A.C. Upadhyay, J.

1. This appeal is directed against the judgment and order passed by the learned ad hoc Additional Sessions Judge, Hojai, Nagaon, in Sessions Case No. 61(N)/03, whereby the accused, Sikandar Ali, was convicted under Section 302, IPC and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 1,000, in default, to suffer rigorous imprisonment for another three months.

2. We have heard Mr. H.R.A. Choudhury, learned senior Counsel assisted by Mrs. A. Begum, learned Counsel for the appellant as well as Mr. Z. Kamar, learned Public Prosecutor, State of Assam.

3. Facts in brief, leading to the filing of this appeal, may be narrated in brief, as follows:

Md. Abdul Kadir (PW1), a resident of village No. 5 Udali under Lanka Police Station, lodged an Ejahar on 10.5.2000 in Lanka PS stating that on 9.5.2000 at about 10 a.m. in the morning his brother Md. Shahab Uddin left his residence for Garampani to work. After he had gone/passed about 500 meters from his residence, the accused persons, namely, Md. Sikandar Ali, Md. Joynal Uddin, Mr. Jalal Uddin, Md. Dilwar Hussain and Md. Zakir Hussain, armed with deadly weapons, way laid and assaulted him and, thus, caused severe injuries on his person.

Severely injured Md. Shahab Uddin was rushed to the Hazi Abdul Masjid Memorial Hospital (HAMMH), Hojai for treatment in a critical condition. Md. Abdul Kadir (PW1) also alleged in the Ejahar aforesaid that accused persons were very wicked characters and had attacked his brother to kill him.

4. The Officer In-charge, Lanka Police Station, on receiving the Ejahar filed by Md. Abdul Kadir (PW1), registered a case under Sections 147/148/149/341/325/326, IPC, and launched investigation.

5. In the meantime, since the condition of the injured Md. Shahab Uddin deteriorated, he was shifted from Hazi Abdul Masjid Memorial Hospital (HAMMH), Hojai to Guwahati Medical College Hospital (GMCH), for better treatment. However, on 24.5.2000, Md. Shahab Uddin succumbed to his injuries. Accordingly, on the prayer of the Investigating Officer (I.O.), Section 302, IPC, was allowed to be added in the police case.

6. During the course of investigation, inquest over the dead body of the deceased Md. Shahab Uddin was carried out at the Guwahati Medical College Hospital (GMCH), thereafter, post mortem of the dead body was also performed by PW10, Dr. Kalichran Basumatry. The investigating officer also visited the place of occurrence and recorded the testimony of the witnesses.

7. On completion of the investigation, the Investigating Officer submitted charge sheet against the sole accused/appellant, alleging Commission of offence under Section 302, IPC, against the sole appellant.

8. Upon submission of the charge sheet by the police, learned court below committed the case to the Court of Sessions, Nogaon for trial. The learned Sessions Judge, Nogaon, by an order dated 1.4.2003, transferred the Sessions case to the court of learned Ad hoc Additional Sessions Judge (FTC), Hojai for trial.

9. During trial, the learned Additional Sessions Judge, after hearing the learned Counsel for the State as well as the accused, finding sufficient materials against the accused, framed formal charge under Section 302 of IPC. On reading over and explaining the charge, the accused/appellant pleaded not guilty and claimed to be tried.

10. During the course of hearing, the prosecution side examined in all 10 witnesses, out of which 5 of them were unofficial and the remaining 5 were official witnesses. Out of 5 unofficial witnesses, Md. Abdul Kadir (PW3), Md. Hussain Ahmed (PW4) and Md. Suraj Ali (PW6) were declared hostile by the prosecution, as they resiled from their statements given under Section 161, Cr.PC. In fact, two un-official witnesses adduced by the prosecution side, namely, Abdul Kadir (PW1), the first informant cum brother of the deceased, and Smt. Ajufa Begum (PW2), who happened to be very near relative of the first informant, were the two witnesses on