This appeal is directed against the judg­ment and order dated 11.03.2004 as passed in Sessions Case No. 77 (J)/2000 by the learned Sessions Judge, Bongaigaon, convict­ing the appellant under Section 304 Part- II and sentencing him to suffer five years rigor­ous imprisonment and fine Rs. 500/-, in de­fault of payment to undergo another period of rigorous imprisonment for three months.

2. The prosecution case as gathered from the records is that on 25.04.1994 the appel­lant, namely, Abdul Alim had assaulted his younger brother Abdul Aziz having inflicted an injury by means of sharp weapon causing injuries. Another brother of the appellant namely, Haider Ali took the injured to the Chalontapara hospital and thereafter to Bongaigaon hospital. From Bongaigaon hos­pital the injured was taken to Goalpara Civil Hospital, where he succumbed to the injuries on 26.04.1994. After death, a First Information Report was lodged by the said brother of the appellant. During investigation, the po­lice seized a knife as allegedly shown by the appellant in presence of witnesses. The in­quest was conducted on the dead body in the hospital and accordingly report was pre­pared in presence of the witnesses. The po­lice also produced the appellant for recording the confessional statement before the learned Judicial Magistrate during investiga­tion. On completion of the investigation po­lice submitted charge sheet against the ap­pellant under Section 302 of IPC. Since the offence was exclusively triable by the Court of Sessions, the learned Judicial Magistrate at Abhayapuri committed the case for trial to that Court. On receipt of the case on com­mitment and duly registering the same in the Sessions Court the charge under Section 302 IPC was framed to which the appellant pleaded not guilty and claimed to be tried.

3. The prosecution examined as many as 10 (ten) witnesses including the Medical Of­ficer who carried out autopsy and the pros­ecution also admitted some documents viz. seizure list, post mortem report, inquest re­port etc. On closure of the prosecution evi­dence statement of the appellant were re­corded under Section 317 CrPC where he retracted from the purpoted Confessional statement. Since no other witnesses except the I.O. deposed anything against the appel­lant, he did not contradict their statement but denied the statement of the Investigating Of­ficer implicating him. One Defence witness was also examined. The said witness stated that there was quarrel between the appellant and one Noor Islam. Abdul Aziz also got en­tangled in some point of time. But the said witness also did not state categorically who assaulted Abdul Aziz.

4. The learned counsel appearing for the appellant as well as the learned Addl.PP. representing the State admitted that the PW 1 Hametaon Bewa, PW 2 Haidar Ali, PW 3 Aziz Uddin @ Amiz Uddin, PW 4 Abdul Monaf, PW 5 Hasmat Ali, PW 7 Noor Is­lam, P W 8 Jalal Uddin did not state anything against the appellant in respect of his involve­ment in assaulting the deceased. Only PW 7 Noor Islam stated that he heard from his pa­ternal uncle Mula police that a marpit between Abdul Aziz and Abdul Alim took place and as a result Abdul Aziz sustained injury and died consequently. The said paternal uncle was also not examined by the prosecution. PW 9 Sri. Kusum Ranjan Nath is the In­vestigating Officer. He stated that having learnt about the cause of the death from Haider Ali (PW 2) he proceeded to Goalpara Hospital where he found the dead body and thereafter he held inquest and the report is the Exbt. 2. He arranged for post mortem examination and collected the report from the PW 6. He also seized a knife by preparing a seizure list, at Exbt. 4, whereas the seized knife is the mate­rial Exbt. No.1. He also stated that he forwarded the accusd for recording the confes­sional statement from the police station. After collecting the confessional statement and post mortem examination he submitted the charge-sheet. He also d