Madan B. Lokur, C.J.@mdashThe Appellant was convicted of an offence u/s 302 of the IPC by the Sessions Judge, Tinsukia in Sessions Case No. 86(T)/2004 decided on 25-8-2005. He is said to have caused the murder of Sunil Karmakar by assaulting him with an axe on 20-12-2003 some time in the evening around 6 p.m. This appeal is directed against his conviction and sentence.
2. The alleged assault by the Appellant was witnessed by PW-2 Pradip Kishan, PW-5 Kunal Kishan, PW-6 Dukhan Jena and PW-3 Gangadhar Gorh.
3. It appears that PW-3 Gangadhar Gorh is a vendor of snacks and at that time the other three eye witnesses were taking some pakories at his stall when they saw the victim passing by the house of the Appellant. Suddenly the Appellant came out of his house with an axe in his hand and attacked the victim and dealt him some severe blows and ran away from there. PW-5 Kunal Kishan, the nephew of the victim, ran to the victim''s house, which was close by, and informed his wife of the incident and she came rushing to the place of occurrence.
4. In her testimony as PW-1 Binata Karmakar stated that she had received information of the assault from PW-5 Kunal Kishan and when she reached the spot she found that her husband was unable to speak. Thereafter her husband was taken to Nokhroy hospital by the eye witnesses to the occurrence and later to St Luke''s hospital, Tinsukia where he died. PW-2 Pradip Kishan, PW-3 Gangadhar Gorh, PW-5 Kunal Kishan and PW-6 Dukhan Jena all confirmed the assault on the victim by the Appellant and the presence of PW-1 Binata Karmakar immediately after the incident.
5. PW-2 Pradip Kishan stated that he, along with Gangadhar, Kunal and two others took the victim to the nearby garden hospital and then to St Luke''s Hospital in Tinsukia. PW-2 also stated that even though it was dark and the fog had started rolling in, he was very close to the place where the incident took place and could recognize the Appellant who is his co-villager and lived in the same locality. PW-3 Gangadhar Gorh confirmed the version given by PW-2 Pradip Kishan. PW-5 Kunal Kishan and PW-6 Dukhan Jena also confirmed the statement of PW-2 and they all testified that they were eye witnesses to the attack on the victim by the Appellant.
6. PW-4 is the doctor in the Nokhroy Tea Estate hospital, and when the victim was brought to him at about 7 p.m. he noticed that his injuries were rather serious and the victim was in a bad physical condition. This witness, therefore, referred the victim to St Luke''s Hospital, Tinsukia. In fact this witness himself took the victim to the hospital in Tinsukia but was later told that the victim succumbed to his injuries.
7. The nature of the injuries on the deceased were described by PW-11 Dr. R. Chaliha, who conducted the post mortem examination. He found four injuries on the victim and they were as follows:
(i) An incised wound over the right cheek, measuring 7x2 cm and cutting bone.
(ii) An incised wound over the right molar region, measuring 3x1 cm and cutting bone.
(iii) An incised wound below and behind the right ear, measuring 4x1 cm and cutting the right ear and mastoid bone.
(iv) An incised wound over the middle of the forehead, measuring 4x1 cm cutting the bone and producing a depressed fracture.
According to this witness, the injuries were caused by a heavy sharp cutting weapon and also blunt force impact and were homicidal in nature. In the opinion of this witness, injury Nos. (iii) and (iv) and the rupture of the liver were sufficient to cause the death of a person in the ordinary course of nature.
8. After the evidence of the prosecution witnesses was recorded, the Appellant was examined u/s 313 of the Code of Criminal Procedure but he did not give any defense except to say that he was falsely implicated and that the eye witnesses were in fact the persons who had committed the murder.
9. It has come on record that after the incident had occurred, the Appellant was absconding and when he was asked about this he stated that he was hiding out of fear of assault by the prosecution witnesses.
10. On these broad facts, the learned Trial Judge found the Appellant guilty of having committed the murder of Sunil Karmakar and sentenced him to imprisonment for life.
11. Learned Amicus Curiae appearing in the matter submitted that at the time when the incident is said to have occurred, it was quite dark and the Appellant could not have been recognized by the witnesses. We are unable to accept this contention. Even if it had become quite dark, as suggested, the evidence of PW-2 Pradip Kishan shows that the Appellant could be recognized because the incident occurred very close to where he and the other witnesses were standing. Therefore, the incident had occurred in such close proximity that the eye witnesses recognized the Appellant who was one of their co-villagers. In our opinion, the contention of learned Amicus Curiae that the Appellant was not recognized has to be rejected.
12. It was then submitted by learned Amicus Curiae that the weapon of offence was not exhibited during the trial. While this may be so, in our opinion the mere absence of the weapon of offence being exhibited is of no consequence on the facts of this case. All the eye witnesses have testified that the Appellant had used an axe to attack the victim. The medical opinion also suggests that the attack was caused by a heavy sharp cutting weapon which would certainly include an axe. It is also to be noted that the Appellant had absconded for quite some time immediately after the incident had occurred. Even if the axe was not produced, its mere non production would not be fatal to the case of the prosecution. Non recovery of the weapon of offence does not, per se, lead to the conclusion that there is inadequate proof against the Appellant. We are, therefore, not impressed by the submission made by learned Amicus Curiae.
13. We also cannot overlook the conduct of the Appellant immediately after the occurrence. The evidence shows that soon after the attack on the victim, the Appellant fled and was absconding. He was apprehended only later by other persons working in the Tea Estate. There was no reason for the Appellant to abscond, although he justifies his ascendance by saying that that he was afraid of the prosecution witnesses who were the actual criminals. In our opinion, this is a defense put forward for the sake of putting forward a defense. There is absolutely nothing to suggest why all the prosecution witnesses would gang up to incriminate the Appellant. There was no enmity alleged between the Appellant and the prosecution witnesses.
14. In view of the conduct of the Appellant immediately after the incident, coupled with the facts as they emerge from the record, including the unshaken testimony of the four eye witnesses, we have no hesitation in upholding the conviction of the Appellant. We do so accordingly.
15. There is, therefore, no merit in the appeal and it is dismissed. The Trial Court records be sent back immediately.
16. For the services rendered by learned Amicus Curiae the Assam State Legal Services Authority will remunerate her to the extent of Rs. 3000/-.
17. A free copy of this judgment be supplied to the Appellant.
