JUDGMENT
A. Ansari, J.
1. Heard Mr. K. K. Gupta, the learned Amicus Curiae for the appellant and the learned P.P.
2. This appeal is directed against the judgment and order, dated 13-7-99, passed by the Sessions Judge, Golaghat, in Sessions Case No. 37/92, convicting the accused-appellant Under Section 302. IPC and sentencing him to undergo imprisonment for life and to pay a fine of Rs. 100/- and, in default, to undergo further imprisonment for one year.
3. The prosecution case in brief is that on 2-2-92 at about 8 A.M. while Smt. Tilo Panika was sitting at her house and talking to her neighbour and relative, Jumuna Panika, at her own house, the accused-appellant, suddenly, entered into her house and assaulted Tilo Panika with an axe over her head as a result of which Tilo Panika died on the spot. On alarm being raised by Jumuna Panika and the children present in the house, people from the neighbourhood came rushing and saw the accused running away with an axe in his hand and blood stains on his wearing apparels. However, the accused was apprehended and tied by a rope and the police was informed by one Ramdas Panika. Thereafter, police arrived at the place of occurrence, held inquest over the dead-body and took the accused into their custody and seized the said axe. On completion of investigation, charge sheet Under Section 302, IPC was submitted against the accused.
4. In this case, the death of the deceased is not in dispute. PW-9 Dr. R.K. Deka held the post mortem examination on the dead body of the deceased and found as follows;–
“A stout healthy female body.
Rigormortis present.
INJURIES.
1) A deep seat blunt wound present over right temporal and occipital region of the head involving skin, trachea, vessels, bones of the skull.
Scalp, vertebrae, membrane, brain and spinal cord are lacerated.
Meninges congested.
Stomach-healthy and contained water.
Other organs were found healthy.
All the injuries described above are ante-mortem in nature.”
5. In the opinion of the doctor, the death was due to shock and haemorrhage as a result of the injuries sustained by the deceased.
6. Besides the medical evidence, we have evidence of Jamuna Panika (PW-2), Sangram Ekka (PW-5), Jirku Tirki (PW-6) and Satyen Lal Tati (PW-7), who have deposed that Smt. Tilo Panika died at her house as a result of the injuries sustained by her on her head.
7. In the face of the evidence on record, we have no difficulty to conclude that the death of the said deceased was homicidal in nature.
8. In the present case, Jamuna Panika (PW-2) is the only eye-witness to the occurrence. According to her evidence, on the day of occurrence of about 8 A.M. while she was sitting with Tilo Panika at the latter’s house, accused Baghia Urang, suddenly, came there and gave a blow with an axe on the head of Tilo Panika and out of fear, she (PW-2) initially, hid herself under the bed of the deceased, but when she saw the accused running away, she came out and raised alarm, whereupon the villagers came running and apprehended the accused and kept him tied at the house of the deceased. It is in the evidence of PW-2 that Tilo Panika expired at her house as a result of the injuries sustained by her.
9. Jamuna Panika (PW-2) was put to cross-examination by the defence at length, but nothing could be elicited at all from her cross-examination to show that her evidence should not be believed. The evidence of PW-2, thus, remained wholly unshakened. This apart, the presence at the house of the deceased, of PW-2, who is, admittedly, a close relation and neighbour of the deceased is not unnatural.
10. Coupled with the above, the neighbouring witnesses, namely, Sangram Ekka (PW-5), Jirku Tirki (PW-6) and Satyen Lal Tati (PW-7) have all deposed, in tune with each other, that on hearing hue and cry from the house of the deceased, they came running towards the place of occurrence and found the accused running away with an axe in his hand. They apprehended the accused, snatched away the axe from him, kept him tied and informed the police. The defence elicited nothing from the cross-examination of these three witnesses to show that their evidence cannot be relied upon.
11. It is also in the evidence of Satyen Lal Tati (PW-7) that he had seen stains of blood on the wearing apparel of the accused at the time, when the accused was apprehended. Thus, apart from the eye-witness’s account of the occurrence showing, as indicated hereinabove, the accused-appellant as the assailant of Tilo Panika, we, now, have on record strong circumstantial evidence showing that the accused was apprehended, while he was running away with an axe in his hand and blood stains were noticed, at that time on his wearing apparel. Coupled with these facts, the evidence of the Investigating Police Officer and other evidence on record clearly show that on arrival at the place of occurrence, police seized the axe, which had been snatched away by the witnesses aforementioned from the possession of the accused.
12. What, thus, crystallizes from the above discussion is that the evidence of the sole eye-witness to the occurrence, namely, PW-2 as well as the circumstantial evidence on record as indicated above, coupled with the medical and other evidence on record, leave no room for doubt that it was the accused-appellant who had assaulted the deceased and caused her death.
13. The present one is a case in which no animus between the accused-appellant and the deceased has been alleged by the prosecution. This apart, the evidence on record discloses that it was the blunt side of the axe, which was used for dealing the blow on the deceased and that there was only one blow on the head of the deceased, which proved to be fatal.
14. In the face of the facts pointed out hereinabove, we are of the view that the offence committed by the accused appellant falls Under Section 304 Part-1 IPC. Considering, therefore, the matter in its entirety, we set aside the conviction of the accused-appellant Under Section 302, IPC and convert the same to one Under Section 304, Part-I IPC and sentence him to suffer Rigorous Imprisonment for ten years. The period already undergone by the accused-appellant shall be set off in accordance with the provisions, of Section 428, Cr.P.C.
15. With the above modification in the conviction and sentence passed against the accused-appellant, the appeal stands disposed of.