The appellant prefers this appeal from jail against the judgment dated 30.07.2005 rendered by the learned Ad-hoc Additional Sessions Judge,Lakhimpur in Sessions Case No. 120(NL)/2002 whereby he was convicted U/S 304 Part I of the IPC and sentenced to undergo R.I. for 10 years and to pay a fine of Rs. 500/- and in default of payment of fine, to undergo further R.I for a period of 6 months.

2. The prosecution narrated its story as under :-

On 17.11.96 at around 2.30 P.M, the accused persons in a group armed with Khukri, lathi and sickle trespassed into the informant’s paddy field situated adjacent to her house and intercepted her husband Tonkeswar Gogoi (since deceased). The accused Moina Gogoi then dealt blows with Khukuri on informant’s husband inflicting injuries on head and various parts of his body. The injured husband after the incident was immediately shifted in a taxi to Civil Hospital,North Lakhimpur where he succumbed to his injuries at around 6 P.M. The FIR was lodged by the informant on the next day against 5 persons namely, Shri Moina Gogoi (present appellant), Shri Pakaria Gogoi @ Premodhar Gogoi, Shri Manu Gogoi, Son Gogoi and Shri Saru Pitou Gogoi.

3. On the basis of the FIR, Bihpuria P.S. Case No. 357/96 was registered U/S 147/148/447/302 IPC. The I.O. visited the place of occurrence, seized a split wooden handle of a khukuri and a 6 inches long Khukuri without handle with a hole towards the bottom from the place of occurrence .He held the inquest over the dead body,sent the dead body for post-mortem examination and collected the post-mortem report.

4. After completion of investigation, chargesheet was submitted against Moina Gogoi, Pakaria Gogoi,Manu Gogoi, and Son Gogoi. Out of them Manu Gogoi and Son Gogoi were declared absconders. On receipt of the case record on committal from the learned SDJM (S), Lakhimpur, the learned Ad-hoc Additional Sessions Judge, Lakhimpur framed charge U/S 147/148/447/302 IPC. The accused Moina Gogoi and Pakaria Gogoi stood the trial pleading innocence and not guilty. The trial proceeded against them after splitting the case from the other charge sheeted accused persons as they remained absconders.

5. The prosecution examined 6 witnesses including a Medical Officer and the I.O. The accused persons were examined by the learned trial court U/S 313 Cr.P.C. Putting before them all the incriminating evidence. They declined to adduce evidence in their defence. The learned trial court, thereafter, on consideration of the materials and evidence on record and upon hearing the learned counsel for the parties, acquitted the co-accused Premodhar Googoi (Pakaria Gogoi) for want of cogent evidence against him and convicted and sentenced accused Moina Gogoi as stated above.

6. Informant Smt. Malati Gogoi, wife of the deceased was examined as P.W-1. As per her evidence she came to the place of occurrence after she came to know about the incident from others. She saw her husband lying with cut injuries and she did not find him in a state capable to talk as he was lying unconscious. In cross-examination she stated that she does not know who was involved in causing death of her husband. On arrival at the place of occurrence she found her husband lying in the field with cut injuries. She also stated that her father-in-law Bhadreswar died about 3 years ago due to his old age.

7. The prosecution projected P.W-2 Smt. Moinamati Gogoi, P.W-3 Smt. Anita Gogoi and P.W-4 Smt. Junmoni Gogoi as eye witnesses.Their evidence is appreciated below.

8. Smt. Moinamati Gogoi is the mother of the deceased. As per her evidence she heard hue and cry on the date and at the time of occurrence and came to know from others that accused Moina Gogoi cut her son Tonkeswar and he was shifted to hospital immediately but he died on the way. In cross-examination she stated that she did not see who killed her son Tonkeswar. However, she stated that a quarrel took place at the paddy field between his son and accused Moina and at the time of

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