C.R. Sarma, J.

1. This appeal is directed against the judgment and order dated 28.2.2005 passed by the learned Sessions Judge, Jorhat in Sessions Case No. 51(JJ) of 2004. By the impugned judgment and order, the learned Sessions Judge convicted and sentenced the appellant for the offence under Section 302 of the Indian Penal Code, (hereinafter referred to as 'IPC') and sentenced him to suffer life imprisonment and pay fine of Rs. 1000/-, in default, suffer rigorous imprisonment for another period of six months. Aggrieved by the said conviction and sentence, the convicted person, as appellant, has come up with this appeal from jail. We have heard Mrs. Anupama Devi, learned amicus curiae, appearing for the appellant and Mr. D. Das, learned Addl. Public Prosecutor, appearing for the State respondent.

2. The prosecution case, in brief, may be stated as follows:-

On 8.12.2003 at about 10 A.M. at a tea estate, called Meleng tea estate, under Teok police station, a quarrel had taken place between the appellant and his brother, namely, Manik Karmakar (since acquitted) on one hand, and Sri Bali Nayak (hereinafter referred to as deceased), aged about 66 years, on the other hand. In the said occurrence, the appellant hit the deceased with a lathi and thereafter inflicted dao blows on his neck, thereby causing the death of the deceased. Sri Jatin Nayak (aged about 22 years) son of the deceased, who deposed as PW 1, coming to know about the occurrence from Smti. Minati Bhakta (PW 3), rushed to the place of the incident and found his father lying dead in the courtyard of Mamoni Bhakta (PW 4). Accordingly, PW 1, as informant, lodged an FIR with the police, which was registered as Teok PS Case No. 161/2003, under Sections 302/34, IPC. During the course of the investigation, the Investigating Officer (PW 9), got the inquest report (Ext. 2) prepared, forwarded the dead body for postmortem report and arrested the accused persons including the appellant. As the appellant was willing to make his confession, he was forwarded to the Court for recording his confession. The learned Judicial Magistrate (PW 8) recorded the confessional statement under Section 164, Cr. P.C. The police also prepared the sketch map of the place of occurrence and seized one 'Naga dao' i.e. the weapon of assault vide seizure list (Ext. A). At the close of the investigation, police submitted the charge-sheet under Section 302, IPC read with Section 34, IPC. The offence being exclusively triable by a Court of Session, the learned Chief Judicial Magistrate (Sadar), Jorhat committed the case to the Court of Sessions for trial. Accordingly, the learned Sessions Judge, Jorhat framed charges under Section 302 read with Section 34, IPC, against the appellant and his brother, namely, Manik Karmakar. The charges were explained and read over to the accused persons to which, they pleaded not guilty. They claimed to be tried.

3. In order to prove its case, the prosecution examined as many as nine witnesses including the Judicial Magistrate, (PW 8), who recorded the confessional statement of the appellant, the Medical Officer (PW 6), who performed the autopsy in respect of the dead body and the Investigating Police Officer (PW 9). At the close of the evidence for the prosecution, the accused persons were examined under Section 313 of the Code of Criminal Procedure, (hereinafter referred to as Cr. P.C.). Accused Manik Karmakar denied the allegations, brought against him. The appellant, in his statement given under Section 313, Cr. P.C. admitted that he caused the injuries leading to the death of the deceased by brandishing a dao in the air. He also admitted that he had made the confessional statement before the learned Magistrate that the weapon of assault i.e. 'Naga dao' was seized from him, on being produced by him.

4. The plea of the appellant was that, on the fateful day, the deceased, who was in a drunken condition, attempted to cut him with a dao, and while resisting, he had snatc