JUDGMENT : Mir Alfaz Ali, J. Heard learned Amicus Curiae, Mr. M.H. Laskar for he appellant and learned Addl. P.P., Ms. S. Jahan for the State-respondent. 2. This jail appeal is directed against the judgment and order passed by the learned Addl. Sessions Judge, Dibrugarh in Sessions Case No.125/2017, whereby, learned Addl. Sessions Judge convicted the appellant under section 302 IPC and sentenced him to imprisonment for life and fine of Rs.10,000/- with default stipulation. 3. According to prosecution on 13-05-2017, the appellant Lankeswar Lang inflicted injury to the deceased Sadhan Dev by stick and dao and thereby caused his death. Sajol Deb (PW1) lodged the FIR, Ext. 1, on the basis of which, police registered Tingkhong PS Case No.70/2017 under section 302 IPC and commenced investigation. During investigation, police recorded the statement of the witnesses, seized the weapon of offence and prepared inquest report and post mortem examination was done by Dr. S.J. Gogoi. 4. The autopsy doctor, who conducted post mortem examination on the body of the victim found the following injuries :- 1. A chop wound of size 10cm x 5cm x brain mater deep was found present over the right side of the head and underlying soft tissues, bones, membrane and brain matter was chopped. Margins of the wound were found abraded and contused. 2. A chop wound of size 4 cm x 2cm x bond deep was present over the left hand on the dorsal aspect. 5. The autopsy doctor was not examined. However, doctor Debashree Chakraborty, who was acquainted with the handwriting of the autopsy doctor, proved the post mortem report (Ext.-3). On completion of investigation charge-sheet was laid against the accused/appellant u/s 302 and eventually he stood trial. 6. In course of trial, the appellant denied the charge. Nine witnesses were examined by the prosecution to establish the charge against the appellant. Out of the nine witnesses examined by the prosecution, the PW-2, Jackob Bivar, who claimed to be an eye witness of the occurrence, deposed, that when he was working in his garden, he noticed the accused and the deceased walking together in the garden. After a while, having heard the scream of the deceased, when he looked towards him, he noticed that the accused was hacking the deceased with a dao. Immediately he rushed to the place of occurrence and saw the accused leaving the place hurriedly. After a while, having heard the scream of the deceased, when he looked towards him, he noticed that the accused was hacking the deceased with a dao. Immediately he rushed to the place of occurrence and saw the accused leaving the place hurriedly. He further stated that while leaving the place of occurrence, the accused stated, that he had cut Sadan Deb and going to police station. Arriving at the spot he found the deceased lying on the garden and his body was smeared with blood. He also stated to have seen cut injury on the neck of the deceased. During cross-examination, this witness stated that the appellant was suffering from some disease and when the disease relapses, he loses his conscience. 7. Pw-3 is the wife of PW 2, testified that hearing scream of the deceased, she went ahead and saw Lankeswar Lang carrying a dao in his hand. She also stated to have seen the blood stain body of the deceased, lying behind their house. She further stated in her cross-examination that she did not see the accused giving blows to the deceased. 8. Pw-4, who is the wife of the accused/appellant, deposed, that at the time of occurrence, she was plucking tea leaves in the garden. At that point of time having heard commotion, when she turned around, she noticed her husband running away from the place of occurrence. She also stated to have seen a dao in the hand of her husband, who was near the deceased and the deceased was lying on the ground. The statement of these three witnesses was also recorded by the Magistrate u/s 164 CrPC, wherein also they stated in the same manner. PW-4 though, stated in her statement recorded u/s 164 CrPC, that she had seen the deceased giving 'dao' blows to the deceased, and on seeing the occurrence, she got frightened, while deposing in court, she however, did not tell about her noticing the accused giving 'dao' blows. She only stated to have seen the appellant with a dao in his hand. The PW-4 being the wife of the appellant, this variation in her testimony in court is quite understandable. 9. Pw-5, Sanjay Bangra testified, that hearing scream of PW-4, wife of the deceased, he came to the place of occurrence and noticed the accused coming towards them with a dao stained with blood. The PW-4 being the wife of the appellant, this variation in her testimony in court is quite understandable. 9. Pw-5, Sanjay Bangra testified, that hearing scream of PW-4, wife of the deceased, he came to the place of occurrence and noticed the accused coming towards them with a dao stained with blood. Seeing the dao in his hand, he got scared and had fled away from the place of occurrence. Although during cross-examination of this witness, a suggestion was put, that he did not make the same statement before the police, he denied by the suggestion. Defence however, failed to bring on record any material contradiction in the testimony of this witness. For our satisfaction, we have seen the statement of the PW-5 recorded u/s 161 CrPC and we find that there was nothing in his statement recorded u/s 161 CrPC to contradict his version in the court. PW-6 stated that having heard the scream of PW-4, he went to the garden and found the accused standing near the body of the deceased. He also stated to have seen dao in the hand of the appellant and blood stain on his vest. 10. Pw-9, the investigating officer deposed that he was posted as second officer at Bamundari Police Outpost. According to him, on 13-05-2017 at about 10.15 pm, Jackob Bivar (PW-2) informed the police outpost over phone that Lankeswar Lang had murdered Sadan Deb. On receiving the information he made an entry in the general diary, being GD Entry No. 241 dated 135/2017, informed his superior officer and proceeded to the place of occurrence. Upon arriving at the place of occurrence, he prepared sketch map, examined the witnesses and in the meantime, he came to know that the accused had already surrendered in the police station and after returning from the place of occurrence, he arrested the appellant and seized the dao, which was produced by the appellant at the police station. During cross-examination of the investigating officer, it was elicited, that he did not notice any sickness of the accused at the time of occurrence. He also stated that the dao seized from the appellant was not sent for forensic examination. 11. Appreciating the above evidence, the learned Sessions Judge convicted the appellant u/s 302 IPC and awarded sentence as indicated above. 12. He also stated that the dao seized from the appellant was not sent for forensic examination. 11. Appreciating the above evidence, the learned Sessions Judge convicted the appellant u/s 302 IPC and awarded sentence as indicated above. 12. The learned Amicus Curiae submits that though, the learned trial court heavily relied on the oral testimony of the sole eye witness (PW-2), no reliance could be placed on his oral testimony, inasmuch as, the oral testimony of the PW-2 has suffered from the vice of contradictions and glaring inconsistencies. It is also submitted, that though the 'dao', the weapon of offence was seized, the same was not sent for chemical or serological test and, therefore, charge under Section 302 IPC, against the appellant has not been proved beyond reasonable doubt. 13. Per contra, the learned Addl. Public Prosecutor supporting the conviction and sentence of the appellant contends, that there was no significant inconsistency in the oral testimony of the PW-2, the lone eye witness, so as to render his evidence totally unworthy of placing reliance. It is further submitted by the learned Addl. Public Prosecutor, that the oral testimony of PW-2 has been corroborated by the extra-judicial confession of the appellant as well as the testimony of PWs-3, 4, 5 and 6, who, immediately came to the place of occurrence and noticed the accused-appellant with the dao smeared with blood, in his hand. 14. We have meticulously scanned the evidence of the witnesses and found that the presence of PWs-2, 3, 4, 5 and 6 were very much natural at the place of occurrence, inasmuch as, all the witnesses have stated that they were in the garden belonging to the PW2, where they were working. So far as the accused-appellant hitting the deceased with the dao is concerned, the oral testimony of the PW-2 appears to be consistent with his previous treatment recorded under Section 164 Cr.P.C. In the statement recorded under Section 164 Cr.P.C., the PW-2 stated, that he had seen the deceased giving blows to the accused with a 'dao'. He also stated to have seen the injury. He also stated to have seen the injury. However, the learned Amicus Curiae contends that the oral testimony of PW-2 is inconsistent with the medical evidence, inasmuch as, while deposing in Court, PW-2 stated that he had seen the injury on the neck of the deceased, which is contrary to medical evidence, according to which, the vital injury was on the head. The version of the PW-2, the eye witness, that he had seen the appellant inflicting the injury to the deceased also finds support from the PW-4, wife of the appellant as well as PWs-3, 5 and 6, all of whom stated to have seen the appellant with dao near the deceased as well as the injury of the deceased. The discrepancy, pointed out by the learned Amicus Curiae as to whether the dao blow was given on the neck or head may be possible and natural, inasmuch as he had seen the occurrence from a little distance. This apart, when a traumatic incident of hacking a person with deadly weapon is seen, any normal human being is sure to be shocked and in such circumstance, one may not notice certain facts properly because of traumatic situation, and therefore, oral testimony of the PW-2 cannot be brushed aside for such insignificant discrepancy, inasmuch as, his presence at the place of occurrence and witnessing the incident remained unshaken. The PW-2 further deposed that while he was proceeding to the place of occurrence and confronted with the accused, the accused confessed before him, that he had cut the deceased and he was proceeding to the police station. It is also in the evidence of PW-9, the Investigating Officer, that immediately after the occurrence the appellant surrendered in the police station and also deposited the 'dao', the weapon of offence, which was accordingly seized by police. The post occurrence conduct of the accused that immediately after the occurrence, he surrendered in the police station and deposited the weapon of offence being the 'dao' (a knife used for domestic work) also lent support to the evidence of the PW-2 as regards the confession made by the appellant before him. The evidence of the doctor, PW-7, clearly demonstrated that the fatal injuries, leading to death of the deceased was caused by moderately heavy sharp cutting weapon also suggests that such injury could have caused by a weapon like dao. The evidence of the doctor, PW-7, clearly demonstrated that the fatal injuries, leading to death of the deceased was caused by moderately heavy sharp cutting weapon also suggests that such injury could have caused by a weapon like dao. No doubt true, the 'dao', which was deposited by the accused with the police immediately after the occurrence and seized by police, was not sent for forensic examination. Obviously it was a lapse on the part of the Investigating Agency. However, such lapse on the part of the Investigating Officer cannot be considered to be of much signification in the facts and circumstances of the present case, inasmuch as there is clear evidence of the eye witness, having seen the appellant inflicting injury to the deceased. Therefore, in our considered view, non-examination of the 'dao' by the chemical expert in the present case, cannot be considered to be fatal to the prosecution. Had it been a case of only circumstantial evidence, matter would have been different. We also notice that a fragile attempt was made to establish a defence of insanity of the appellant. However, the same could not be proved and the learned Sessions Judge also discarded such plea. 15. Thus on careful scrutiny of the evidence in it's entirety, we find, that oral evidence of the PW-2, the eye witness who is found to be consistent on material particulars throughout the proceeding, supported by the testimony, the PWs-3, 4, 5 and 6 coupled with the extrajudicial confession of the appellant made before PW-2 and the post occurrence conduct of the appellant leaves no room for doubt, that it was the accused-appellant who inflicted the injury to the deceased, which led to the death. Therefore we find no reason to differ with the conclusion arrived at by the learned Sessions Judge for recording conviction of the appellant under Section 302, IPC and awarding sentence of imprisonment for life. Accordingly, we confirm and upheld the conviction recorded and sentences imposed by the learned Sessions Judge, Dibrugarh in Sessions Case No.125/2017. 16. Though the learned Sessions Judge has made an observation that the dependent of the deceased is entitled to compensation no order has been made as to the quantum of compensation to be paid to the dependent of the deceased. 16. Though the learned Sessions Judge has made an observation that the dependent of the deceased is entitled to compensation no order has been made as to the quantum of compensation to be paid to the dependent of the deceased. Therefore, we direct that, if no compensation is paid in the meantime, the dependent of the deceased shall be paid Rs.5,00,000/- under the victim Compensation Scheme by the Legal Service Authority. 17. The appeal stands dismissed. 18. We appreciate the assistance rendered by the learned Amicus Curiae Mr. M.H. Laskar. He shall be entitled to professional fees of Rs.7,500/- to be paid by the legal Service Authority on production of a copy of this judgment. 19. Send back the LCR.