JUDGMENT :

SAHIDULLAH MUNSHI, J.

1. This appeal is against the judgment and order of conviction and sentence dated 23rd April, 2008 passed by the learned Additional District and Sessions Judge, Fast Track, 1st Court, Sadar, Cooch Behar in Sessions Trial No. 188/2007 convicting the appellant under Section 302 of the Indian Penal Code and sentencing the convict to suffer imprisonment for life and to pay fine of Rs. 5,000/- in default to suffer imprisonment for one year more for the offence punishable under Section 302 of the Indian Penal Code.

2. Baxirhat P.S. Case No. 74/06 dated 15.10.2006 was registered under Section 302 of the Indian Penal Code on the basis of written complaint dated 15.10.2006 received by the police station at 16.45 hours on the same day which ultimately, led to Sessions Trial no. 188/2007 in which the accused was convicted.

3. According to the written complaint filed by Mrinal Barman (PW-11) who happens to be another son of the victim, his second brother and mother used to live in a joint mess but due to some family disturbance his mother started leaving separately since 3-4 days prior to the occurrence of the incident happened at about 11.00 am. His mother/Sumitra Barman/victim aged about 52 years visited the house of his brother Ajit Barman to take an arum which was duly planted by her in the land situated behind the house of accused/ appellant and the said second brother/accused/appellant assaulted his mother with a ‘dao’ resulting whereby she fell down on the ground but the accused/appellant continued to strike blows of ‘dao’ on the person of his mother and thereafter, he continued to inflict several blows by a spade on his mother’s body and she died on the spot. According to the complainant (PW-11) he was not at his residence at the time of occurrence. This complaint dated 15.10.2006 was received by police on the same day at 16.45 hours. FIR was placed before the Chief Judicial Magistrate Tufanganj on 16.10.2006.

4. Investigating Officer took steps for inquest and thereafter, sent the dead body for post-mortem examination. The accused was arrested his statement was recorded and recovered the offending weapons as per the statement of the accused in presence of witnesses. The investigation culminated into filing of charge-sheet against the accused/ appellant for his commission of offence punishable under Section 302 IPC.

5. Record reveals that the offence was committed on 15.10.2006 at 11.00 am. Complaint was received at 16.45 hours on the same day. Accused was arrested on 15.10.2006 at 7.10 pm, produced before the Magistrate on 16.10.2006 and learned Magistrate granted bail on 15.01.2007. And again he was taken into custody on 23rd April, 2008 after which he was never enlarged on bail even during pendency of the appeal. He was in custody about 12 years.

6. This case was committed by the learned Additional Chief Judicial Magistrate, Tufanganj before the learned Sessions Judge and learned Sessions Judge thereafter transferred the same before the Court for adjudication. The trial Court framed charge against the accused after giving him opportunity to defend the charge framed against him under Section 302 of Indian Penal Code. The charge being read over and explained to the accused person he pleaded not guilty and claimed to face trial. Prosecution examined as many as 14 witnesses.

7. Learned trial Court took into consideration whether on the day when the offence was committed in the house of Ajit Barman, the said Ajit Barman himself committed the murder and if so whether he intentionally cause death of the victim/Sumitra Barman by making strikes with ‘Bekidao’ and ‘Kodal’ upon the victim or not. Learned trial Court in course of trial categorized the witnesses in two categories namely: (1) near relations and (2) local persons. The learned Court below has also taken note of some other witnesses who played different role in the process of investigation. PW-1 to PW-6 and PW-11 to PW-13 the witnesses of the first cate