Manojit Bhuyan, J.

This appeal by Md. Fakhar Uddin is preferred against the judgment and order dated 12.03.2014 passed by the learned Sessions Judge, Karimganj in Sessions Case No. 40/2011 convicting the appellant under Section 302/34 IPC and awarding sentence to undergo rigorous life imprisonment together with fine and default stipulation.

2. As per the case of the prosecution, on 06.04.2010 at about 7.30 P.M. while the deceased Abdul Malik was returning home from Gholcherra Bazar, the appellant along with some others assaulted Abdul Malik with sharp weapons causing instantaneous death. The elder brother of the deceased, namely, Abdun Noor (PW-1) submitted ejahar (Ext. 1) on 08.04.2010 relating to the incident before the R.K. Nagar Police Station. Upon receipt such report, a case under Sections 341/302/34 IPC was registered and investigation pertaining to the same also commenced. Post-Mortem was performed on the dead body, necessary memos were drawn and statements of witnesses were recorded. The appellant was apprehended and upon completion of the investigation, charge sheet was filed.

3. During trial, the prosecution examined 11 (eleven) witnesses including the Medical Officer who had conducted the Post-Mortem examination as well as the Investigating Officer. The appellant was examined under Section 313 CrPC and was also heard on the point of sentence.

4. Mr. S.C. Biswas, learned counsel representing the appellant submits that the depositions of eye witnesses Abdun Noor (PW-1), Abdul Ahad (PW-4) and Asad Uddin (PW-5) are neither consistent nor can be believed and, therefore, their depositions have been wrongly relied upon by the Court below for the purpose of convicting the appellant. Mr. Biswas submits that in the absence of eye witnesses, the standard of proof required to convict the appellant on circumstantial evidence, do not find established. According to him, the appellant could not have been convicted on mere hypothesis and on suspicion without the prosecution being able to conclusively prove that the appellant alone is the perpetrator of the crime in question.

5. To test the arguments advanced by Mr. Biswas, having regard to the materials on record, the following circumstances are noticed.

6. Abdun Noor (PW-1) is the elder brother of the deceased. He deposed that on 06.04.2010 he was proceeding towards the village mosque for performing 'namaz' along with the son of his paternal uncle. As he was about to reach the mosque, he heard the cry of the deceased Abdul Malik and having reached the place he found the appellant threatening them by displaying a sharp weapon. Being frightened, they moved away to some distance and at that time the appellant left the place along with the other accused persons. PW-1 went near his brother Abdul Malik and saw him lying on the ground. PW-1 deposed that he had seen stains of blood on the body of the appellant by the flash of torchlight. He also deposed that his brother Abdul Malik told him that the appellant had assaulted him. On raising alarm, people gathered and thereafter his family members along with the villagers gheraoed the appellant within his house. Information was made to the Police who came and arrested the appellant on the night of the day of occurrence along with his blood-stained clothes.

7. The deposition of Abdun Noor (PW-1) above discloses 3 (three) important aspects, that is, the appellant threatening by showing a sharp weapon; stains of blood being seen on the body of the appellant and the oral dying declaration made to him by Abdul Malik implicating the appellant. The veracity of the testimony of Abdun Noor (PW-1) was cross checked with the statements that he had made before the Police under Section 161 CrPC. From record, although the incident occurred on 06.04.2010, the statement of PW-1 under Section 161 CrPC was recorded more than a month later i.e. on 07.05.2010. In the said statement before the Police, Abdun Noor (PW-1) had stated that by means of the flashlig