Dr. Indira Shah, J.

1. The judgment and order dated 18.05.2010, passed by learned Session Judge, Morigaon, in Sessions Case No. 67/07, convicting the appellant under section 448 and 302 IPC and sentencing him thereby to undergo rigorous imprisonment for 6(six) months for his conviction under section 448 IPC and also to suffer imprisonment for life and to pay a fine of fine of Rs. 2,000/- (Two thousand), in default, of payment of fine, rigorous imprisonment for 2(Two) months for the offence committed under section 302 IPC has been challenged. Heard Mr. P.N. Choudhury, learned Amicus Curiae and Mr. B.J. Dutta, learned Additional PP appearing on behalf of the State.

2. The prosecution story, as projected during the trial, in brief, is that the accused Md. Saidul Islam gave a proposal to marry Rabiza Khatoon, the sister of the deceased, which was, however, rejected by Akbar Ali. Next day on 11.02.2007 at around 11.00 PM, the accused entered into the house of Akbar Ali and inflicted Dao blow on his neck, while Akbar Ali was sleeping on his bed along with his brother and father. Hearing the alarm raised by Akbar Ali, the family members of his house came to his room, they also raised hue and cry and the people from his vicinity gathered there. They saw Akbar Ali lying injured. However, he was able to talk and he disclosed how Md. Saidul Islam (accused) inflicted the injuries. Immediately, he was shifted to hospital where he succumbed to his injuries. FIR being lodged by Md. Hussain Ali, brother of the deceased, Morigaon P.S. Case No. 17/2007 under Section 448 /302 IPC was registered.

3. On completion of investigation, charge sheet under Section 448 /302 was submitted against the accused.

4. During the trial, charges under section 448 /302 IPC were framed against the accused. The accused pleaded not guilty to the charges. Altogether 16 witnesses were examined by the prosecution in support of its case. Thereafter, the statement of accused under Section 313 Cr.P.C. was recorded. The accused denied all the allegations levelled against him and pleaded that he is innocent. He, however, declined to adduce any defence evidence. The defence case, as it appears from the cross examination of prosecution witnesses is that brother of the deceased being mentally ill had inflicted injury on the Akbar causing his death.

5. Ms. Rabiza Khatoon, sister of the deceased (P.W. 4), Smt. Sakina Khatoon (P.W. 5) mother of the deceased, Md. Hasmat Ali (P.W. 12) brother of the deceased and Md. Abdul Jabbar (P.W. 13) father of the deceased were the inmates of the house of the deceased P.W. 1 Md. Hussain, is the cousin brother of the deceased. He deposed that the deceased used to live in the same house premises. On the date of occurrence at about 11.00 P.M., he heard hue and cry towards the house of Akbar Ali and rushed his house. He saw the accused running away from the house of the accused holding a Khukuri in his hand. He stated that he could identify the accused in the Moon light. He, further, deposed that on the same day in the evening prior to the incident, the accused proposed to marry Rabiza Khatoon i.e. sister of Akbar Ali. Akbar Ali rejected his proposal as he wanted his sister to continue her study. There was some altercation between them. He stated that the incident of altercation took place in presence of Jamal and Idul, on the side of the embankment. He alleged that the accused Saidul Islam intimidated the victim by saying, I will see you. According to P.W. 1 when he reached the place of occurrence, he saw Akbar Ali lying injured. Akbar Ali was capable of talking and disclosed that accused inflicted the injuries. He was immediately removed to Moirabari hospital wherefrom, he was referred to Nagaon Civil Hospital. He also stated that Mustt. Jerina Khatoon (P.W. 2), also arrived there just after hearing hue and cry. In cross examination, he stated there was an earthen lamp (Chaki) burning inside the room of Akbar Ali. The bamboo door of Akbar was