H. Baruah, J.

1. Heard Mr. T.J. Mahanta, learned Counsel appearing on behalf of the Appellant as well as Mr. K.A. Mazumdar, learned Public Prosecutor, Assam for the Respondent.

2. The Appellant was tried under Section 302 IPC for committing murder of one Nabin Bora (deceased) on 14.9.98 at about 10.00 PM at Makrang Habigaon. The learned Sessions Judge, Jorhat after due trial convicted the Appellant under Section 302 IPC and sentenced to undergo rigorous imprisonment for life and to pay fine of Rs. 5,000/-, in default, to undergo further rigorous imprisonment for six months, in Sessions Case No. 100 (J-J)/99 vide judgment and Order dated 19.7.03.

3. The prosecution story as disclosed in the FIR lodged by Pradip Bora (P.W. 1) is that a quarrel ensured in between the Appellant and the deceased on 14.9.98 at about 10.00 PM over some trifling matters in the house of Bhim Kanta Gogoi (P.W. 8) and both went out of the premises of P.W. 8. The Appellant caused grievous injuries to the deceased with the help of a' Khukri'. Nabin Bora (deceased) succumbed to those injuries. When Narayan Gogoi (P.W. 4) appeared at the scene hearing alarm and the quarrel, he was too assaulted by the Appellant with the help of the same 'khukri'. P.W. 1, Accordingly on 15.9.98 lodged the First Information Report (Ext. 1) with Boihola Police Station. Due investigation was conducted and dead body was sent to hospital for postmortem examination. The 'khukri' had been seized by the investigating officer vide Ext. 4.

4. After completion of the investigation, a chargesheet was laid against the Appellant under Section302 IPC. The case being committed to the Court of Sessions, a charge was framed under Section302 IPC against the Appellant. The Appellant pleaded not guilty when the charge was explained to him.

5. Prosecution for the purpose of bringing home the charge brought as many as 12 witnesses including P.W. 6 (Suren Dutta) and P.W. 7 (Dr. KumudGogoi) and the Investigating Officer. At the closure of the trial, the Appellant was convicted as stated above.

6. The Appellant, feeling aggrieved and dissatisfied with the judgment and order of conviction and sentence, has preferred this instant appeal challenging its legality and correctness.

7. Mr. T.J. Mahanta, learned Counsel for the Appellant at the very outset of his agrument, submits that the judgment and order of conviction and sentence cannot be allowed to stand in view of material infirmities appearing in the testimony of P.W. 4 (Narayan Gogoi). According to him, the conviction was solely based on the testimony of this witness. But the testimony of P.W. 4, if scanned meticulously cannot be relied on since there appears some discrepancies in between his statement and statement of other witnesses examined in this case.

8. P.W. 4 (Narayan Gogoi) testified as under:

The house of Lt. Nabin Bora is near to ours. The house of accused Bhupen Bora is also near to ours. It has been some four years since Nabin died. Around 8.30 pm on the day of occurrence I went to attend the call of nature by the side of the road on our front. Then I heard a commotion at a distance of about 10 nais towards the field. Then I went to that place. I, then, saw Nabin Bora and accused Bhupen Bora there. Bhupen and Nabin was quarrelling then. I saw a pointed iron object in the hand of Bhupan Bora but could not discern what it was, and I saw Bhupen piercing Nabin with it. Thereafter, accused Bhupen also pierced me with that sharp object, and as a result, I sustained injuries below the left arm. I was stabbed since I went there. Returning home, in a run, I narrated the matter to my elder sister Junu Gogoi and, thereafter I went to inform the matter to Nabin Barua's house. Later, I took doctor's treatment for my injuries. Nabin died later.

9. From the evidence of P.W. 4, it appears that on the relevant night of about 8.30 PM, he had been to attend the call of nature by side of the road situated in their front. Then he heard a commotion at a distan