JUDGMENT I.A. Ansari, J. 1. This appeal is directed against the judgment and order, dated 29.03.2010, passed, in Sessions Case No. 133/2005, by the learned Sessions Judge, Kokrajhar, convicting the accused-appellant under Section 302 IPC and sentencing him to suffer imprisonment for life and pay fine of rupees five thousand and, in default of payment of fine, suffer rigorous imprisonment for a period of six months. The case of the prosecution, as unfolded at the trial, may, in brief, be described as under: (i) Deceased Subhash Saha, a tailor by profession, worked at the verandah of the shop of Jayanta Sarma (PW4) situated opposite Ranjali Supermarket, Kokrajhar Town. On 01.10.2003, Reena Saha (PW2), wife of Subhash Saha (since deceased), went to the shop of PW4 carrying meals for her husband and, after Subhash Saha had taken his meals, PW2 started back for her house. While, however, she was returning home, she (PW2) happened to meet accused Shekhar Barek, whose house was adjacent to the house of PW2, and the accused told her that he would kill Subhash. PW2 did not pay any heed to what the accused had said and went back home. Soon, thereafter, the accused came to the place, where the shop of PW4 was located, and, having brought a dao from the shop of Aamir Tiwari (PW7), where daos, knives, etc., were sold, gave a blow with great force on the backside of the neck of Subhash almost severing his neck. Subhash fell down and died. (ii) PW2, widow of the said deceased, having come to know from her sister, Gita Saha, about the occurrence, went to the place of occurrence and saw her husband's dead body lying on the ground near his sewing machine. PW2 got an Ejahar written and lodged the same at Kokrajhar Police Station alleging, inter alia, that accused Shekhar Barek had killed her husband by giving blow by means of a dao and that in the conspiracy of assault on, and killing of, her husband, Ananda Haldar, Babul and Rabi Haldar were also involved. Treating the said Ejahar as First Information Report (in short, FIR), Kokrajhar Police Station Case No. 183/2003, under Section 302/34 IPC, was registered against the present appellant and the said three others. (iii) During investigation, police visited the place of occurrence, held inquest over the said dead body and prepared inquest report. Treating the said Ejahar as First Information Report (in short, FIR), Kokrajhar Police Station Case No. 183/2003, under Section 302/34 IPC, was registered against the present appellant and the said three others. (iii) During investigation, police visited the place of occurrence, held inquest over the said dead body and prepared inquest report. Subhash Saha's dead body was also subjected to post mortem examination. The accused was apprehended by police and, on being led by the accused, police recovered a dao (M. Ext. 1) from a drain, where the accused had concealed the same. The said dao was seized by Seizure List (Ext. 1) and, on completion of investigation, a charge-sheet, under Section 302 IPC, was laid against the present accused-appellant. 2. At the trial, when a charge, under Section 302 IPC, was framed against the accused-appellant, he pleaded not guilty thereto. 3. In support of their case, prosecution examined altogether 11 witnesses. The accused-appellant was, then, examined under Section 313 Cr.PC and, in his examination aforementioned, the accused-appellant denied that he had committed the offence, which was alleged to have been committed by him, the case of the defence being that of denial. No evidence was adduced by the defence. 4. Having found accused Shekhar Barek guilty of the offence, which he stood charged with, the learned trial Court convicted him accordingly and passed sentence against him as mentioned above. Aggrieved by his conviction and the sentence, which has been passed against him, the accused, as convicted person, has preferred this appeal. 5. We have heard Ms. R.D. Mozumdar, learned counsel, appearing as amicus curiae, and Mr. K.A. Mazumdar, learned Additional Public Prosecutor, Assam. 6. While considering the present appeal, it may be noted that post mortem examination was, admittedly, performed by PW8, on 31.10.2003, on the dead body of Subhash Barek and his findings were as follows: A sharp and deep wound found in the back of the neck. The wound is about 4 inch deep and about 8 inch length. Clotted blood seen around the neck. Spinal cord is cut at the level of the wound. No other injury seen anywhere else in the body of the deceased. Other organ was found healthy. 7. In the opinion of the doctor (PW8), death was due to shock and hemorrhage as a result of the spinal cord injury, which was ante mortem in nature. Spinal cord is cut at the level of the wound. No other injury seen anywhere else in the body of the deceased. Other organ was found healthy. 7. In the opinion of the doctor (PW8), death was due to shock and hemorrhage as a result of the spinal cord injury, which was ante mortem in nature. In his cross-examination, PW8 has clarified that there was a complete cut injury on the spinal cord. 8. Apart from the fact that the findings of the doctor (PW8) and his opinion with regard to the nature of injuries, which Subhash Saha had sustained, and his opinion, with regard to the cause of death, had not been disputed at the trial, we, too, do not notice anything inherently incorrect or improbable in the findings of the doctor and/or his opinion with regard to the nature of injuries and/or the cause of death. 9. Situated thus, it becomes clear that Subhash Saha's death was not a case of suicide or accident; rather, his was a case of homicide. 10. Bearing in mind what is indicated above, we, first, turn to the evidence of PW2, widow of the deceased. Her evidence is to the effect that her husband used to work as a tailor at the verandah of the shop of Jayant Sarma (PW4) and, on the day of the occurrence, at about 2.30 pm, she carried meals for her husband to his place of work and, after her husband had his meals, when she was returning home, she happened to meet accused Shekhar Barek, whose house was adjacent to her (PW2's) house, and the accused told her that he would kill her husband, Subhash. It is in the evidence of PW2 that she did not pay any heed to what the accused had said and went back home, but after abut half-an hour, she was informed, at her house, by her sister, Gita Saha, that her (PW2's) husband had been killed by Shekhar Barek, whereupon she went to the place of occurrence and saw her husband's dead body lying on the ground near the sewing machine with a cut injury on his neck. It is also in the evidence of PW2 that she came to learn from Jayant Sarma (PW4) that it was accused Shekhar Barek, who had killed her husband by means of a dao. 11. It is also in the evidence of PW2 that she came to learn from Jayant Sarma (PW4) that it was accused Shekhar Barek, who had killed her husband by means of a dao. 11. While considering the evidence of PW2, what is of immense importance to note is that in her cross-examination, PW2 has admitted that her family had dispute with the accused for a long time. Though PW2 has deposed, in her cross-examination, that she met the accused on the western side of the Railway Gate and, at that time, the accused was coming on a bicycle with Shivlal and Shivlal is alive, the defence did not dispute the fact that on her way back home from the shop of PW4, PW2 had met the accused and there the accused had told her that he would kill her husband. This apart, the defence has also not disputed the fact that PW4 had told her that the accused had killed her husband. It was, thereafter, that she (PW2), according to her evidence, lodged the FIR naming the accused as the person, who had hacked her husband to death. 12. Bearing in mind what is indicated above, when we turn to the evidence of PW4, we notice that according to his evidence, the deceased used to do tailoring work sitting at the verandah of his shop for the last six months and, at times, the accused had been seen by him (PW4) coming to, and talking with, Subhash. 13. As regards the occurrence, PW4 has deposed that on the day of the occurrence, at about 4.30 pm, when he was talking with Tarak Nath Saha (PW5), owner of a stationery shop, situated on the southern side of his (PW4's) shop and Subhash Saha was busy in his tailoring work, the accused brought a dao from a nearby shop of daos, knives, etc, and gave a blow with the same on the neck of Subhash Saha from backside, whereby the neck of Subhash Saha got cut and Subhash Saha fell down from the chair, where he was sitting. In his cross-examination, PW4 has clarified that he knew the accused for the last about one month from the date of the occurrence as the accused used to come to Subhash Saha and talk to him and that he (PW4), then, informed the police, on phone, about the occurrence. 14. In his cross-examination, PW4 has clarified that he knew the accused for the last about one month from the date of the occurrence as the accused used to come to Subhash Saha and talk to him and that he (PW4), then, informed the police, on phone, about the occurrence. 14. What is extremely important to note, while considering the evidence of PW4, is that he has clarified, in his cross-examination, that he did not know the name of the accused before the occurrence and that he came to know the name of the accused, when the accused mentioned his name at the Police Station. No wonder, therefore, that the investigating officer (PW11) has deposed, and so has PW4, that while informing the police, PW4 merely mentioned that one man had been killed by another man and that he (PW4), thus, did not mention the name of the accused. Thus, the omission to mention the name of the accused has been convincingly explained by PW4 and we see no reason to disbelieve his evidence. 15. Coupled with the above, PW7 (Aamir Tiwari) is owner of the shop, where he used to sell daos, lock and key, knives, etc., which is located in front of Ranjali Supermarket. According to the evidence of PW7, on 01.10.2003, at about 2.30 pm, he went to his house for lunch asking his neighbour, Sajal Dey (PW6), to have a watch on his shop and, by about 5.30 pm, when he came back to his shop, he heard, from PW4 and others, that Subhash Saha had been hacked by a dao by taking out the same from his (PW7's) shop. It is in the evidence of PW7 that at the time, when he was so reported, he saw the dead body of Subhash Saha lying at the verandah of the cloth shop with cut injury on his neck. 16. In his cross-examination, PW7 has clearly deposed that there were 10 (ten) daos in his shop on the day of the occurrence and, having taken lunch, returned from home to his shop, he found only nine daos in his shop, i.e., one dao was missing. PW7 has also clarified that after the occurrence, he does not have the shop, but he still sells dao, knives, etc., in the market. PW7 has also clarified that after the occurrence, he does not have the shop, but he still sells dao, knives, etc., in the market. Though the defence suggested to PW7 that he had no shop at the time of the occurrence opposite Ranjali Supermarket, the suggestion, so offered, has been denied by PW7. The defence miserably failed to bring any material on record to show that the evidence of PW7 that he had a shop, where, amongst other articles, dao were sold, was untrue or false and/or that when PW7 had left his shop, there were ten daos in his shop and when he returned to his shop on the day of the occurrence, he found that there were only nine daos available in his shop. 17. There is, therefore, no reason for us to doubt the veracity of the evidence of PW7 that he did have, at the time of the occurrence, a shop near the shop of PW4 and that in the shop of PW7, apart from locks and keys, daos, knives, etc, used to be sold. Most importantly, however, the evidence, given by PW7, that there were ten daos in his shop on the day of occurrence, but after coming from home on having lunch, he found only nine daos in his shop, has gone wholly unchallenged by the defence. Situated thus, we find that the evidence of PW4 as regards the place from where the accused-appellant had brought the dao stands proved. 18. Though the learned amicus curiae has pointed out to us that according to the evidence of PW4 and also PW5, it was when PW4 and PW5 were talking to each other that the alleged occurrence had taken place, but PW5 does not claim to have seen the accused assaulting Subhash Saha or Subhash Saha being assaulted by anyone. 19. While considering the evidence of PW5, in the light of the evidence given by PW4, it needs to be noted that PW5 was declared hostile and the prosecution has proved that his evidence, given in the Court, is contradicted by the previous statement, which this witness (PW5) had given to the police, during investigation. 20. Thus, PW7 is not a completely reliable witness and the fact, that his evidence cannot be implicitly relied upon, will not devalue the evidence of PW4 or take away the value, which the evidence of PW4 demands. 20. Thus, PW7 is not a completely reliable witness and the fact, that his evidence cannot be implicitly relied upon, will not devalue the evidence of PW4 or take away the value, which the evidence of PW4 demands. This apart, it is quite possible for PW5 to have not witnessed the assault on Subhash Saha, when he was talking to PW4; but this would not necessarily mean that PW4, too, could not have seen or noticed the assault on Subhash Saha by the accused-appellant. 21. In fact, even PW5 admits that when he was talking with PW4, he heard hulla and saw the head of Subhash Saha lying on the floor and the body in the stool near his sewing machine, though he did not see who had beheaded Subhash Saha. This description of the occurrence, given by PW5, shows that according to him, the head of Subhash Saha was completely severed and lying on the ground, when Subhash Saha's torso was still on the stool, which he used to sit, while working on his sewing machine. This description of the occurrence is not only belied by the evidence given by PW4, but also by the medical evidence on record, which clearly shows that the head had not been severed from neck of Subhash Saha by the blow, which he had sustained on his neck from backside. 22. In short, therefore, if we may reiterate, the evidence of PW5 can, in no way, be taken to have impeached or shaken the credibility of the evidence of PW4. No animosity between PW4 and the accused-appellant was alleged or shown and we see, therefore, no reason for PW4 to have falsely implicated the accused. 23. So far as the seizure of the dao is concerned, we deem it appropriate to keep the evidence, as regards recovery of the dao, excluded from the purview of our consideration inasmuch as no statement of the accused is proved to have been recorded before the dao was recovered except the fact that it is claimed that the dao was recovered from a drain on being shown by the accused. There is nothing in the evidence on record to show that the said dao was the weapon of offence. 24. There is nothing in the evidence on record to show that the said dao was the weapon of offence. 24. In the light of what we have discussed above, the seizure of the dao, as we have already indicated above, does not carry any such probative value, which could have either favour the prosecution or go against them. 25. What crystallizes from the above discussion is that there was ample evidence on record, in the light of what we have discussed above, showing that the accused-appellant was the one, who had put Subhash Saha to death. The finding of guilt, therefore, which was reached by the learned trial Court against the accused-appellant, does not, to our mind, suffer from any infirmity, legal or factual, and we see no reason to interfere with his conviction or the sentence, which has been passed against him. 26. In the result and for the reasons discussed above, this appeal fails and the same shall accordingly stand dismissed. 27. Let the learned amicus curiae be paid a sum of Rs. 5,000/- for her valuable assistance rendered to the Court. Send back the LCR. Appeal dismissed