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2014 DIGILAW 1026 (GAU)

Bircha Kurmi v. State of Assam

2014-12-01

C.R.SARMA, M.R.PATHAK

body2014
JUDGMENT M.R. Pathak, J. 1. This criminal appeal has been filed by the accused appellant Sri Bricha Kurmi, from jail, against the Judgment of conviction and sentence dated 15.03.2014 passed by learned Additional Sessions Judge No. 2 (FTC), Tinsukia in Sessions Case No. 178 (M) of 2008, convicting the accused appellant under Section 302 of the Indian Penal Code and sentencing him to suffer imprisonment for life and to pay a fine of Rs. 5,000/-, in default to suffer rigorous imprisonment for another 3 (three) months. Heard Mr. Sanjoy Kumar Medhi, learned amicus curiae for the appellant and Mr. Dhanesh Das, learned Additional Public Prosecutor, Assam. 2. It is seen from the records that on 02.08.2008, around 09:00 AM, one Shri Anjan Saikia (P.W. 1) lodged ah FIR before the Officer-in-Charge of Digboi Police Station under Tinsukia District, Assam stating that their neighbour Bircha Kurmi, a resident of Borbil No. 2 murdered their second brother Troilakya Saikia, son of Shri Debeswar Saikia by hitting him in his head with an axe. 3. On the basis of said FIR (Exhibit-1), police registered Digboi Police Station Case No. 107/2008, corresponding to GR Case No. 329/2008 under Section 302 of the Indian Penal Code and thereafter, the concerned Investigating Officer initiated the investigation of the case. During such investigation, the police visited the place of occurrence and prepared its Sketch Map (Exhibit-9), conducted the inquest on the dead body of the deceased Troilakya Saikia and prepared the Inquest Report (Exhibit-2) in presence of witnesses and sent the dead body of said Troilakya Saikia for post mortem examination. On the date of the incident itself, i.e. 02.08.2008 around 10:45 A.M. the concerned officer at Digboi Chariali near Forest Office apprehended accused Bircha Kurmi and from his possession seized an axe, which is about 2 1/2 inches width & 6 inches in length, fitted with 2 1/2 feet length handle made of beetle nut tree (Material Exhibit-1) and accordingly prepared the Seizure List (Exhibit-4) in presence of witnesses and arrested the said accused. The concerned Investigation Officer, during investigation of the case recorded the statements of the witnesses under Section 161 Cr. P.C., sent Smti. Anjana Saikia (P.W. 2), an eye witness of the incident, elder sister of the deceased to the Court of Sub-Divisional Judicial Magistrate, Margherita to record her Section 164 Cr. The concerned Investigation Officer, during investigation of the case recorded the statements of the witnesses under Section 161 Cr. P.C., sent Smti. Anjana Saikia (P.W. 2), an eye witness of the incident, elder sister of the deceased to the Court of Sub-Divisional Judicial Magistrate, Margherita to record her Section 164 Cr. P.C. statement, which was recorded by the learned Magistrate on 27.08.2008 (Exhibit-3), the Post Mortem Report of the deceased Troilakya Saikia dated 02.08.2009 (Exhibit-5) and after completion of the investigation, on 27.08.2008 submitted the charge sheet (Exhibit- 10) in the case against the accused appellant under Section 302 IPC along with the Seizure Memo and the Post Mortem Report. 4. The offence under Section 302 IPC being exclusively triable by the Court of Sessions, learned SDJM, Margherita on 22.09.2008 committed the said GR Case No. 329/2008 to the Court of learned Session Judge, Tinsukia which was registered and numbered as Sessions Case No. 178(M)/2008 and the learned Session Judge, Tinsukia transferred the same to the Court of learned Additional Sessions Judge No. 2 (FTC), Tinsukia for disposal of the same. 5. The learned Additional Sessions Judge No. 02 (FTC), Tinsukia finding sufficient materials against the accused appellant by his Order dated 20.10.2008 302 IPC framed charge under Section 302 IPC against the accused/appellant, which was read over and explained to him, to which the accused pleaded not guilty and claimed to be tried. As the accused informed the Court that he has no lawyer to defend him, learned Additional Sessions Judge No. 2 (FTC), Tinsukia by his order dated 20.10.2008 appointed one Sri Biswajit Prasad, an Advocate of the Tinsukia Bar as State Defence lawyer to defend the said accused. 6. In the trial, 12 (twelve) witnesses were examined on behalf of the prosecution and none on behalf of the defence. Further, learned Trial Court after completion of recording of evidence of prosecution witnesses, Section 313 Cr. P.C. statement of the accused was recorded on 08.0.2009, where he denied all the accusations, and also refused to adduce any evidence. After conclusion of the trial, learned Additional Sessions Judge No. 2 (FTC), Tinsukia by his Judgment dated 05.06.2009 convicted the accused appellant under Section 302 IPC and sentenced him imprisonment for-life and to pay a fine of Rs. P.C. statement of the accused was recorded on 08.0.2009, where he denied all the accusations, and also refused to adduce any evidence. After conclusion of the trial, learned Additional Sessions Judge No. 2 (FTC), Tinsukia by his Judgment dated 05.06.2009 convicted the accused appellant under Section 302 IPC and sentenced him imprisonment for-life and to pay a fine of Rs. 5,000/-, in default to suffer rigorous imprisonment for another 3 (three) months under Section 302 IPC setting off the period of detention in jail during investigation and trial. 7. Being aggrieved, the accused preferred an appeal from jail before this Court being Criminal Appeal (J) No. 57 of 2009 and this Court after hearing the parties by its Judgment & Order dated 02.08.2013 set aside the afore said Judgment and Order convicting the accused appellant and the sentence dated 05.06.2009 passed against him, remanded the matter to the learned Trial Court for its disposal in accordance with law, by bringing on record the contents of the General Diary Entry by calling Md. Abdul Hannan, the then O.C. of Digboi Police Station, and/or by calling, if necessary, the present Officer-in-Charge of Digboi Police Station and Apurba Saikia who according to the evidence of Village Headman, Krishna Mahato (P.W. 11) informed him about the incident and to come out to its own independent finding after having brought on record the omitted materials and in the light additional evidence which may come on record and after allowing the defence to adduce, if they so seek, such evidence in support of their defence as permissible in law. The Court further directed that during the pendency of the trial, the accused appellant shall be kept in police custody and shall not be allowed to go on bail. 8. Learned Additional Sessions Judge (FTC) No. 2, Tinsukia after recording evidence of Court witnesses Khurshid Ali, Officer-in-Charge of Digboi Police Station on 22.11.2013 and Apurba Saikia on 21.02.2014 respectively, allowing the defence side to cross examine those two Court witnesses and further recording Section 313 Cr. P.C. statement of the accused and oh going through the copy of the G.D. Entry No. 42 dated 02.08.2008 of the Digboi PS (Exhibit-11) and other evidences of the case vide order dated 15.03.2014, passed the impugned judgment of conviction and sentence against the accused appellant herein. Hence, this Criminal Appeal. 9. Mr. P.C. statement of the accused and oh going through the copy of the G.D. Entry No. 42 dated 02.08.2008 of the Digboi PS (Exhibit-11) and other evidences of the case vide order dated 15.03.2014, passed the impugned judgment of conviction and sentence against the accused appellant herein. Hence, this Criminal Appeal. 9. Mr. Medhi, learned Amicus Curie, referring to the deposition of the prosecution witnesses, has submitted that it is apparent there from that none of the prosecution witnesses has personally saw the occurrence and the case of the prosecution was based on the circumstantial evidence against the appellant Mr. Medhi further submitted that though the prosecution has tried to prove that P.W. 2 is the eye witness to the incident, but it is clear from her evidence and evidence of other witnesses of the case that she was fishing at the time of the incident. As such the evidence adduced by the prosecution in support of such plea is not believable and trustworthy. The learned Amicus Curie, therefore, submits that the judgment of conviction recorded by the learned Additional Sessions Judge No. 2 (FTC), Tinsukia needs interference and hence it may be set aside. 10. The learned Addl. Public Prosecutor Mr. Das, on the other hand, referring to the deposition of the prosecution witnesses, more particularly of PWs. 2 and 4, has submitted that these witnesses have stated that the accused appellant killed the deceased Troilakya by axe hitting him on his head, which is also corroborated by the autopsy doctor P.W. 10. It has also been submitted that the defence did not challenge the statements of those witnesses during cross-examination and even did not put any suggestion and, hence, the prosecution could prove that the accused appellant killed the deceased. The learned Addl. Public Prosecutor further submits that as the defence did not lead any evidence and could not demolish the evidence of prosecution witnesses by cross examining them the learned Additional Sessions Judge No. 2 (FTC), Tinsukia has rightly convicted the accused appellant under Section 302 IPC. 11. We have considered the submissions advanced by the learned counsels appearing for the parties and also perused the evidence adduced by the parties in the above noted Sessions case, apart from the Judgment of conviction recorded by the learned trial Court. 11. We have considered the submissions advanced by the learned counsels appearing for the parties and also perused the evidence adduced by the parties in the above noted Sessions case, apart from the Judgment of conviction recorded by the learned trial Court. In order to appreciate the arguments advanced by the learned counsels appearing for both the parties and to examine the correctness of the impugned Judgment we consider it would be appropriate to briefly scrutinise the evidence on record, 12. The prosecution by examining the autopsy doctor, P.W. 10, Dr. Amal Prasad, who conducted the post mortem on the deceased Troilakya Saikia and gave the post mortem report vide Ext. 5 could prove the injuries found on the said deceased person and also the cause of his death. The said autopsy doctor in his evidence deposed and narrated that the following injuries were found on the deceased person: "(i) Deep sharp cut injury over right upper part of neck 6" in length and deep cutting muscles, vessels and part of third cervical vertebrae. (ii) Deep cut above the right ear over temporal region 4" in length cutting bone, meninges and brain matter. (iii) Deep sharp cut injury over occipital region fracturing bone and lacerating brain matters with sub-dural hematoma." He also stated that the wounds were sharp, lacerated and homicidal in nature and all other organs were found healthy. The said autopsy doctor opined that the death of the deceased was caused by 'coma' as a result of head & neck injuries sustained by him and death was approximately within 12 to 24 hours. He further opined that all the three above noted injuries were sufficient to cause the death of the deceased in the ordinary course of nature. In his cross examination, he stated that the injuries were caused by multiple blows and the weapon that might had been used must be minimum of 6" in length and except the injuries on the head and neck on the deceased, there were no other injuries on him and he examined the dead body around 3.20 PM on 02.08.2008. 13. In his cross examination, he stated that the injuries were caused by multiple blows and the weapon that might had been used must be minimum of 6" in length and except the injuries on the head and neck on the deceased, there were no other injuries on him and he examined the dead body around 3.20 PM on 02.08.2008. 13. From the above it is seen that prosecution could prove that the death of the deceased Troilakya Saikia was homicidal in nature due to deep sharp cut injuries that were caused by multiple blows on his head & neck and the weapon that might have been used was minimum of 6" in length. 14. We are therefore required to see whether prosecution could bring home the charge of Section 302 IPC against the accused appellant. 15. P.W. 1, Anjan Saikia, a petition writer in the Tinsukia Bar, the informant of the case and the younger brother of the deceased in his evidence deposed that there were three shops in front of his house of which one was a grocery, another one was the cloth materials and the other one was hardware. It was around 8 in the morning, while he was inside in his house getting ready to leave for his work, he heard screaming of his elder sister Anjana saying killed killed (marile marile) from the backside of their hardware shop and immediately he and his elder brother Ranjan came out. As they went there, accused Bircha Kurmi chased them with an axe in his hand saying that he would kill them and being scared they ran away and he went inside the house of a member of the village Panchayat who resides in their house and his elder brother went inside his house by closing the gate. He also stated that Apurba Saikia first informed the Village Headman over phone about the incident and he was not aware whom he informed thereafter and about 45 minutes thereafter police from Digboi Police Station came there and he along with Apurba came to the place of occurrence and saw his elder brother Troilakya lying dead on the backside of their hardware shop and also saw blood on his head & neck. When police came there he identified the dead body and he came to know from his elder sister Anjana that accused Bircha Kurmi killed him by an axe. When police came there he identified the dead body and he came to know from his elder sister Anjana that accused Bircha Kurmi killed him by an axe. He went along with the police to Digboi Police Station and lodged the FIR (Exhibit-1). The inquest of the dead body was made by a police named Deka and the P.W. 1 was a signatory to the inquest report (Exhibit-2) and Police recorded his statement. In cross-examination he stated that between their house and the hardware shop there exists a 24 feet wide road, police came to the place of occurrence after about 45 minutes of the incident. Their shop opened around 7 and 7.30 of the morning and he did not see the occurrence in his own. 16. P.W. 2, Smti. Anjana Saikia, elder sister of the deceased, in her evidence deposed that the accused appellant used to stay in front of their house at No. 2 Barbil. She stated that her brother was murdered, who stayed in the hardware shop. On 02.08.2008, at around 8 AM, she went to call him home and when she reached near the hardware shop she saw accused Bircha came by backside of the shop with an axe in his hand and hit her brother Troilakya on his head. When she resisted him and caught his hand she got hurt on her left hand and then she screamed. As the accused chased to kill her, she ran to her house and hearing her scream, her elder brother Ranjan and younger brother Anjan came out of the house and she fell down and became unconscious. Later she came to know that the accused chased both of her said brothers to kill them and also came to know that Troilakya died later and her brother Anjan lodged the FIR in the Police Station. She also stated that her statement under Section 164 Cr. P.C. was also recorded by the Magistrate (Exhibit-3). In cross examination she stated that neighbours were fishing in a drain in front of her house and prior to the incident she was looking at it. They had the hardware shop at about 20/24 feet away from their house which is on the land of the accused and they were jointly doing business with the wife of the accused on partnership basis for the last about 3 years. They had the hardware shop at about 20/24 feet away from their house which is on the land of the accused and they were jointly doing business with the wife of the accused on partnership basis for the last about 3 years. She raised hue and cry after the incident and as the accused chased her she went out through the door of the shop. She also stated that when she went there (place of occurrence), the accused Bircha was near the hardware shop and from the sound made by her brother she was sure that he was at the hardware shop itself. When she called him he replied and when he was coming out, the accused hit her brother Troilakya with the axe. She denied the suggestion that the accused Bircha Kurmi did not kill her brother. 17. P.W. 3, Ranjan Saikia, elder brother of the deceased and an employee of IOC (AOD), in his evidence deposed that on the date of the incident around 8AM while he was at his residence, he heard a cry of his sister Anjana and on hearing her cry, he went out of his house and saw her in front of their shop house and on being asked pointing her finger towards the place of occurrence, she replied that accused Bircha Kurmi assaulted her younger brother Mantu Saikia @ Troilakya Saikia and then he rushed to the place of occurrence, found Mantu lying on the ground with injury in a pool of blood. On his arrival in the place of occurrence accused attacked him with an axe. His mother and younger brother also followed him to the place of occurrence. When accused chased him he fled away from the spot to his house and when police came later, he came out of his house. In his cross-examination he stated that the place of occurrence cannot be seen directly from his residence as it was intervened by their shop house. 18. When accused chased him he fled away from the spot to his house and when police came later, he came out of his house. In his cross-examination he stated that the place of occurrence cannot be seen directly from his residence as it was intervened by their shop house. 18. P.W. 4, Keerty Chandra Bora, who is a businessman by profession in his evidence deposed that the occurrence took place in the morning hour while he was inside his house and on hearing hue and cry, he came out of his house and rushed to the place of occurrence, which is just about 3/4 feet away from his residential boundary and there he found Mantu Saikia lying on the ground and saw accused Bircha Kurmi with an axe in his hand 3/4 feet away from the body of Mantu Saikia. He also stated that when family members of Mantu Saikia came out, accused chased them. He also stated that later police came to the place of occurrence, conducted the inquest of the dead body in his presence and prepared the inquest report (Exhibit-2), to which he was a signatory. In cross-examination, he stated he knew the accused person for last 7/8 years, whose behaviours to others including him was good and his house was just opposite to the house of the deceased family intervened by road and the shop house of Saikia family which was at a distance of 10/15 feet away on the left side of his residence. He also stated that between the Saikia's hardware shop and his residence there was a boundary wall of 2 1/2 feet with fencing and on his arrival to the place of occurrence, he saw the dead body of Mantu Saikia and the accused persons. 19. P.W. 5, Smti. Sabitri Kurmi, wife of the accused Bircha Kurmi in her evidence deposed that the occurrence took place on 02.08.2008, around 8AM, while she was fishing in the road side drain and on hearing hue & cry, she went to the place of occurrence, saw her husband murmuring something and going out to the road with an axe and also found the dead body of Troilakya Saikia @ Mantu Saikia on the back side of the shop house with head injury just above the ear on his body. In her cross-examination, she stated that the hardware shop was ran by herself, Anjana, sister of the deceased Mantu and deceased Mantu, three of them together, which generally opens around 7.30 in the morning and there was no quarrel between the accused and the deceased prior to the said incident. She also stated that she did not take any step to release her husband on bail nor did she ever met him in jail or in Court after the incident. 20. P.W. 6, Krishna Kurmi, son of the accused and a student of BA 1st year, in his evidence deposed that the accused is his father; occurrence took place in the month of August, 2008 around 8.30 in the morning and when he heard the cries of Smti Anjana (P.W. 2)- killed killed (marile marile), within 2/3 minutes thereafter he came to the place of occurrence, found his father, the accused standing with an axe in his hand and saw the accused proceeding towards the road side. He also stated that he saw the dead body of the deceased Troilakya Saikia @ Mantu Saikia lying on the back side of his shop house and saw blood oozing out from his head. He further stated that his mother (P.W. 5) came to the place of occurrence thereafter. In cross-examination, he stated that 2/3 minutes after hearing the cry of Anjana (P.W. 2), he came to the place of occurrence and saw her at the back side of the shop house and about a minute later of his arrival, his mother also came to the place of occurrence. He stated that he saw blood in the entire head (of the deceased) but did not notice the injury. He also stated that he did not see who were fishing in the drain, but stated that his mother and Anjana Saikia were fishing at that time. 21. He stated that he saw blood in the entire head (of the deceased) but did not notice the injury. He also stated that he did not see who were fishing in the drain, but stated that his mother and Anjana Saikia were fishing at that time. 21. P.W. 7, Fazal Hussain, a retired of employee of IOC (AOD), in his evidence deposed that he had a PCO just in front of the Forest Range Office at Digboi Chariali and one day around 8.30 am while he was just opening his said PCO, he saw O.C. Digboi apprehending accused Munda, seized an axe form his possession vide seizure list Exhibit-4 to which he is the signatory and he identified both the accused who was present in the doc of the Court and the said seized axe (Material Exhibit-1). In cross examination he stated that when he signed the Exhibit-4, it was written and there were other police personnel with the O.C. at that time and prior to same he did not see the accused person and he was not acquainted with him. He also stated that Sanjoy Sarma (P.W. 8) had a shop near his PCO. He denied the suggestion that police did not seized the Material Exhibit-1 from the possession of the accused and stated that it would take about half an hour from No. 2 Borbil to Digboir Forest Range Office by foot/walk. 22. P.W. 8, Sanjoy Sarma, a business by profession, in his evidence deposed that he had a cloth store 'Rupali Silk House' at Digboi Chariali and on the day of the incident around 8-10 am he opened his shop and at that time O.C. Digboi appeared there and arrested one person having an axe in his hand and O.C. seized the axe in their presence vide Exhibit-4 to which he is a signatory and that Material Exhibit-1 is the seized axe. He identified the said person present in the court on that day and also identified the said Material Exhibit-1. Said witness also stated that PW 7 had a PCO at that place. In cross examination he denied the suggestion that he did not see any axe in the hand of the accused and that the police did not seize the axe from the accused. He stated that it would take about half an hour on foot to arrive at Digboi from No. 2 Borbil. 23. In cross examination he denied the suggestion that he did not see any axe in the hand of the accused and that the police did not seize the axe from the accused. He stated that it would take about half an hour on foot to arrive at Digboi from No. 2 Borbil. 23. P.W. 9, Puran Rajbongshi, a carpenter by profession, in his evidence deposed that on seeing the police party at the place occurrence he came there, found the Village Headman of their village present at the place of occurrence, saw the dead body of Mantu Bora, lying with pull of blood and did not notice the injuries on the dead body.. He stated that he knew him as Bora, but he is not sure whether he is Bora or not and that villagers told him that the accused Bircha Kurmi killed the deceased. In cross examination he said that since last 10 to 12 years he knew the deceased who had a hardware shop which was in partnership with the accused person. He cannot say at what time he came to the place of occurrence and that deceased was not a married person. But he stated that deceased had brothers but did not know their names. 24. P.W. 11 Krishna Mahato, Village Headman, in his evidence deposed that the occurrence took place on in the morning of 02.08.2008. He stated that he was informed by Ward Member Apurba Saikia over telephone that accused Bircha Kurmi killed one person namely, Troilakya Saikia and that he is moving in the road with an axe in his hand. On receiving the said information he immediately informed the O.C. of the Digboi Police Station over phone about the incident Thereafter, O.C., Digboi P.S. came to his residence and he accompanied police to the place of occurrence and saw the dead body of lying on the back side of the hardware shop in a pull of blood and also saw head and neck injury on the person of the deceased, police conducted the inquest on the deceased person, prepared the inquest report to which he was the signatory. He also stated that thereafter police went in search of the accused person and he accompanied them. He also stated that thereafter police went in search of the accused person and he accompanied them. He said police caught the accused at Digboi Chariali near Forest Office, seized an axe (Material Exhibit-1) from his hand and prepared the seizure memo to which he is a signatory. In his cross examination he stated that he received the call from Apurba Saikia in his mobile phone around 8 to 9 am on the date of occurrence and then telephoned Abdul Hannan O.C. of Digboi P.S. in his mobile phone and within 10 minutes thereafter police came. He denied the suggestion that Material Exhibit-1 was not seized from the possession of accused person, Bircha. 25. P.W. 12 Nani Gopal Deka, Sub Inspector of police, in his evidence deposed that on 02.08.2008, he was attached with to Digboi Police Station as second officer and on that day O.C. Digboi on receipt of the FIR from the informant Anjan Saikia registered the case under Section 302 of IPC and endorsed the same to him for its investigation. On being instructed, he visited the place of occurrence, prepared the Sketch M (Exhibit-9), found the dead body lying in the place of occurrence, conducted the inquest over the said dead body in presence of the witnesses and prepared the inquest report (Exhibit-2) and recorded the statements of the witnesses. He also stated that the accused Bricha Kurmi was apprehended from Digboi Chariali near Forest Range Office while he was moving towards to the Police Station with an Axe in his hand. Recovered the axe, Material Exhibit-1 from the possession of the said accused vide seizure list Exhibit-4 in presence the witnesses, forwarded the dead body of Troilakya Saikia for post mortem examination and after completion of the investigation, submitted the charge sheet in the case against the accused Bircha Kurmi under Section 302 of IPC for trial. In cross examination he denied the suggestion that he did not recover the Material Exhibit-1, the axe from the accused. He stated that witness Krishna Mahato was present at the place of occurrence during the inquest. 26. In cross examination he denied the suggestion that he did not recover the Material Exhibit-1, the axe from the accused. He stated that witness Krishna Mahato was present at the place of occurrence during the inquest. 26. The Court witness, namely, Khursid Ali, Officer-in-Charge of Digboi Police Station in his evidence deposed that on 02.08.2008, after receipt of the FIR, a case was registered vide Digboi P.S. Case 107/2008 under Section 302 IPC and there was no mention about any entry made prior to the filing of the FIR in respect of the incident. In his cross-examination he denied that no person named Apurba Saikia informed the police about the incident and as such no GD Entry is available in the GD Entry Register in Digboi Police Station. 27. The other Court witness, Apurba Saikia in his evidence deposed that on the day of the incident during morning hour he heard hulla that Bircha Kurmi had killed Troilakya and he was going towards the police station with an axe in his hand, so he rang up Krishna Mahato (P.W. 11) and informed him about the incident and then he went to see the dead body. In cross-examination he stated that he did not remember who told him that Bircha had killed Troilakya and he did not remember the date of the incident. He denied the suggestion that there was no hulla and that he falsely stated that he informed the Village Headman. 28. From above, it is seen that as per the Post Mortem Report, Exhibit-5 and proved by the Autopsy Doctor, P.W. 10, who conducted the post mortem of the dead body of the deceased Troilakya Saikia @ Mantu Saikia that his death was caused by 'coma' as a result of deep sharp cut injuries over right upper part of his neck, right ear over temporal region and also over occipital region which were homicidal in nature and the injuries were caused by multiple blows and the weapon that was used in the commission of such offence was minimum of 6" in length. 29. P.W. 1, informant and younger brother of the deceased; P.W. 2, elder sister of the deceased and P.W. 3, elder brother of the deceased in their evidence stated that the accused chased them with an axe in his hand. 29. P.W. 1, informant and younger brother of the deceased; P.W. 2, elder sister of the deceased and P.W. 3, elder brother of the deceased in their evidence stated that the accused chased them with an axe in his hand. These statement of the prosecution witnesses No. 1 to 3 have been corroborated by the P.W. 4, an independent witness and immediate neighbour of the accused, who in his evidence stated that on hearing hue & cry, when he came out from his house and rushed to the place of occurrence, he saw the deceased lying on the ground and saw the accused with an axe in his hand about 3/4 feet away from the deceased and that the accused chased the family members of the deceased when they came to the place of occurrence. Similarly, PW-6, son of the accused stated that on hearing hue and cry he came out from his house; saw the accused, his father in the place of occurrence with an axe in his hand. Moreover, both the P.W. 6 and P.W. 5, wife of the accused saw the accused going out towards the road with the axe in his hand. 30. Further, Independent witnesses P.W. 7, P.W. 8 and P.W. 11 in their evidence clearly stated that when police apprehended the accused at Digboi Chariali near Forest Range, he was found with an axe (Material Exhibit-1) in his hand which was seized vie Seizure Memo (Exhibit-4) These witnesses also identified the accused and the Material Exhibit-1 in the Court during trial. 31. Moreover, the P.W. 12, the Investigating Officer, in his evidence stated that he saw the accused moving towards the Police Station with an axe in his hand and apprehended him from Digboi Chariali near Forest Range Office and recovered the axe (Material Exhibit- 1) from the said accused person. The accused, who did not lead any evidence in his defence, could not destroy these vital evidences of prosecution witnesses by cross-examining them. 32. The accused, who did not lead any evidence in his defence, could not destroy these vital evidences of prosecution witnesses by cross-examining them. 32. Though the defence by cross-examining P.W. 2, P.W. 3, P.W. 4, P.W. 5 and P.W. 6 tried to flatten the evidence of P.W. 2, elder sister of the deceased, an eye witness to the incident of hitting the deceased Troilakya, in his head, by the accused with an axe, that she was fishing at the time of occurrence of the incident But said P.W. 2 in her in her cross-examination clearly stated that prior to the incident she was also looking at the fishing done in the drain in front of their house. Though P.W. 3 and P.W. 6 stated that P.W. 2 & P.W. 5 were fishing together, but from their evidence it is clear that they were inside their house and only on hearing the screaming of P.W. 2 they came to the place of occurrence. P.W. 6 in his cross examination clearly stated that he did not see who were fishing in the drain, but also stated that his mother and Anjana Saikia were fishing at that time and as such his this statement is not reliable. Moreover, the defence by cross examining P.W. 5 could not reveal anything from her that she and the P.W. 2 was fishing together at the time of the incident to dislodge the evidence of P.W. 2. As such, the evidence of P.W. 2 seeing the accused hitting her brother, the deceased on his head by the axe remained intact. 33. The evidence of P.W. 1 that on being chased by the accused, he entered inside the house of a member of the village Panchayat Apurba Saikia (Court witness) who informed the Village Headman, Krishna Mahato (P.W. 11) over telephone that the accused killed the deceased and was moving in the road with an axe in his hand. This was corroborated by the P.W. 11 who in his evidence said that it is the Ward Member Apurba Saikia who informed him about the incident over phone and accordingly he informed police over phone about the incident. The Court witness Apurba Saikia also in his evidence stated that he informed the Village Headman Krishna Mahato (P.W. 11) about the incident over phone. 34. The Court witness Apurba Saikia also in his evidence stated that he informed the Village Headman Krishna Mahato (P.W. 11) about the incident over phone. 34. We have considered the evidence of the P.W. 2, elder sister of the deceased, who is an eye witness to the incident, who saw the incident of hitting deceased Troilakya on his head by the accused appellant with an axis; the evidence of the P.W. 4, neighbour of the accused appellant, who saw the accused 3/4 feet away from the deceased Troilakya, with an axe in his hand in the place of occurrence when he came there just after hearing the hue & cry; the evidence of the P.W. 5, wife of the accused and P.W. 6, son of the accused who reached the place of occurrence after hearing the hue & cry and saw the accused moving towards road with an axe in his hand; the evidence of PWs. 1 & 3 that accused chased them with the axe in his hand corroborated by the evidence of P.W. 4; the evidence of PWs. 7, 8, 11 & 12, the signatories to the Seizure Memo and Material Exhibit Axe from the accused and the Seizing Officer cum Investigation Officer respectively that the accused was having an axe in his hand and the evidence of the autopsy doctor, P.W. 10 who opined that the death of the deceased Troilakya was due to multiple blows and deep cut injuries by sharp weapon of about 6" in length on his head & neck region. From all these evidence of the eye witness, the circumstantial evidence, the seizure of the axe from the hand of the accused and the medical evidence of the case we are of the considered opinion that the evidence adduced by the prosecution have lead cogent and reliable evidence which proved that it is the accused appellant Bircha Kurmi who killed the deceased persons Troilakya Saikia by the axe on the fateful morning on the date of the incident beyond reasonable doubt about his guilt in the case in hand. 35. 35. In view of the aforesaid discussion, we are of the view that the judgment of conviction dated 15.03.2014 has rightly been recorded by the learned Additional Sessions Judge No. 2 (FTC), Tinsukia in Sessions Case No. 178 (M) of 2008, which does not require any interference in appeal and accordingly affirm the conviction and sentence recorded by the learned Trial Court. 36. Hence the appeal stands dismissed. 37. Before parting with the case we acknowledge' the assistance rendered by the amicus curiae, Mr. Sanjay Kr. Medhi appearing for the accused appellant and direct the State of Assam to pay him his legal remuneration of Rs. 7,500/-. Registry shall send down the records. Appeal dismissed.