P.K. Musahary, J.

1. Heard Ms. P Bhattacharjee, learned Counsel for the appellant and also heard Mr. D. Das, learned Additional P.P., Assam.

2. This appeal has been preferred against the judgment dated 11.2.2003 passed by the learned Sessions Judge, Darrang in Sessions Case No. 121(DM)/2001 convicting the accused-appellant under Section 307, IPC read with Section 326, IPC and sentencing him to suffer rigorous imprisonment for 4 (four) years and to pay fine of Rs. 5,000/- (rupees five thousand) in default further rigorous imprisonment for 1 (one) month.

3. The story projected by the prosecution is that the accused-appellant Sri Hemo Chandra Nath reared a wild monkey at his house. The said monkey, on 15.8.1999 attacked the daughter of one Sri Indra Kanta Medhi, a neighbour. His wife informed Indra Kanta Medhi, while he was ploughing in paddy field alongwith his brothers, namely Sri Deepak Medhi and Sri Pitambar Medhi. They all came to the house of the accused-appellant Hemo Chandra Nath. There was a heated altercation between the accused-appellant and Sri Indra Kanta Medhi and his brothers named above. The accused-appellant hit Sri Deepak Medhi, PW-3, brother of Indra Kanta Medhi, with a Dao over the backside of his neck. It was an attack with an attempt to cause death to Sri Deepak Medhi. Accordingly, Indra Kanta Medhi lodged a written FIR with the police, which was registered as Kalaigaon Police Station Case No. 77/1999 under Sections326 / 307, IPC. The victim Sri Deepak Medhi was shifted to Mangaldoi Civil Hospital and then to Guwahati Medical College Hospital for treatment. The Investigating Officer visited the place of occurrence on 16.8.1999 and seized the Dao from the house of the accused/appellant. During investigation, the investigating Officer also recorded the statements of some witnesses and after completion of investigation, submitted the charge-sheet against the accused-appellant under Sections 326 / 307, IPC.

4. The learned Judicial Magistrate, Mangaldoi committed the case to the Court of Sessions, as the said case is exclusively triable by the Court of Sessions. On appearance of the accused-appellant, the learned Sessions Court framed charge under Section 307, IPC against the accused-appellant, to which, on being read over and explained, the accused-appellant pleaded not guilty and claimed to be tried.

5. The prosecution examined as many as 8 (eight) witnesses including a Medical Officer and the Investigating Officer. Defence examined only 1 (one) witness. On conclusion of the trial and on consideration of the evidence on record and submissions of the learned Counsel for the parties, the learned Trial Court convicted and sentenced the accused-appellant as stated above.

6. Ms. Bhattacharjee, learned Counsel for the accused-appellant has taken me through the entire evidence of prosecution witnesses. According to the prosecution witnesses, they were ploughing in the field and came to the house of the accused-appellant without any arms. They simply carried lathi. But on their arrival, the accused-appellant started quarrelling with them and there ensued a scuffle and it was the accused-appellant, who ultimately struck a Dao blow on the right side of the neck of the victim Sri Deepak Medhi, PW-3. As per the evidence of PW-1 himself, there were, at least 3-4 villagers, namely Sri Surendra Nath, Mahendra Nath and Harendra Nath, present at the time of occurrence and these three persons tried to separate the persons, who were engaged in the scuffle. The prosecution, for reasons best known to them only did not cite them witnesses and preferred not to examine them. It is submitted by Ms. Bhattacharjee, learned Counsel for the accused-appellant that there is no cogent evidence to the effect that the Dao, which was seized from the house of the accused-appellant, belongs to him and the said Dao was used for causing the injury to victim Sri Deepak Medhi. Placing the evidence of PW-1, Sri Umesh Ch. Nath, a co-villager, it is su