DEKA,J. - (1.) THE appellant in this case was convicted under Section 302 of the Indian Penal Code and sentenced to life imprisonment by the Sessions Judge who agreed with and accepted the unanimous verdict of the jury. The appellant Basanta Gohain and his brother Nandeswar were charged under Section 302 read with Section 34 of the I. P. Code and committed to the Court of -Sessions for trial for causing the death of late Maneswar Gogoi, by an assault on the night of 11th December 1952.
(2.) THE prosecution case was that on the evening of 11th December, 1952 there was a feast known as 'Na -khowa' ceremony in the house of P. W. 4 Sopin Barua of village Bagdung Bharaluagaon to Which he invited some of his co -villagers and the family of Maneswar who was related to him through his son's marriage. Maneswar came to the feast with his younger sister P. W. 2 Mst. Labhoti Gogoi and his brother Budheswar (P. W. 1) joined them a little later at Sopin's place. It is alleged that while the people had gathered at the house of Sopin the two accused persons Basanta and his brother Nandeswar came and surreptitiously attacked Maneswar because of some old grudge. Basanta stabbed Maneswar on the back with a knife and in that injured condition Maneswar ran to the main house of Sopin which is shown as Ext. 'C' in the sketch map exhibited in the case. Maneswar's sister Mst. Labhoti took out the knife but immediately the two accused Basanta and Nandeswar broke into the house, or strictly speaking, forced into the house with a view to assault Maneswar. Maneswar tried to avoid them and soon came out of the house and ran towards the granary of Sopin being chased by the two accused with daos in their hands with which they dealt several blows on Maneswar. Both the accused are alleged to have taken part in the assault. The evidence mainly is that Basanta was seen inflicting the injuries on the person of Maneswar Who lay senseless near the granary of Sopin Barua within a few yards of the main house from which the two accused persons chased Maneswar. Soon after committing the assault the two accused persons fled away. Budheswar left the place out of fear. The first information report was made by him at Chabua than a in the early morning of the day following and the police sent the injured who was in a precarious condition, to the Barbari Hospital Where he died on 13 -12 -1952. The Police after investigation sent up both Basanta and Nandeswar under Section 302 read with Section 34 of the Indian Penal Code. The two accused persons pleaded not guilty and their plea was that they had not taken any part in the assault on Maneswar but they were implicated out of grudge. Sufficient evidence has been led in the matter and though Budheswar Gogol, brother of Maneswar who lodged the information with the Police, does not appear to have seen the assault on his brother to the finish as on his own admission he fled away out of fear as soon as his brother was attacked by the accused proves the beginning of the assault. Must. Labhoti - a girt of about ten or twelve - definitely says that she took out the knife from the back of Maneswar in the main house of Sapin Barua. The story of assault by Basanta accompanied by his brother is specifically brought out by Sapin, the host at whose place the 'Na -khowa.' ceremony took place. The accused made no attempt to deny that there was a 'Nakhowa' ceremony at the house of Sapin Barua on the night of the occurrence and that Maneswar had actually come there and was severally injured in his compound, as is the prosecution case. No definite suggestion has been made against Sapin as to why he should tell an untruth and implicate the accused falsely. Even no grudge has been suggested against him. Sapin in his deposition says that Maneswar and Must. Labhoti had come to his feast and even though Budheswar had come he did not come face to face with him. He saw from the courtyard Maneswar being chased by accused Basanta who was armed with a dao; he tried to stop Basanta by holding him by his waist but Nandeswar, his brother, threatened him to release his brother or he would meet With sad consequences. Nandeswar had also a dao in his hand, He saw Maneswar entering his main house and the two accused forcing open the door. He could see Maneswar coming out from the main house chased by the accused Basanta and Nandeswar and saw Basanta cutting Maneswar; Nandeswar was only following him. Maneswar fell down in front of his granary seriously injured from where he was taken to the Police Station and then to the hospital where he died. His version is not materially challenged except that a suggestion was made that he had not seen the occurrence at all. It is not suggested that the occurrence took place at any other house or at any other place or in any other manner. Of course, the burden was on the prosecution to prove the case against the accused and there is sufficient evidence on the point, P. W. 5 Ponai Gogol is an old man of about 75 years of age who had assembled for the purpose of the (east at Sapin's place. He supports Must. Labhoti as to the first part of the assault and assisted her inside the house. He did not see the latter part of the occurrence in detail but he saw Maneswar coming out being closely followed by the two accused who threatened other persons not to obstruct them. He saw Manes -war falling down that night injured in front of the granary of Sapin with entrails coming out as a result of the injuries received by him. Nothing has been challenged as to his veracity except that he had short sight. P. W. 7 is one Dina Dihingia, a co -villager of Sapin who saw Maneswar running into the main house of Sapin after raising a cry that he was assaulted. He saw the accused Basanta trying to break open the door and when he stopped Basanta, Basanta resisted him and freed out of his grip. He could see in the courtyard of Sapin, Basanta cutting Maneswar with a dao who fell down as a result of the injury in front of the granary. Nothing has been suggested why this man would be lying or should implicate the accused persons unnecessarily. There are other co -villagers of Sapin who support the prosecution story of assault on Maneswar by Basanta and he being followed by his brother Nandeswar.
(3.) IT has been further suggested by the defence and put to the investigating officer that Must. Labhoti had not mentioned Nandeswar's name as one of the culprits while she made her statement before the Police. This question could be put to the investigating officer after drawing the attention of the witness itself to the statement. But that was not done and as such, it was irregular that it should have gone to the Jury. But the learned Judge addressed the jury on the point and said that Must. Labhoti had not mentioned the name of Nandeswar as an accused While she was first examined by the investigating officer. This might have helped Nandeswar's acquittal, otherwise evidence is preponderating as to his liability. ;