Arup Kumar Goswami, J.

1. This criminal appeal is directed against the judgment dated 4.4.2003 passed by the learned Sessions Judge, Darrang at Mongaldoi in Sessions Case No. 103 (DM)/2000 convicting the Appellant under Section 302 IPC and sentencing him to suffer imprisonment for life and to pay fine of Rs.5000/-, in default, further rigorous imprisonment for one year.

2. One Mokbul Hussain had lodged an ejahar before the Officer in-Charge, Silbori Police outpost on 5.11.99 stating that some assailants had entered into the house of his elder brother's son Md. Azizul Hoque by opening the door at around 11.30 p.m. on 4.11.99 and killed him by cutting his throat with sharp knife while asleep. Accordingly, Silbori police outpost G.D. Entry No. 56 dated 5.11.99 was made at 6.30 a.m. and the same was forwarded to the Officer-In-charge, Dalgoan Police Station whereupon Dolgoan P.S. Case No. 231/99 under Section 302 I.P.C was registered.

3. The Investigating Officer investigated the offence and on completion of investigation and finding materials against the accused/Appellant, submitted charge sheet under Section 448/302 IPC.

4. The case was committed by the learned Judicial Magistrate, Ist. Class, Udalguri to the Court of Sessions Judge, Darrang whereupon Sessions Case No. 103 (DM)/2000 was registered under Section 302 IPC. Charge under Section 302 IPC was framed against the accused person and the same was explained to him. The accused pleaded not guilty and claimed to be tried. During the course of trial, the prosecution examined 7 witnesses whereas defence adduced no evidence.

5. Informant Mokbul Hussain was examined as P.W-1, wife of the deceased Azizul Hoque, namely, Musstt. Halima Khatun was examined as P.W-2, Musstt. Jubaida Khatun, mother of the deceased was examined as P.W-3, Md. Jahurul Hoque, the brother of the deceased was examined as P.W-4, P.W-5 Bhabani Pasad Khound is the Doctor who conducted the post mortem examination, P.W-6 Hatem Ali is a neighbor and co-villager of the deceased and P.W-7 is the Sub-Inspector of Police who had conducted and investigated the case and had laid the charge sheet.

6. Out of the aforesaid witnesses, P.W-1, P.W-3 and P.W-6 are not eye witnesses to the occurrence. P.W-2 is an eye witness to the occurrence and P.W-4 was declared a hostile witness by the prosecution. P.W-6 is a witness to a seizure list Exhibit-4 by which a curved dao about 1 1/2 ft. long with its handle was seized after the same was recovered on being led by the accused. P.W-7 also claims to have recorded the statement of the accused by which the accused claims to have confessed his murder and had also stated that he had kept the dao in a pond near his house.

7. The learned trial Court convicted the accused/Appellant basing on the testimony of P.W-2, the recovery of the dao as per the statement of the accused leading to its discovery and also holding that confession in the facts and circumstances of the case was admissible in evidence.

8. P.W-1 came to the place of occurrence almost immediately after the occurrence after P.W-4 had informed him about the incident. According to him, he did not name anybody in the ejahar as he did not suspect anybody.

9. P.W-2 had deposed that when she was sleeping with her husband and her baby son, she woke up when the baby cried out. She found that the accused had entered her house and had killed her husband by cutting his neck with dao. She deposed that she could recognize the accused when he flashed his torch light. In her cross-examination, she had stated that she had a quarrel with the wife of the accused at about 4 p.m. on the day of occurrence. It was also her assertion that she had told P.W-1 and others that the accused had killed her husband.

10. P.W-3 in her deposition stated that P.W-2 had told her as well as her eldest son P.W. 4 that Latif had killed her husband. It has come out in her evidence in cross examination that when P.W-1 had come, P.W-2 had not told him that the accused ha