H. Baruah, J.

1. Heard Mr. A.M. Majumder, learned senior counsel assisted by Mr. F.K.R. Ahmed, learned counsel for the appellant and Mr. K. Munir, learned Additional P.P., for the State of Assam, the sole respondent.

2. In this appeal, the judgment and order dated 29.11.2002 passed by Sessions Judge, Dhemaji in Sessions Case No. 38 (DH)/97 has been challenged. By this impugned judgment and order, the trial court convicted the appellant under Section 307, IPC and sentenced him to suffer rigorous imprisonment for two years and to pay fine of Rs. 1,000 in default rigorous imprisonment for one month.

3. The brief facts involved in this appeal can be recorded as under:

Informant Sri Sibaram Morang was entrusted with investigation of the case being No. Dhemaji P.S. 104 of 1995 under Section 394, IPC by the Officer-in-charge of Dhemaji police station. For the purpose of investigation of the case as indicated above, on 30.6.1995 at about 9.45 p.m. said Sibaram Morang along with Constable Gyandhar Deuri, Binanda Boruah, Naren Sonowal and several others proceeded to the place of occurrence and when all of them reached the weekly market, accused Kamal Gogoi, the appellant herein along with Piti Gogoi, Bhaikon Gogoi and Pankaj Konwar all on a sudden attacked Sibaram Morang, the Sub-Inspector of police, the Investigating Officer, Dhamaji P.S. Case No. 104 of 1995 with the help of dao resulting injuries to his right hand chest. During commotion accused Piti Gogoi was caught red handed by one of them. On lodgment of the First Information Report by Sibaram Morang with the Officer-in-charge, Dhemaji Police Station, Dhemaji P.S. Case No. 105 of 1995 was registered under section 333/307/427 read with section 34, IPC. Investigation commenced and after due investigation charge sheet was laid against the appellant under Section 333/307/427/34, IPC along with others, namely, Piti Gogoi, Pankaj Konwar and Bhaikon Dihingia @ Pranjal. It is to be noted that during investigation of the case, the Investigating Officer seized a dao from the possession of accused appellant Sri Kamal Gogoi along with his golden badge. The offence under section 307, IPC being exclusively triable by the Court of Sessions, the case was committed for trial of the accused persons to the Court of Sessions. The trial court on 4.2.1998 having prima fade material to presume that the appellant Kamal Gogoi, Piti Gogoi, Pankaj Konwar and Bhaikan Dihingia alias Pranjal committed offences under Sections 352 and 427, IPC framed charges accordingly against them while appellant Kamal Gogoi was charged alone under Section 307, IPC. Accused persons having not pleaded guilty to the charges, the trial commenced.

4. Prosecution all together to bring home the charges examined 10 witnesses including the doctor and the I.O. The trial court on the basis of the materials available and the evidence on record both oral and documentary by the impugned judgment dated 29.11.2002 convicted the appellant, Kamal Gogoi alone under Section 307, IPC. Finding no sufficient materials rather evidence on record as against all the four accused including the appellant herein acquittal was recorded under Sections353 and 427, IPC. Hence, this appeal.

5. At the very outset, Mr. A.M. Majumder, learned senior counsel for the appellant submits that the conviction and sentence awarded by the learned trial court by the impugned judgment cannot sustain in view of absence of proof of the Dhemaji P.S. Case No. 104 of 1995 and also in absence of proof of the command issued by the Officer-in-charge of Dhemaji Police Station-II, to the first informant, PW8, Sri Sibaram Morang to investigate the case as indicated. The second leg of argument advanced by Mr. A.M. Mazumder learned senior counsel is in respect of non-production of the torchlight, the means of recognition of the accused at the time of occurrence. It is argued by him that occurrence admittedly took place during night time at about 9.45 p.m. Except witness Sibaram Moran