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2020 DIGILAW 73 (GAU)

Krishna Saikia @ Biman v. State Of Assam

2020-01-23

MANISH CHOUDHURY

body2020
JUDGMENT Manish Choudhury, J. - Heard Ms. R.D. Mazumdar, learned Amicus Curiae for the accused-appellant and Mr. P.S. Lahkar, learned Additional Public Prosecutor for the State. 2. This appeal from jail is presented against the judgment and order dated 05.07.2018 passed by the learned Sessions Judge, Jorhat at Jorhat in Sessions Case No. 41(J-J)/2014 whereby the accused-appellant has been convicted under Section 304 Part-II, Indian Penal Code (I.P.C.). The accused-appellant has been sentenced to undergo rigorous imprisonment for 7 (seven) years and to pay a fine of Rs. 10,000/-, in default, to undergo rigorous imprisonment for a further period of 6 (six) months. 3. The ejahar was lodged by one Smti. Jina Bora (P.W.1), who is the wife of the deceased. In the ejahar lodged by P.W.1 on 30.12.2013 before the In-charge, Lahdoigar Police Out Post, the informant had, inter-alia, alleged that at about 11-00 a.m., on 29.12.2013, Sunday, the accused was seen fishing in the pond under the possession of her father-in-law, after secretly trespassing into the same. Having seen him, her father-in-law, Sri Tukheswar Bora (P.W.6) and her husband, Arup Bora went near him but without any reason, the accused attempted to kill her husband by inflicting injury on his head by a spade. As a result, her husband sustained serious injuries and he had to be admitted in the Jorhat Medial College & Hospital (JMCH). Thereafter, her husband was admitted in the I.C.U. of Aditya Nursing Home at Dibrugarh for better treatment. The informant had mentioned that because of the same, there was some delay in lodging the FIR. 4. On receipt of the same, the In-charge, Lahdoigar Police Out Post registered a General Diary Entry being G.D. Entry No. 563 dated 30.12.2013 and forwarded the ejahar to the Officer In-Charge, Teok Police Station for registering the ejahar under proper sections of law. The In-Charge, Lahdoigar Police Out Post had also started the investigation of the case. On receipt of the ejahar, the Officer In-Charge, Teok Police Station registered the same as Teok Police Station Case No. 340/2013 under Sections 447/326, I.P.C. Correspondingly, G.R. Case No. 3290/2013 was registered. During the investigation, Arup Bora had expired on 30.12.2013 at Sanjeevani Hospital, Dibrugarh. The accused was arrested on 30.12.2013 and thereafter, forwarded to the Court vide Forwarding Report dated 30.12.2013. During the investigation, Arup Bora had expired on 30.12.2013 at Sanjeevani Hospital, Dibrugarh. The accused was arrested on 30.12.2013 and thereafter, forwarded to the Court vide Forwarding Report dated 30.12.2013. The inquest on the dead body of the deceased was conducted on 31.12.2013 at Sanjeevani Hospital, Dibrugarh by the Circle Officer, Dibrugarh. After the inquest, the dead body of the deceased was forwarded to the Assam Medical College & Hospital (AMCH), Dibrugarh on 31.12.2013. Accordingly, the post-mortem examination was done at the AMCH on 31.12.2013. In view of the expiry of the deceased, Section 302, I.P.C. was added later in the case on 02.01.2014. 5. In the course of investigation, the I.O. visited the place of occurrence and prepared the sketch map of the place of occurrence (Ext.-4). The statements of the witnesses were also recorded by the I.O. After collection of the Post-Mortem Examination Report (Ext.-5), the I.O. submitted a charge sheet being Charge Sheet No. 21/2014 on 26.02.2014 finding a prima facie case established under Sections 447/302, I.P.C. against the accused-appellant. 6. On submission of the charge sheet, the Court of learned Additional Chief Judicial Magistrate, Jorhat after securing the production of the accused-appellant from judicial custody, had complied with the procedure prescribed under Section 207, Cr.P.C. by furnishing him the requisite copies. As the offence under Section 302, I.P.C. is exclusively triable by the Court of Sessions, the learned Additional Chief Judicial Magistrate, Jorhat committed the case to the Court of Sessions, Jorhat by an order dated 02.04.2014. On receipt of the case records of G.R. Case No. 3290/2013, Sessions Case No. 41(J-J)/2014 was registered. It transpires that by an order dated 03.04.2014, the accused-appellant was allowed to be released on bail. Before the trial Court of learned Sessions Judge, the learned Public Prosecutor and learned Defence counsel were heard on the point of charge. After such hearing and perusal of the materials available on the record, the learned trial Court framed charges under Section 447, I.P.C. and under Section 302, I.P.C. against the accused-appellant. Thereafter, the charge was read over and explained to the accused-appellant to which he pleaded not guilty and claimed to be tried. After such hearing and perusal of the materials available on the record, the learned trial Court framed charges under Section 447, I.P.C. and under Section 302, I.P.C. against the accused-appellant. Thereafter, the charge was read over and explained to the accused-appellant to which he pleaded not guilty and claimed to be tried. As the learned trial Court had found that there was a cross case being G.R. Case No. 3289/2013 instituted on the basis of an ejahar lodged on behalf of the accused-appellant and the same was pending before the Court of learned Additional Chief Judicial Magistrate, Jorhat, the learned trial Court by an order dated 02.03.2016 had decided to try both the cases together. 7. In the course of trial, the prosecution in order to bring home the charges against the accused-appellant, examined 13 (thirteen) nos. of witnesses and exhibited 5 (five) nos. of documents viz. Ext.-1:- ejahar; Ext.-2:- Seizure list; Ext.-3:- Inquest Report; Ext.-4:- sketch map of the place of occurrence; and Ext.-5:- Post-Mortem Examination Report. The prosecution also exhibited a material exhibit, spade/hoe vide Mat.Ext.-I. 8. After analyzing and appreciating the evidence on record, the learned trial Court by the impugned judgment and order had not found the accused-appellant guilty of the charge of murder but had found him guilty of the charge of culpable homicide not amounting to murder under Section 304 Part-II, I.P.C. Accordingly, the accused-appellant has been convicted and sentenced by the impugned judgment and order, as has been mentioned herein above. Assailing the same, the present appeal has been preferred. 9. Ms. Mazumdar, learned Amicus Curiae by referring extensively to the testimonies of the prosecution witnesses, more particularly, the testimonies of those witnesses who were related to the deceased has submitted that their evidence are inconsistent and contradictory to each other. On close scrutiny of their evidence, she submits, it emerges that there were vast improvements in their versions in the Court from their statements made previously before the Investigating Officer. Thus, such evidence cannot be relied upon to bring home the charge against the accused-appellant. 10. Learned Additional Public Prosecutor has submitted that no interference of the impugned judgment and order is called for. From the evidence on record, it is established that the deceased had sustained the injuries, recorded by the doctor, from an incident where the accused-appellant was involved. 10. Learned Additional Public Prosecutor has submitted that no interference of the impugned judgment and order is called for. From the evidence on record, it is established that the deceased had sustained the injuries, recorded by the doctor, from an incident where the accused-appellant was involved. Since the accused-appellant had failed to bring home the charge against the informant''s side in the cross case the evidence on record in the present case cannot be discarded. Only because some of the witnesses were related to the deceased, their testimonies cannot be disbelieved on that mere ground. 11. In view of the aforesaid submissions of the learned counsel for the parties, it is apt to discuss the evidence of the prosecution witnesses. P.W.1 is the informant and the wife of the deceased. P.W.6 is the father of the deceased whereas P.W.7, P.W.8 and P.W.9 are the younger brothers of the deceased. P.W.3 is an uncle of the deceased. P.W.10 is also a related brother of the deceased. Thus, it has emerged that P.W.1, P.W.6, P.W.7, P.W.8 and P.W.9 are from the same family and P.W.3 and P.W.10 are the relatives of the family of the deceased. Both P.W.4 and P.W.5 are neighbours of the deceased and the accused-appellant. P.W.13 is the autopsy doctor, who conducted the post-mortem examination of the deceased. P.W.11 is an Assistant Sub-Inspector of Police at Borbari Out Post under Dibrugarh Police Station, who, on instruction, took preliminary steps and held inquest on the dead body of the deceased through an Executive Magistrate at Sanjeevani Hospital, Dibrugarh and thereafter, sent the dead body to the AMCH for post-mortem examination. P.W.12 is the Investigating Officer (I.O.) in the case. 12. P.W.1 in her examination-in-chief, had deposed to the effect that P.W.6 and the deceased on the date of occurrence, went to the nearby pond. The deceased on his way, fell accidentally in a ditch near the pond and at that time, the accused-appellant who was near the pond, struck spade/hoe blows on the deceased. On hearing screams, she came out of her house immediately and took the deceased to Sanjeevani Hospital, Jorhat wherefrom the deceased was taken to the JMCH. Thereafter, the deceased was shifted to Sanjeevani Hospital, Dibrugarh for better treatment and on the next day he expired. She deposed that after being injured, the deceased was unable to speak. On hearing screams, she came out of her house immediately and took the deceased to Sanjeevani Hospital, Jorhat wherefrom the deceased was taken to the JMCH. Thereafter, the deceased was shifted to Sanjeevani Hospital, Dibrugarh for better treatment and on the next day he expired. She deposed that after being injured, the deceased was unable to speak. She stated to have witnessed the occurrence from a distance of about 100 meters. She categorically stated that she was the only eye witness to the occurrence and had clearly seen the blow given by the accusedappellant with the help of the hoe on her husband. In cross-examination, she stated that the pond is situated at about 300 meters away from her residence. At the time of quarrel between the accused-appellant and her husband, she was present at a little distance. At the time of the incident, there was none from near her residence. She stated that at first, her husband accidentally slipped into the pond. She was confronted with her previous statement which has been, later on, confirmed through the I.O. (P.W.12) that she did not state previously that her husband fell down into the ditch accidentally and thereafter, the accusedappellant had assaulted her husband with the hoe. It is found out that P.W.1 did not say earlier that P.W.6 arrived at the place of occurrence and she proceeded after P.W.6. 13. P.W.2 is a witness who came to know about the incident only from the village people. He is a witness to the seizure list (Ext.-2) whereby one spade was seized. He, however, stated that he did not witness the seizure which was made in the house campus of P.W.6, which is also the house of the deceased. In cross-examination, he admitted that he put his signature on the paper at the request of police and was not aware as to whether anything was written on it. 14. P.W.3 is also a post-occurrence witness who came to know about the incident only from the villagers. The mother of the deceased who is not a witness examined, stated to have told him that the accused-appellant inflicted the injury on the deceased near the pond. He is a witness like P.W.2, to the seizure list (Ext.-2) whereby a spade (Mat.Ext.-1) was seized by police from the house of the deceased. The mother of the deceased who is not a witness examined, stated to have told him that the accused-appellant inflicted the injury on the deceased near the pond. He is a witness like P.W.2, to the seizure list (Ext.-2) whereby a spade (Mat.Ext.-1) was seized by police from the house of the deceased. In cross-examination, he admitted that he did not know anything about the incident and he did not state before the police that the mother of the deceased had told him that the accused-appellant inflicted the injury to her son. He further stated that Mat.Ext.-1 belonged to P.W.6, the father of the deceased. 15. P.W.4 like P.W.2 and P.W.3, is also a post-occurrence witness. In his examination-inchief, he stated that having heard about the incident, he went to the residence of the deceased and there, he was told by the deceased that the accused-appellant had inflicted the injury on him. In his cross-examination, he admitted that he did not state before the police that the deceased had told him that the accused-appellant had inflicted the injury on the deceased. He further stated that when he visited the residence of the deceased, the deceased was found to have come walking from the place of incident. 16. In view of the testimony of P.W.1 that the deceased after being injured, was not in a position to speak the testimony of P.W.4 to the effect that the deceased had disclosed to him that the accused-appellant had inflicted the injury to the deceased is found not believable. Similarly, in view of no corroboration from any other witness, the testimony of P.W.4 that the deceased came walking from the place of incident after being injured, to his residence is not acceptable. In view of the same, no credence can be given to the testimony of P.W.4. 17. P.W.5 in her testimony, had stated that her parental residence is situated near the houses of the accused-appellant and P.W.6. She got married to a resident of Sapekhati, Sibasagar about 1 (one) year before. On the date of occurrence, she was at her parental house. She deposed to have witnessed the family members of P.W.6 assaulting the accusedappellant near the paddy field and the pond. Witnessing the same, she coming back to her residence, informed the police about the same. There was a fight between the family members of the deceased and the accused-appellant. On the date of occurrence, she was at her parental house. She deposed to have witnessed the family members of P.W.6 assaulting the accusedappellant near the paddy field and the pond. Witnessing the same, she coming back to her residence, informed the police about the same. There was a fight between the family members of the deceased and the accused-appellant. The wife of the accused-appellant and his daughter ran to the place of occurrence and they after rescuing the accused-appellant, took him to his house. In cross-examination, she reiterated that she witnessed the family members of the deceased assaulting the accused-appellant and the accused-appellant was also shifted to the JMCH for medical treatment. 18. P.W.6 i.e. the father of the deceased had deposed that on the date of occurrence, he was at his residence. The accused-appellant and one Nalia went to his pond situated near his paddy field to catch fish. The deceased also went to the pond to request the accusedappellant not to catch fish in their pond. The deceased slipped into the pond and at that time, the accused-appellant who was holding a spade in his hand, assaulted the deceased on his head. At that time, P.W.6 along with his 2 (two) other sons also went to the pond and witnessed the incident. He along with his 3 (three) sons including the deceased, stated to have gone to the pond to stop the accused-appellant and his companion from catching fish in their pond. In the cross-examination, he stated that there was a cross-case, instituted by the accused-appellant, against his sons. He was confronted with his previous statement which was, later on, confirmed through the I.O. (P.W.12) that he in his previous statement, did not state that on the date of occurrence, he with his sons went to the pond near the paddy field and found the accused-appellant catching fish at that time and that the deceased slipped into the pond and thereafter, the accused-appellant had dealt the blow on the head of the deceased with the help of a spade. 19. P.W.7 had deposed that he and his father (P.W.6) also accompanied the deceased to the pond and they were behind the deceased. He stated that the accused-appellant had assaulted the deceased with the help of a spade and as a result, the deceased fell down into the pond. 19. P.W.7 had deposed that he and his father (P.W.6) also accompanied the deceased to the pond and they were behind the deceased. He stated that the accused-appellant had assaulted the deceased with the help of a spade and as a result, the deceased fell down into the pond. He further stated that he and his father (P.W.6) were just behind the deceased when they reached near the place of assault, the accused-appellant had also chased him to assault. In his cross-examination, this witness stated that the deceased fell down in the pond by slipping accidentally and there were bamboo groves inside the pond. This witness was confronted with his previous statement made before the police and which was, later on, confirmed to the I.O. (P.W.12) that he did not state before the police that the accused had assaulted the deceased with a spade for which he fell down into the pond; that the accusedappellant had also chased him; and that he and his father (P.W.6) were just behind the deceased. He admitted that he stated before police that the deceased caught hold of the neck of the accused-appellant and thereafter, the accused-appellant was dragged inside the pond by the deceased. He further admitted that there was a scuffle between him and the accused-appellant, which was intercepted by his father (P.W.6). He further stated that in the said scuffle, the accused-appellant was not grievously injured. He further admitted that after the incident, the wife of the accused-appellant took him back to the house. 20. P.W.8 had stated that he did not witness the occurrence and he was told by P.W.6 and P.W.7 that the accused-appellant had assaulted the deceased with a spade. Thus, P.W.8 is only a hearsay witness. 21. P.W.9, another brother of the deceased, had deposed that the deceased went to the paddy field and witnessed the accused-appellant catching fish in their pond. There was altercation between the deceased and the accused-appellant. Thereafter, the accusedappellant all of a sudden dealt a spade blow on the head of the deceased which he had stated to have witnessed from a little distance. The deceased also wanted to assault the accused-appellant but he could not succeed in his attempt because P.W.6 prevented the deceased from doing such act. Thereafter, the accusedappellant all of a sudden dealt a spade blow on the head of the deceased which he had stated to have witnessed from a little distance. The deceased also wanted to assault the accused-appellant but he could not succeed in his attempt because P.W.6 prevented the deceased from doing such act. In his cross-examination, he admitted that he was not present at the time of incident and he arrived at the place of occurrence only after the incident. He admitted that he did not witness the incident. He only came to know from his brother that the deceased accidentally fell down into the pond when he was altercating with the accusedappellant and then, the accused-appellant dealt a spade blow on the head of the deceased. In his testimony, he stated that the land where the pond is situated is a government land. 22. P.W.10 is also a post-occurrence witness who stated to have noticed cut injury on the head of the deceased. P.W.11 exhibited the Inquest Report (Ext.-3). After the inquest, he stated to have handed over the preliminary case diary. P.W.12 (I.O.) had stated about the steps he had taken during the course of the investigation. P.W.12 exhibited the seizure list (Ext.-2) whereby Mat.Ext.-1, the spade was seized by him from the campus of P.W.6. He stated to have visited the place of occurrence. In his cross-examination, he stated that the place of occurrence is not a pond but a low land, which is situated at a distance of about 300/400 meters from the residence of the deceased. In his cross-examination, the defence had confirmed the contradictions made by the witnesses viz. P.W.1, P.W.4, P.W.6 and P.W.7 in their testimonies by referring to the previous statements made by these witnesses recorded under Section 161, Cr.P.C. 23. P.W.13 who was serving as an Assistant Professor in the AMCH on 31.12.2013, conducted the post-mortem examination on the dead body of the deceased and on such examination, he found the following injuries : wxyz 1) One incised wound over right fronto parieto region of 10 cm length, 2 intense insiter, 5 cm above right eye brow and 1 cm midline, clean cut of 6 cm in length with one radiocity fracture to exist parieted bone and depressed fracture of 2 cm X 2 cm with one rality fracture over the midline to left parity ong 6 cm length. Poval cut, with hammer injury. zyxw wxyz 2) Stitched wound over pelmac aspect of left ring with three stitches of 6 cm in length muscle cut. zyxw wxyz 3) Incised wound of over the little finger in the as per vellin. zyxw 24. In the opinion of P.W.13, the cause of death was due to the head injury sustained. The injuries were ante-mortem in nature and caused by a sharp cutting weapon and homicidal in nature. In cross-examination, he stated that the deceased went to coma due to the injury sustained by him and the injury found on the dead body could not occur due to fall on sharp bamboo object. 25. On an examination of the versions projected by the prosecution witnesses viz. P.W.1, P.W.6, P.W.7, P.W.8 and P.W.9, who are closely related to the deceased some inconsistencies are found. P.W.1 had stated that when the deceased went to the nearby pond, he accidentally fell into the ditch near the pond and at that time, the accused-appellant struck the blow on the deceased. She further stated that she came out of her house immediately. She did not say that P.W.6 also went to the pond with the deceased. She stated to have witnessed the occurrence and claimed that she was the only eye witness, who had seen the blow given by the accused-appellant. As she herself stated that she came out of the house after the incident she could not have seen the assault considering the fact that there was only one injury on the head. When she was confronted with her previous statement which had been confirmed through P.W.12 i.e. the I.O., it is found that she did not state previously that her husband fell down into the ditch accidentally and thereafter, the accused-appellant had assaulted the deceased with the hoe. It is found out that P.W.1 did not say earlier that P.W.6 arrived at the place of occurrence and she proceeded after P.W.6. P.W.6 on the other hand, had deposed that on the date of occurrence, he was at his residence. He did not say that he also went with the deceased to the pond. He had also stated that the deceased slipped into the pond and it was at that time, the accused-appellant had assaulted the deceased on his head. P.W.6 on the other hand, had deposed that on the date of occurrence, he was at his residence. He did not say that he also went with the deceased to the pond. He had also stated that the deceased slipped into the pond and it was at that time, the accused-appellant had assaulted the deceased on his head. P.W.6 had further stated that he along with his 2 (two) other sons also went to the pond and witnessed the incident. Thereafter, he once again stated that he along with his 3 (three) sons including the deceased, had gone to the pond to stop the accused-appellant and his companion from catching fish in their pond. But from a conjoint reading of his cross-examination along with the testimony of P.W.12, it has emerged that he did not state earlier that on the date of occurrence, he with his sons went to the pond near the field and found the accused-appellant catching fish at that time and that the deceased slipped into the pond and thereafter, the accused-appellant had dealt the blow on the head of the deceased with the help of a spade. P.W.6 did not say anything about P.W.1 witnessing the incident. On a close analysis of the testimonies of these 2 (two) witnesses, it is found that there were serious inconsistencies and the varying versions projected by them about the manner of witnessing the incident do not inspire such confidence to rely on their testimony unhesitantly. 26. P.W.7 initially deposed that he and P.W.6 also accompanied the deceased to the pond and they were behind the deceased. Unlike P.W.1 and P.W.6, P.W.7 had stated that at first, the accused-appellant had assaulted the deceased with the help of a spade and as a result thereafter, the deceased fell down into the pond. He further stated that he and his father were just behind the deceased. But P.W.1 and P.W.6 had never stated that he and P.W.7 were just behind the deceased accompanying the deceased to the pond. P.W.7 had further stated that the accused-appellant had also chased him to assault. He further stated that he and his father were just behind the deceased. But P.W.1 and P.W.6 had never stated that he and P.W.7 were just behind the deceased accompanying the deceased to the pond. P.W.7 had further stated that the accused-appellant had also chased him to assault. But from his cross-examination and the testimony of P.W.12, it has emerged that he did not state earlier that the accusedappellant had assaulted the deceased with a spade for which the deceased fell into the pond; that the accused-appellant had also chased him; and that he and P.W.6 were just behind the deceased. Thus, there were inconsistencies amongst the testimony of P.W.1, P.W.6 and P.W.7 which cannot be brushed aside as insignificant. What has emerged further is that in his previous statement, which was later confirmed through P.W.12, P.W.6 had admitted that it was the deceased who catching hold of the accused-appellant, dragged the accused-appellant inside the pond and there was a scuffle between the deceased and the accused-appellant. Such kind of projection was not made by either P.W.1 or by P.W.6, who also claimed to be an eye witness to the incident. P.W.7 also stated that after the incident, the wife of the accusedappellant took him back to the house. P.W.8 is only a hearsay witness and as such, no credence can be placed on the veracity of his testimony. P.W.9 also claimed to have witnessed the accused-appellant catching fish in their pond. He projected a different version to the versions projected by P.W.1, P.W.6 and P.W.7. He stated that there was an altercation between the deceased and the accused-appellant and all of a sudden, the accused-appellant dealt a blow by the spade on the head of the deceased which he had stated to have witnessed from a little distance. But P.W.1 did not report about the presence of P.W.9 and about P.W.9 witnessing the incident of assault. From the admission of P.W.9 in his cross-examination, it has emerged that he was not present at the time of incident and he arrived at the place of occurrence only after the incident. Thus, his version about the act of alleged incident cannot be accepted as he had clearly admitted during his cross-examination, that he did not witness the incident and he heard about the same only from his brother. Thus, his version about the act of alleged incident cannot be accepted as he had clearly admitted during his cross-examination, that he did not witness the incident and he heard about the same only from his brother. But what had come out of his evidence that contrary to the claims of P.W.6, the pond where the accused-appellant was allegedly catching fish, is located in a government land. 27. In the light of the discussions made above, it is found that the testimonies of the above witnesses made in Court were at great variance from what they had stated during investigation. Two different versions have emerged. As per one version, it was the accusedappellant who was the aggressor. The other version also appearing from the above P.W.s, is that it was the deceased who was the aggressor. The alleged incident of scuffle between the deceased and the accused-appellant had taken place in connection with fishing in a pond which is located in a government land. 28. P.W.2, P.W.3 and P.W.4 are found to be post-occurrence witnesses and their versions about the incident being hearsay, are not acceptable. The testimony of P.W.2 as regards seizure is found deficient and cannot be held to be trustworthy. The testimony of P.W.4 as regards disclosure made by the deceased about the injury inflicted on him by the accusedappellant is not at all believable in the face of the evidence of P.W.1 i.e. the wife of the deceased, who stated that after being injured, the deceased was not in a position to speak. In the similar way, the testimony of P.W.3 as regards the information provided to him by the mother of the deceased about the cause of injury on the deceased is not believable. But what has emerged from the testimony of P.W.3 is that the Mat.Ext.-1, the spade which was seized vide Ext.-2, belonged to P.W.6. It further transpires from the evidence on record, Mat.Ext.-1 was only seized from the campus of the deceased. 29. From the testimony of P.W.5, it is found that she is a neighbour to both the deceased and the accused-appellant. In her testimony, P.W.5 stated that the occurrence took place at about 10/11 a.m. and she witnessed the family members of the deceased assaulting the accused-appellant. After seeing the occurrence, she immediately came back to her residence and informed police about the same. In her testimony, P.W.5 stated that the occurrence took place at about 10/11 a.m. and she witnessed the family members of the deceased assaulting the accused-appellant. After seeing the occurrence, she immediately came back to her residence and informed police about the same. She had categorically stated there was assault between the family members of the deceased and the accused-appellant. The wife and the daughter of the accused-appellant ran to the place of occurrence to rescue the accused-appellant and took him back to his house. In her cross-examination, she reiterated the same. She further deposed that after the incident, the accused-appellant was shifted to the JMCH for medical treatment. P.W.5 is found out to be an independent witness and a neighbour to both the families but not related to either of the families. Nothing has been elicited from her evidence which demolishes her testimony to the effect that it was the family members of the deceased who were assaulting the accused-appellant at the place of occurrence. 30. In his examination under Section 313, Cr.P.C., the accused-appellant had stated that the prosecution witnesses had deposed falsely and it was only P.W.5 who had presented the true state of affairs. He further stated that he had been falsely implicated due to previous enmity. It was he who had been assaulted by the family members of the informant - P.W.6, P.W.7, the deceased, P.W.10 and one Bogai. He further stated that the incident took place in his paddy field and the pond belonged to him. He never visited any pond belonging to the family of the deceased to catch fish. From the evidence of P.W.5, it has emerged that the family members of the deceased including the deceased had assaulted the accused-appellant and due to such assault, the accused-appellant had suffered some injury for which the wife and the daughter of the accused-appellant after rescuing from the place of occurrence, took him to hospital for medical treatment. But none of the prosecution witnesses belonging to the family of the deceased had mentioned that the accused-appellant had sustained any injury nor explained anything as to how the accused-appellant had received such injury for which he was taken to hospital for medical treatment. Thus, the prosecution witnesses belonging to the family of the deceased did not project versions which were entirely true. Thus, the prosecution witnesses belonging to the family of the deceased did not project versions which were entirely true. Further, the versions projected by these witnesses were varying and inconsistent with one another. It is also found from the evidence of these prosecution witnesses that the accused-appellant during the incident had fallen into the ditch which had bamboo groves. Thus, there is a possibility that the deceased might have received the injuries by falling into the ditch. No light has been thrown by the prosecution witnesses about how after falling into the ditch accidentally the deceased got up. From the evidence, it was only for the head injury sustained by the deceased which had caused his death. All the prosecution witnesses belonging to the family of the deceased are found to have made improvements and embellishments in their testimonies made before the Court, which were not made by them in their previous statements. 31. It is settled that the evidence of related and interested witness having an interest in seeing the accused punished and also having some enmity with the accused is to be examined with care and caution than the evidence of a third party disinterested and unrelated witness. Such evidence of a related and interested witness has to be examined by applying a standard of discerning scrutiny as a rule of prudence. It is in the aforesaid view of the matter, the evidence of those prosecution witnesses in the instant case, who are related to the deceased, have been revisited and analysed and having done so, it is found, as have been discussed above, that they had projected varying versions which are discrepant and inconsistent with one another. 32. It is further found that the learned trial Court in the impugned judgment and order of conviction and sentence, had discussed the evidence led by the prosecution in G.R. Case No. 3289/2013 which was, later on, registered as Sessions Case No. 87(J-J)/27 where the accused-appellant was the informant and tried together with Sessions Case No. 41(J-J)/2016. After such discussion, inferences were found to have been drawn in rendering the finding of guilt against the accused-appellant in Sessions Case No. 41(J-J)/2014. 33. After such discussion, inferences were found to have been drawn in rendering the finding of guilt against the accused-appellant in Sessions Case No. 41(J-J)/2014. 33. The Hon''ble Supreme Court in the decision in Nathi Lal vs. State of U.P., (1990) Supp1 SCC 145 has delineated the procedure to be followed by the trial Court in respect of a case and a counter-case as under : wxyz "We think that the fair procedure to adopt in a matter like the present where there are cross cases, is to direct that the same learned Judge must try both the cross cases one after the other. After the recording of evidence in one case is completed, he must hear the arguments but he must reserve the judgment. Thereafter he must proceed to hear the cross case and after recording all the evidence he must hear the arguments but reserve the judgment in that case. The same learned Judge must thereafter dispose of the matters by two separate judgments. In deciding each of the cases, he can rely only on the evidence recorded in that particular case. The evidence recorded in the cross case cannot be looked into. Nor can the judge be influenced by whatever is argued in the cross case. Each case must be decided on the basis of the evidence which has been placed on record in that particular case without being influenced in any manner by the evidence or arguments urged in the cross case. But both the judgments must be pronounced by the same learned Judge one after the other." zyxw wxyz The aforesaid view is reiterated by the Hon''ble Supreme Court in Sudhir and others vs. State of M.P., (2001) 2 SCC 688 . zyxw 34. In view of the principle laid down in the aforesaid decisions, a discussion of the evidence recorded in the cross-case by the learned trial Court to draw any inference in the other case is to be avoided and the learned trial Court has to rely only on the evidence recorded in that particular case. Thus, any reference to the evidence recorded in the cross case i.e. Sessions Case No. 87(J-J)/2016 (G.R. Case No. 3289/2013) here is found unnecessary. Thus, in order to find the guilt of the accused-appellant it is only the evidence led in Sessions Case No. 41(J-J)/2014 which are required to be appreciated. Thus, any reference to the evidence recorded in the cross case i.e. Sessions Case No. 87(J-J)/2016 (G.R. Case No. 3289/2013) here is found unnecessary. Thus, in order to find the guilt of the accused-appellant it is only the evidence led in Sessions Case No. 41(J-J)/2014 which are required to be appreciated. The evidence led by the prosecution in Sessions Case No. 41(J-J)/2014 have already been discussed and examined above and after such discussion and examination, the evidence on record in Sessions Case No. 41(J-J)/2014 have been found deficient, inconsistent and not of such credit to reach an unhesitant and conclusive finding that it is the overt act of assault on the part of the accused-appellant which had led to the death of the deceased. The version projected by the accused-appellant in his explanation under Section 313, Cr.P.C read with the evidence of P.W.5 gives rise to the possibility of a hypothesis that it was the accused-appellant who was assaulted first by the family members of the deceased including the deceased himself and the accused-appellant being alone, had acted in his right of private defence. Another hypothesis that the deceased had sustained the injury by falling into a ditch which contained bamboo groves is also cannot be ruled out. Thus, on a dispassionate scrutiny of the evidence on record this Court is of the considered view that the prosecution has not brought sufficient and trustworthy evidence to prove the case against the accused-appellant beyond all reasonable doubts. As a result, the accused-appellant ought to have been given the benefit of doubt. Therefore, the impugned judgment and order of conviction and sentence is not sustainable and the same is accordingly, set aside and quashed. Consequently, the accused-appellant is to be set at liberty. If on date, the accused-appellant is in custody and he is not required in connection with any other case, he be set at liberty forthwith. The appeal stands allowed. 35. Appreciating the assistance rendered by Ms. R.D. Mazumdar, learned Amicus Curiae, we hereby provide that she will be entitled to professional fee of Rs.7500/-. Upon production of a copy of this judgment, Guwahati High Court Legal Services Committee shall pay the fee to Ms. Mazumdar. 36. Send down the LCR.