A.K. Goswami, J.

1. This criminal appeal is directed against the impugned judgment and order dated 31.8.05 passed by the learned Addl. Sessions Judge, Jorhat in Sessions Case No. 49(J-J)/05 convicting the accused Appellant under Section 302 IPC and sentencing him to suffer rigorous imprisonment for life and to pay fine of Rs.2,000/-, in default of payment of fine, rigorous imprisonment for another six months. The learned Sessions Judge also convicted the accused under Section 325 IPC and sentenced him to suffer rigorous imprisonment for three months and to pay fine of Rs.1,000/-, in default of payment of fine, rigorous imprisonment for another one month.

2. The prosecution case, in brief, is that on 12.7.08 one Dulu Tanti lodged an FIR stating that in the evening of 11.7.04 at around 8.00 p.m., his son, Shri Kamal Tanti, was killed by Shri Pinku Rabi Das by striking him in head with a sword from behind and left his dead body in the gate way of his house. He further stated in the said FIR that the accused had also inflicted stab injuries with a sword in the right hand of Sri Samaru Rabidas, who was with his son. He came to know about the occurrence in the morning hours at about 4/5 a.m. when the younger sister of Samaru Rabidas had informed him about the occurrence seeing the dead body of Kamal Tanti. On the basis of the aforesaid Ejahar, Pulibor PS Case No. 51/04 under Section 326/302 IPC was registered.

3. When the charge sheet was submitted against the accused Appellant under Section 302/325 IPC, the learned Magistrate committed the case to the court of learned Sessions Judge, Jorhat as the case was exclusively triable by the Court of Sessions and, accordingly, Sessions Case No. 49(J-J)/05 was registered. Learned Sessions Judge framed charge under Sections 302 and 325 IPC. The Appellant denied the charges and pleaded not guilty and claimed to be tried.

4. During the trial, prosecution examined 14 witnesses in all and the defence did not examine any witness.

5. PW 1, Shri Dulu Tanti, is the informant who deposed that he was informed by Smti. Rukmini Rabidas, PW 3 and the sister of the injured witness Samaru Rabidas, PW 2, that she had seen Kamal Tanti lying dead about 500 ft. away from their house. After receipt of the information, he had gone to the place of occurrence and subsequently lodged an Ejahar, Ext-1. He was also a witness to the inquest report, Ext-2. He further states that Samaru Rabidas had told him that the accused had killed his son and he had witnessed the occurrence. In cross-examination, he stated that he had seen the dead body of Kamal Tanti lying in front of the house of the accused person and he had met Samaru Rabidas on the following day of the occurrence at the hospital.

6. PW 2, Sri Samaru Rabidas, is the injured witness who had stated that he and Kamal Tanti had attended a marriage ceremony. After they had spent some time in the marriage function, Kamal had asked him to accompany to have a look at his house and accordingly, both of them had gone there. Subsequently, they again returned to the marriage place and when they had reached the house of the accused, the accused, who was lying in wait, appeared there all on a sudden and attempted to assault Kamal with an axe. He stated that he caught hold of the axe and at that point of time somebody dealt him a blow in his back whereupon he fell down. He had stated that the accused inflicted cut injuries near his right elbow with the axe. As the accused was chasing him, Kamal started running towards his house. He somehow reached his own house and his family members took him to the hospital where he came to know that Kamal had succumbed to his injuries. Though in examination-in-chief, he had stated that he had informed about the occurrence to the father of the deceased, in cross-examination he stated that he did not tell the police that he had told Dulu Tanti about the occurrence. It also appears from his cross-examination that he had informed about the inci