Mutum B.K. Singh, J.

1. Being aggrieved by the impugned judgment dated 17.11.2005, passed by the learned Sessions Judge, Morigaon in Sessions Case No. 83/2005, convicting the accused under Section 302, IPC and sentencing him to undergo rigorous imprisonment for life with a fine of Rs. 10,000 (Rupees ten thousand), in default, to undergo rigorous imprisonment for another 5 (five) years, this appeal has been filed by the accused (Appellant herein).

2. Heard Mr. M. Dutta, learned amicus curiae appearing for the Appellant and also Mr. Z. Kamar, learned Public Prosecutor appearing for the State.

3. On the basis of a report lodged by one Allaluddin (PW No. 1) against the accused and 4 (four) others alleging that on 11.6.2005 at about 5:30 a.m. his son, namely, Fakrul Islam was hacked with a "khukuri" on his neck by the accused and he died in the courtyard of Abdul Ali, Laharighat PS Case No. 38/2005 under Section 302/34, IPC was registered and set on motion.

4. On 11.6.2005, a dao was seized as delivered by PW No. 8, Mustt. Hafiza Khatun and also recorded the statement of the other witnesses. On 12.6.2005, the accused was arrested and on 13.6.2005, at about 4 p.m., the accused was produced before the SDJM(S), Morigaon for recording confessional statement. The confessional statement alleged to have been recorded on 14.6.2005. On completion of the investigation, the police submitted a charge sheet against the accused under Sections 302 and 324, IPC for murder of the deceased and causing hurt to his own wife. The other 4 (four) named accused persons were neither arrested nor forwarded for trial.

5. The learned trial court framed charges under Sections 302 and 324, IPC against the accused persons to which the accused pleaded guilty. However, the learned trial court instead of convicting the accused under Section 229 of the Code of Criminal Procedure, 1973 ('Code') proceeded with the trial of the case by examining as many as 11 prosecution witnesses. The accused was examined under Section 313 of the Code and he declined to produce any defence witness.

6. The learned trial court, at the conclusion of the trial, convicted and sentenced the accused to imprisonment for life with fine relying on the statement of the accused recorded under Sections164 and 313 of the Code, the alleged confessional statement of Ainul Haque (PW No. 7) and the statement of PW Nos. 1, 2, 7, 8 and 10.

7. We have carefully perused the evidence on record and of the view that the conviction of the accused was made by misappreciating the evidence on record and on the basis of inadmissible extraneous materials.

8. PW No. 1, Md. Allaluddin, the informant and the father of the deceased was not an eye witness. He deposes that his deceased son was found lying with cut injury on his neck near his right ear in the courtyard of Abdul when he rushed thereat on hearing "hulla". Some people took the deceased to Hospital but on the way he expired. Thus, the dead body was taken to police station and he lodged ejahar with the police.

9. PW No. 2, Ahmod Ali, also stated that he saw the deceased lying on the courtyard of Abdul in the morning.

10. PW No. 3, Dr. Nurul Amin is the Medical Officer who examined late Mustt. Monowara Begum.

11. PW No. 4, Mustt. Jarina Khatun states that in the morning of the occurrence she had seen the deceased lying in her courtyard and the wife of the accused lying near the door of the house of the accused. On seeing the deceased lying with injury, she created "hulla".

12. PW No. 5, Mustt. Chand Banu, the mother of the deceased deposes that she found her son lying in the courtyard of Abdul and her son died at the spot. She had also noticed blood stain from the house of the accused.

13. PW No. 6, Md. Khairul Islam is one of the seizure witnesses who deposes that the police seized a dao on production by PW No. 8, sister of the accused, in his presence and one Raij.

14. PW No. 7, Ainul Haque, the younger brother of the accused, states that as per the direction of hi