2 and PW3 is the evidence of PW5. PW3 has, however, clarified that at the time of the incident, he was at a distance of about 25 feet and had witnessed the occurrence. 11. Broadly in tune with the evidence of PW2 and PW3 is the evidence of PW5. His evidence is to the effect that on completion of prayer, Halimuddin had asked for some works to be done for the mosque and, at that time, he (PW5) along with Naizul Islam and the accused was present there. PW5 has also deposed that he too was cutting bamboo for personal works and that accused Fakaruddin asked Halimuddin if he could participate in the cleaning of bamboo and accordingly, he (i.e., the accused) was allowed. PW5 has further deposed that, suddenly, accused Fakaruddin dealt blows with axe on the head of Halimuddin whereupon hulla was raised by him (PW5) and the accused ran away from the place of occurrence taking the axe in his hand. 12. Except putting some suggestions to PW5, nothing was elicited, during the course of his cross-examination, by the defence to show that he was not worthy of trust and ought not be relied upon. Thus, the evidence of PW5 has remained unshaken and cannot but be believed unless his evidence, for any other reason, is found to be unbelievable or unsafe to place reliance upon. 13. As far as PW3 is concerned, whose evidence we have already discussed, his evidence too, in the cross-examination, has remained unshaken. We, therefore, see no reason to disbelieve his evidence either. However, so far as PW2 is concerned, defence has elicited from him, during cross-examination, that he had noticed two blows being dealt on his father's head. What is also equally important to note, in the cross-examination of PW2, is that he has deposed that he presumes that there might have been three blows. Thus, the evidence, given by PW2, as to how many blows were dealt with by the accused is really based on presumption. His evidence, therefore, given in the cross-examination, as to how many blows his father was given or had sustained, cannot be confidently relied upon. Thus, the evidence, given by PW2, as to how many blows were dealt with by the accused is really based on presumption. His evidence, therefore, given in the cross-examination, as to how many blows his father was given or had sustained, cannot be confidently relied upon. What logically follows is that the failure of PW2 to confidently say as to how many blows the accused had dealt on his father with axe is not, in the facts and attending circumstances of the case, be treated to have made his evidence unbelievable or unsafe to rely upon. 14. In the light of what have been discussed above, when we turn to the evidence of PW4 (i.e., the doctor), who had performed post mortem examination on the dead body of deceased Halimuddin, on 24.04.2003, we notice that the findings of the doctor are as follows: Rigor Mortis present. One lacerated injury on the side of the skull on temporal region and 2" x 1/2" x 1/2" in size. The injury caused fracture of the left temporal bone of the skull. Spinal cord and brain membrane are congested. Blood liquid and clot present inside the brain membrane. Right side conduct blood and left side empty. Stomach empty. Intestine and its contents gases matters. 15. It is in the evidence of PW4 that the injuries were ante mortem in nature and the death was caused due to shock and hemorrhage as a result of the injuries sustained, Ext.2 being the post mortem report. The evidence of the doctor (PW4) clearly shows that the said deceased had suffered one lacerated injury on the left temporal region and that the said injury had caused fracture of the left temporal bone of the skull and that it was, as a result of the injuries, as aforementioned, sustained by the said deceased, that he died. Though no opinion has been elicited by the prosecution from the doctor as to whether the injuries were sufficient to cause death of a person in the ordinary course of nature, the fact remains that the nature of injuries, as described hereinbefore, makes it clear that such an injury was sufficient to cause instantaneous death. 16. Though no opinion has been elicited by the prosecution from the doctor as to whether the injuries were sufficient to cause death of a person in the ordinary course of nature, the fact remains that the nature of injuries, as described hereinbefore, makes it clear that such an injury was sufficient to cause instantaneous death. 16. What is, now, necessary to note is that while, according to the evidence of PW2, he had noticed two blows having been given on his father by the accused and that he presumes that there might have been even three blows, the doctor's evidence is that he had found only one injury. We have already indicated above that the evidence, given by PW2 during cross-examination, as regards the number of blows dealt with by the accused and sustained by his father, is indefinite and, hence, possibility that the said deceased had sustained only one injury cannot be boldly ruled out. This apart, the finding of the doctor cannot be taken to have completely destroyed the evidence of PW2 inasmuch as the evidence of PW2, as already indicated hereinbefore, is vague and indefinite as regards the number of blows given to, and sustained by, the said deceased. This weakness, in the evidence of PW2, cannot be held to have made PW2 an unreliable witness. It is, therefore, quite possible that in his tension-ridden moment, PW2 had not correctly noticed as to how may blows had been dealt with by the accused and how many blows dealt with by the accused had actually fallen on the said deceased. 17. Coupled with the above, one cannot ignore the fact that PW3 and PW5 have been examined as eye-witnesses to the occurrence and they have, we have already discussed above, withstood well the test of cross-examination by the defence. We, therefore, see no reason to disbelieve the evidence of PW3 and PW5 and if their evidence is believed, which we see no reason to disbelieve, their evidence clearly proves that it was the accused, who had assaulted the said deceased by an axe and as a result of the blows given by the accused on the head of the said deceased that the said deceased sustained fracture of the left temporal bone of his skull and died instantaneously. 18. 18. Turning, now, to the evidence of the informant, PW1, we may mention, as already pointed out above, that he had not witnessed the occurrence. His evidence is to the effect that his house is at a distance of about 200 meters from the said mosque and, on hearing hulla, he went to the compound of the mosque and found his father, Halimuddin, lying dead with injuries on his head and that his younger brother, Zairul Islam, Nazur Islam, Safiquddin, Sirajul Islam, Safiqur Rahman were also present there. On making enquiry from them, he was told that accused Fakaruddin had dealt blows with axe on the head of Halimuddin and, as a result thereof, Halimuddin had died. It is in the evidence of PW1 that they took the dead body to their house and keeping the dead body at their house, he went to Juria police station and lodged an FIR, which is Ext.1. In his evidence, PW1 has also deposed that there used to be quarrel amongst the members of the families of the accused and his brothers and, some times, the said deceased, being President of the mosque, visited the houses of the accused and of his brothers to settle their dispute on the request of the accused and his brother. 19. Though PW1 was put to cross-examination, no major omission could be pointed out in his evidence. Notwithstanding the cross-examination to which PW1 was subjected to, nothing was elicited from his evidence, which could show that the evidence of PW1 and/or the evidence given by PW3 and PW5, describing the occurrence, is untrue or false. It is, thus, clear that the evidence, given by PW1, lends support to, and strengthen, the evidence, given by the persons, who have been examined, as eye-witnesses to the occurrence. 20. As far as the investigating officer (PW6) is concerned, his evidence is that on 23.4.2003, on receiving an FIR from PW1, a case was registered by the Officer-in-Charge of the said police station and, upon being entrusted with the investigation of the case, he went to the place of occurrence and also to the house of the deceased and that inquest was held on the said dead body by an Executive Magistrate on 23.4.2003 itself. It is in the evidence of the investigating officer that he attempted to apprehend the accused on that very day, but he could not apprehend him as the accused was not available and that the accused, later on, surrendered at Juria Police Station and was arrested. Even the cross-examination of the investigating officer did not reveal any such thing, which could be taken to have discredited the prosecution's case or make this Court disbelieve the evidence given by the prosecution witnesses. 21. What emerges from the above discussion is that the prosecution has adduced adequate, cogent and reliable evidence, which proved, as correctly noted by the learned trial court, that the accused had given, without any provocation, blows by an axe on Halimuddin's head and the blows given by the accused caused fracture of the left temporal bone of Halimuddin's skull causing his instantaneous death. The charge framed against the accused was, thus, proved beyond reasonable doubt. We, therefore, uphold the finding of guilt, reached against the accused-appellant, by the learned trial court. 22. Because of what have been discussed and pointed out above, we find no merit in this appeal. The appeal is, therefore, disallowed and shall accordingly stand dismissed. 23. Send back the LCRs. Appeal dismissed