B.K. Sharma, J.

1. This appeal is directed against the judgment of conviction and sentence passed by the learned Additional District and Sessions Judge No. 2, Tinsukia in Sessions Case No. 81(T)/2002 convicting the accused appellant under Section 302, IPC and sentencing him to undergo RI for life and to pay a fine of Rs. 2,000 and in default, R1 for another two months.

2. An FIR was lodged on 13.11.2000 by PW3 with the Officer-in-charge of Tinsukia Police Station to the effect that on the same day at about 6.30 P.M., some unknown persons killed the deceased by affecting injuries on his face and neck with sharp weapon. As per the said FIR, the dead body was found lying in a drain near Balugada Cross Road. On the basis of the said FIR, Tinsukia PS case No. 410/2000 was registered under Section 302, IPC. After investigation etc., the accused appellant was charged of committing an offence punishable under Section 302, IPC. The case being exclusively tribal by the Sessions Court, by order dated 18.6.2002 passed by the learned Judicial Magistrate 2nd Class, Tinsukia in GR case No. 979/2000, the case was committed to the said court.

3. The learned Additional Sessions Judge No. 2, Tinsukia, tried the case as sessions case No. 81(T)/2002. The prosecution examined altogether 8(eight) witnesses and the accused appellant examined none.

4. There is no eye witness to the incident of murder of the deceased. However, the learned trial court has convicted the accused appellant primarily on the basis of the purported incriminating materials against the accused appellant, as discussed in the judgment. The said incriminating materials are the statement of the accused before the Police and the seizure of a Dao, purportedly at his instance.

5. Let us now examine the evidence on record. PW1 in his deposition has stated that the occurrence took place in the month of November, 2000. At the time of occurrence, he was busy in his shop. At about 6.30/7 P.M., he having heard a commotion at the cross road near the shop, came out and saw the deceased lying injured in a drain. Thereafter he went to the Police Station and informed the police about the occurrence.

6. PW2 in his statement while narrating the incident has stated that he saw a person fleeing from the place of occurrence taking a Dao in his hand. However, he could not identify as to who the person was. He has further stated that the Police apprehended the accused appellant and seized a Dao from his house. In his cross-examination, he categorically stated that he did not know as to who the person was fleeing from the place of occurrence with a Dao. As regards the seizure of the Dao, he has stated that he did not see the seizure of the same. He also stated that he did not know the type of the Dao which the police had brought from the house of the accused appellant.

7. PW3 is the first informant. He in his deposition has stated about the incident. As per his statement, it was on 13.11.2000 at about 6 P.M., one Jagannath Gogoi informed him that the deceased had been lying dead in a drain. Going there, he found the deceased lying dead. Thereafter, he lodged the FIR. In his cross-examination, he has stated that he had come to know that the accused had killed the deceased from one Shri Jitmoni Das, mother of one Gerori. He has also stated that on the previous day, the accused had chased the deceased to assault him. He, however, admitted that he did not mention about these things in the FIR.

8. PW4 also stated that the occurrence took place in the year 2000. Like others, he also heard that the deceased had been murdered. Going to the place of occurrence, he could see that the deceased was lying dead in the drain. According to this witness, the police had come to the place of occurrence and prepared some papers. Letter on, they came again and took away the accused appellant. According to him, he was also taken to the Police Station and in the P.S., the accused appellant had confessed that he had killed the