JUDGMENT Suman Shyam, J. - The sole appellant in this case has been convicted under section 302 of the IPC for committing the murder of deceased Bijit Gogoi and sentenced to undergo rigorous imprisonment for life and also to pay fine of Rs.15,000/- and in default, to undergo rigorous imprisonment for a further period of six months. 2. The prosecution case, as unfolded during trial, is that on 04.05.2012 at about 7:00 p.m. in the evening, the accused had assaulted the deceased Bijit Gogoi on his forehead with an axe, as a result of which, he had received grievous injuries. The victim was shifted to the hospital where he received treatment but later on he had succumbed to his injuries. 3. On 05.05.2012, Smti. Rupi Gogoi i.e. the wife of the deceased, had lodged an F.I.R. with the Officer-in-Charge, Bhogamukh Police Station informing the Police that the accused had hacked her husband on the head with an axe as a result of which, he had sustained grievous injuries and was undergoing treatment in the Dibrugarh Medical College Hospital in a very critical state. On receipt of the F.I.R. Bhogamukh P.S. Case No.10/2012 was registered under sections 341/326 of the Indian Penal Code (IPC). Subsequently, after the death of the deceased, section 302 of the IPC was added. The Investigating Officer (IO) had recorded the statement of the witnesses, drew up sketch map, seized the axe and on completion of investigation submitted charge-sheet against the accused under section 302 IPC. Since the accused had pleaded innocence, hence, the matter went up for trial. 4. To bring home the charge against the accused, the prosecution side has examined as many as 10 witnesses. The statement of the accused was thereafter, recorded under section 313 of the Cr.P.C. wherein he had denied all the incriminating circumstances put to him. The accused has also taken a plea of alibi by stating that at the time of the incident he was attending "Nam Kirtan" at a place near his residence and he had left at 9:30 p.m. after the "Nam" was over. He had heard about the incident after reaching home. In support of the aforesaid plea raised by the accused, the defence side has examined one witness (DW-1). 5. He had heard about the incident after reaching home. In support of the aforesaid plea raised by the accused, the defence side has examined one witness (DW-1). 5. Taking note of the evidence available on record, the learned trial court was of the view that the prosecution side has succeeded in proving the charge brought against the accused under section 302 of the IPC beyond all reasonable doubt and accordingly, convicted him. 6. From an examination of the materials on record, we find that there are three eye-witnesses in this case viz., PWs-2, 4 and 5. PW-1, who is the informant in this case and the wife of the deceased, though not an eye-witness, had reached the place of occurrence soon after the incident had taken place and saw her husband Bijit Gogoi in an injured condition with head injury and blood oozing out of the head. 7. In her testimony, PW-1 i.e. Smti. Rupi Gogoi, has stated that the incident occurred in the month of April, 2011 at about 8:00 p.m. and at that time, she was present in her residence. Hearing commotion on the road she went out of her house and when she reached the place of occurrence she had seen her husband lying in an injured condition with blood oozing out from his head. PW-1 has stated that when she reached near her husband at that time he was in a condition to speak and her husband uttered the name of accused and stated that the accused had hit him with an axe and caused the head injury. Thereafter, her husband became unconscious. PW-1 has stated that she found an axe lying near her husband on the road and there was blood stain on the axe. Later on, her brother-in-law Krishna Gogoi came and informed the police. Her husband was taken to the Bhogamukh Hospital and thereafter to Teok Hospital and then shifted to Jorhat Medical College & Hospital from where he was referred to Aditya Diagnostics Hospital at Dibrugarh. PW-1 has also stated that her husband was admitted in the hospital at Dibrugarh for a night and he expired on the following morning. PW-1 has proved the F.I.R. Ext-1. During her crossexamination by the defence side, PW-1 has stated that when she reached the place of occurrence, besides herself, her sister in law Tutumoni Gogoi was also present there. 8. PW-1 has proved the F.I.R. Ext-1. During her crossexamination by the defence side, PW-1 has stated that when she reached the place of occurrence, besides herself, her sister in law Tutumoni Gogoi was also present there. 8. Tutumoni Gogoi, PW-2, is the sister-in-law of the deceased and in her deposition she has stated that on the date of the incident she had prepared dinner and at that time she received a phone call from her husband. While receiving the phone call she had come out of the house towards the courtyard where her motherin-law was sitting. At that time she had seen a person on the road in front of their house being hit by another person. The person who was hit fell down on the road. Then her mother-in-law had asked her to go out and accordingly she rushed to the road and saw that the person who was being attacked and who fell down on the ground was none other than her brother-in-law Bijit Gogoi. PW-2 has also stated that she had clearly seen the accused who went towards his house and while going he was also talking to himself. As per the testimony of PW-2, the house of the accused is located diagonally opposite to their house and she could recognize the accused by his appearance as well as by his house. PW-2 has also stated that the axe with which accused Bimal Duwarah had hit her brother-in-law Bijit Gogoi was lying on the grass near the road and when she raised alarm and hue and cry all her family members including her father-in-law Paniram Gogoi, mother-in-law Sarbeswari Gogoi and brother-in-law Krishna Gogoi came out of the house. PW-2 has further stated that Bijit Gogoi was injured on his forehead and that she had seen the assailant initially giving blows to Bijit Gogoi and thereafter, Bijit Gogoi fell down on the road. Then she had seen Bijit Gogoi being hit by something similar to a piece of stick/lathi. At that moment the victim shouted aloud "Aayoi, bowtie" which was an address to his mother. It is also the statement of PW-2 that when she had reached near the place of occurrence, the accused was going away from the place of occurrence towards his house shouting "Sut pali- sut pali", which in English means "Have you learnt your lesson! At that moment the victim shouted aloud "Aayoi, bowtie" which was an address to his mother. It is also the statement of PW-2 that when she had reached near the place of occurrence, the accused was going away from the place of occurrence towards his house shouting "Sut pali- sut pali", which in English means "Have you learnt your lesson! Have you learnt your lesson!" PW-2 had identified the seized axe Material Exhibit-1. During her cross-examination also, PW-2 has maintained that she had clearly seen the incident of assault made on the victim. The testimony of this witness could not be shaken during her cross-examination. 9. Pw-3, Sri Krishna Gogoi, is the younger brother of the deceased and in his deposition, the witness has stated that the victim Bijit Gogoi is his elder brother who was employed as a Homeguard and on the day of occurrence, when his brother was returning from duty at around 8:00 p.m. he heard a noise and on hearing the noise, his sister-in-law had raised an alarm. He came out of his house and saw his elder brother Bijit Gogoi lying down on the ground with injury on his head. He had seen an axe near his body. PW-3 has stated that he had also seen accused Bimal Duwarah near his elder brother Bijit Gogoi. His sister-in-law (PW-2) had come out of her residence before him and saw the incident herself. Later on, she (PW-2) brought the axe which was used by the accused to hit his elder brother. PW-3 has also stated that he had followed the accused to his house and asked him why he had assaulted his elder brother but instead of replying to his query the accused had threatened to kill him and he said in Assamese language "Tuku sut lageneki" meaning thereby that due also want to get yourself killed. It has also come out from the testimony of PW-3 that the incident took place on the path in front of their residence and the house of the accused is also situated at a walking distance of about 2 minutes from the place of occurrence. PW-2 has further stated that after returning home, they took a maruti van belonging to one Manoj Gogoi and brought his elder brother to the Jorhat Medical College Hospital. PW-2 has further stated that after returning home, they took a maruti van belonging to one Manoj Gogoi and brought his elder brother to the Jorhat Medical College Hospital. When they had reached the Jorhat Medical College Hospital at around 11:00 p.m. at night his brother was still alive. Next day, he was referred to the Aditya Hospital at Dibrugarh for better treatment and accordingly the victim was brought to the Aditya Hospital, Dibrugarh in an Ambulance but his brother died after two days at Dibrugarh. During his cross-examination the witness has stated that he did not tell the police that he came out of the house with a torch in his hand and clearly saw the accused Bimal Duwarah near his elder brother since the police did not ask him the same. 10. Pw-4, Sri Tutul Gogoi, is a cousin of the deceased and from his testimony it is evident that he is also an eye-witness to the incident. PW-4 has deposed that the incident occurred on the road in front of the house of deceased. The witness has stated that there was street light and as such he could see the occurrence with his own eyes. He saw the accused Bimal Duwarah hitting his cousin Bijit Gogoi with an axe on his right forehead/skull. Immediately thereafter, Bijit Gogoi fell down on the road. PW-4 has deposed that he saw the incident from a distance of about 35/40 ft. Immediately after hitting Bijit, accused Bimal Duwarah left the axe near the place of occurrence and he went away shouting that he had killed someone. Immediately he went to the place of occurrence and saw his cousin Bijit Gogoi lying on the ground with injuries and blood was coming out from his head. According to PW-4, Bijit Gogoi was lying at that time. He then raised alarm and immediately the family members of Bijit Gogoi including his wife (PW-1) and two children viz., Jomoki Gogoi and Huntu Gogoi came out near the place of occurrence. Then a vehicle was arranged and the injured was taken to the hospital at Boghamukh and from there to Teok FRU and finally to the Jorhat Medical College Hospital. On reaching the Jorhat Medical College Hospital the doctors had advised to take the patient to the Assam Medical College Hospital, Dibrugarh or to Gauhati Medical College Hospital at Guwahati for better treatment. On reaching the Jorhat Medical College Hospital the doctors had advised to take the patient to the Assam Medical College Hospital, Dibrugarh or to Gauhati Medical College Hospital at Guwahati for better treatment. Accordingly, Bijit Gogoi was brought to Assam Medical College Hospital, Dibrugarh for treatment where he died after two days. PW-4 has proved Ext2 seizure-list and has also confirmed that Ext-2(3) was his signature. The witness had identified the axe which was seized by the police as Material Exhibit-1. During his cross-examination, the testimony of this witness could not be shaken. 11. Pw-5, Smt. Sarbeswari Gogoi, is the mother of the deceased. She has deposed before the Court that on the day of the incident her son was returning back home after the duty and she saw her son coming towards their home but when he reached near the road in front of her house she saw the accused hitting her son and Bijit immediately fell down on the road. She then told her daughter-in-law (PW-2) to find out what has happened. PW-5 has also stated that after hitting her son Bijit Gogoi the accused has stated in Assamese language "Sut pali, sut pali" [Have you learnt your lesson! Have you learnt your lesson!]. PW-5 has also stated that immediately after the occurrence, the accused had left the place of occurrence. Then her daughter-in-law (pw-2) went near Bijit Gogoi and she raised an alarm and also tried to call 108 ambulance. Bijit had injuries on his head. During her cross-examination, the testimony of this witness also could not be shaken by the prosecution side. 12. Pw-6, Sri Manoj Gogoi, is the driver of the Maruti Van which was used for carrying the injured Bijit Gogoi to the hospital immediately after the incident. PW-6 has stated that on the day of the occurrence the younger brother of the accused viz., Krishna Gogoi (PW-3) had come to his house and asked him to bring the Maruti Van so as to take his elder brother Bijit Gogoi to hospital. When he reached the place of occurrence i.e. the ditch in front of the house of Bijit Gogoi, he found the victim lying there with severe head injuries. PW-6 has also stated that he saw his sister-in-law at the place of occurrence and the victim was still alive when he had reached the Jorhat Medical College Hospital where he was admitted. PW-6 has also stated that he saw his sister-in-law at the place of occurrence and the victim was still alive when he had reached the Jorhat Medical College Hospital where he was admitted. Cross-examination of this witness was declined. 13. Pw-7, Padmadhar Kalita, was the ASI serving at the Bhogamukh Police Station at the time when the incident had occurred. PW-7 has deposed to the effect that on 05.05.2012 he had received the ejahar from the PW-1 and accordingly the Officer-incharge of Bhogamukh Police Station had made a G.D. Entry and thereafter Bhogamukh P.S. Case No.10/2012 was registered under section 341/326 IPC. The PW-7 has also stated that he was deputed to go to the place of occurrence. PW-7 has stated that upon reaching the place of occurrence he had examined the witnesses and seized the axe with blood stain marks vide seizure-list Ext-2 in presence of witnesses. He had also drawn a sketch map of the place of occurrence. PW-7 has also stated that on 07.05.2012 the accused had surrendered at the Police Station and after examining him the accused was produced before the Court on 08.05.2012. Material Ext-1 was the axe which he had seen in the court. During his crossexamination, PW-7 has stated that Smti. Tutumoni Gogoi (PW-2) was produced before the court for recording her statement under section 164 Cr.P.C. and the witness had stated that she had witnessed the incident of assault with her own eyes. 14. Pw-8, Khagen Pachoni, is a neighbour of the accused and he had initially stated before the police that he had seen accused Bimal Duwarah make an assault on the victim Bijit Gogoi with an axe on his head in front of the gate of Tutumoni Gogoi and thereafter, threw away the axe near the road and uttered "sut pali, sut pali". However, during his deposition before the Court, this witness did not support the prosecution case as a result of which he was declared as a hostile witness. 15. Pw-9, Nidamul Islam, is the I.O. who had submitted the charge-sheet against the accused. This I.O. did not carry out the investigation which was done by the earlier I.O. i.e. the PW-7 but he had proved the charge-sheet Ext-5. 16. Pw-10, Dr. 15. Pw-9, Nidamul Islam, is the I.O. who had submitted the charge-sheet against the accused. This I.O. did not carry out the investigation which was done by the earlier I.O. i.e. the PW-7 but he had proved the charge-sheet Ext-5. 16. Pw-10, Dr. Nabojit Barman, was the doctor on duty at the Assam Medical College Hospital, Dibrugarh, on 07.05.2012 and he had conducted the post-mortem examination on the dead body of the victim. According to the PW-10, the following injuries were found in the dead body :- wxyz "INJURIES :- zyxw wxyz 1. One stitched wound of length 8 cm with 6 stitches present over the left tempero-parietal region of scalp, vertically present. On opening, one incised looking lacerated wound detected with underlying contusion of scalp and hematoma and depressed fracture of skull detected. zyxw wxyz SCALP, SKULL & VERTEBRAE - Hematoma of whole scalp. Skull - one depressed fracture of size 6 cm x 2 cm present over the left tempero-parietal region with radiating tissued fracture over right fronto-temporal region. MEMBRANE - Extruded haemorrhage of size 10 cm x 7 cm present over the right side of cerebral hemisphere. Sub-dural haemorrage present over both side of cerebral hemisphere. zyxw wxyz BRAIN AND SPINAL CORD - Brain is congested. Spinal cord not examined. zyxw wxyz LIVER, SPLEEN, KIDNEYS AND BLADDER - Congested. zyxw wxyz WALLS, RIBS & CARTILAGE - All are healthy. zyxw wxyz ORGANS of GENERATION, EXTEMA & INTERNAL - All healthy. zyxw wxyz WALLS, PERITONEUS, MOUTH, PHARINX AND OESOPHAGUS - All are healthy and congested. zyxw wxyz STOMACH AND ITS CONTENTS - Healthy. Contents - 25 ml of liquid material. zyxw wxyz SMALL INTESTINE AND ITS CONTENTS - Healthy and contains glue like fluidy matter. zyxw wxyz LARGE INTESTINE AND ITS CONTENTS - Healthy and contains gases and foecal matters. zyxw wxyz PLEURAE - Healthy. zyxw wxyz RIGHT AND LEFT LUNG - Both congested. zyxw wxyz HEART - Healthy and weighs 290 grams. In the chamber clotted blood present. zyxw wxyz MORE DETAILED DESCRIPTION OF INJURY OR DISEASE - NIL." zyxw wxyz The doctor (PW-10) had opined that the cause of death was due to coma resulting from the head injuries sustained by the deceased. All the injuries were ante-mortem and caused by blunt force impact and were homicidal in nature. zyxw 17. In the chamber clotted blood present. zyxw wxyz MORE DETAILED DESCRIPTION OF INJURY OR DISEASE - NIL." zyxw wxyz The doctor (PW-10) had opined that the cause of death was due to coma resulting from the head injuries sustained by the deceased. All the injuries were ante-mortem and caused by blunt force impact and were homicidal in nature. zyxw 17. From a careful examination of the evidence on record it appears that the PWs- 2 and 4 are the actual eye-witnesses to the incident and PW-5 had seen the incident from a distance but could not clearly identify the assailant. PW-5 had witnesses the incident from her house without actually going to the place of occurrence. PW-5 had stated that she saw the accused hitting her son after which he fell down on the ground. 18. We also find from the materials on record that the statement of PW-2 Tutumoni Gogoi was recorded by the Magistrate under section 164 Cr.P.C. in connection with Bhogamukh P.S. Case No.10/2012 wherein the witness had categorically stated that she saw the accused Bimal had struck her brother-in-law Bijit Gogoi on his head with an axe which he was carrying. From a careful reading of the statement of this witness we find that there is no contradiction in her evidence. As such, we are convinced that PW-2 is an eye-witness to the occurrence and she had seen accused Bimal Duwarah hit the deceased on his head with an axe. 19. Likewise, the evidence of PW-4 Putul Gogoi is also very convincing. This witness has clearly narrated the entire incident that he had seen on the date of occurrence. From the testimony of PW-4 we are convinced that he is also an eye-witness to the incident and that he had seen the accused Bimal Duwarah hit the victim Bijit Gogoi on his head with an axe. 20. The evidence of PWs-2, 4 and 5 corroborate the versions given by each other and leaves no room for doubt that it is none other than the accused Bimal Duwarah who had assaulted the victim Bijit Gogoi on his head with an axe as a result of which he had fell down on the road in front of his house and sustained grievous injuries which had ultimately resulted in his death. Moreover, the medical evidence clearly establishes the fact that the deceased had died a homicidal death due to the injury suffered in his hand. 21. We find that the accused had taken a plea of alibi and to prove the said plea, he had also examined one witness viz. Poddeswar Gogoi as DW-1. However, from a reading of the deposition of DW-1, we find that the said witness had clearly stated that he did not remember the date on which he had gone to a feast with the accused and he also did not know where the incident took place. DW-1 has also stated in his cross-examination that he did not remember the month on which the incident took place or whether it was summer or winter during that time. The evidence of DW-1, in our opinion, therefore, does not even remotely establish the plea of alibi taken by the accused. 22. Law is well settled that if an accused takes the plea of alibi, the burden to prove the same is on him. In the present case, as noticed above, although the accused had taken the plea of alibi, yet, in our opinion, he had failed to establish the same by adducing evidence. 23. For the reasons stated above, we are of the view that the prosecution has succeeded in firmly establishing the charge brought against the accused beyond all reasonable doubt. We, therefore, find ourselves in agreement with the view expressed by the learned trial court that the guilt of the accused has been proved by the prosecution side in this case beyond all reasonable doubt. Such being the position, there is no scope for this Court to interfere with the impugned judgment and order dated 19.05.2017 passed by the learned Sessions Judge, Jorhat in Sessions Case No.107(J-J)/2012. As such, this appeal is held to be devoid of any merit and is accordingly dismissed. wxyz Send back the LCR. zyxw