SONGKHUPCHUNG SERTO, J.

1. Heard Ms. M. Bujarbaruah, learned Amicus Curiae appearing for the appellant and Mr. M. Phukan, learned Addl. Public Prosecutor, Assam.

2. This is a Jail appeal directed against the judgment dated 30/4/2016 passed by the learned Addl. Sessions Judge-1 (FTC), Tinsukia in Sessions Case No.168 (T)/2012, wherein the learned Sessions Judge held the appellant guilty of having committed the offence punishable under section 302 IPC and sentenced him to life imprisonment and a fine of Rs. 30,000/- and a stipulated imprisonment of 6 months which is also rigorous, in default of payment of fine.

3. The prosecution case in brief is that on the night of 16/3/2012 around 8.30 PM, the deceased/victim Johan Soley was invited by one Soren Soley to his house for dinner. As invited, the deceased victim went to the house of Soren Soley and while they were having dinner, the accused-appellant came with an iron rod and hit the deceased victim on his head twice. Soon thereafter, the victim was taken to Kakopathar hospital but was brought back to the house of one Bishram Soley and in the early morning of the next day he was once again taken to the same hospital but, he succumbed to his injuries before he could reach the hospital. The Police was informed by lodging an ejahar by Neloni, daughter of the deceased victim on 17/3/2012. The P.S at Tongona registered the FIR and investigated the case. They also arrested the accused appellant and seized the weapon allegedly used i.e. iron rod. In the process, post mortem was conducted on the dead body of the deceased victim by one Dr. Apurba Kumar Borthakur. After completion of collection of evidence including examination of the witnesses under section 161 Cr.PC, the I.O. of the case was of the opinion that there was sufficient materials to go for trial against both the accused-appellant and the owner of the house (P.O) therefore, charge sheet was submitted against them before the Chief Judicial Magistrate, Tinsukia who forwarded the same to the learned Sessions Judge, Tinsukia. On receipt of the same, the learned Sessions Judge made over the case to the learned Addl. Sessions Judge-1(FTC) and the learned Addl. Sessions Judge, on 14/8/2012 framed the charge under section 302 read with section 34 IPC both against the accused appellant and the owner of the house where the incident took place. In the trial 13 witnesses were examined by the prosecution but not a single witness was examined by the defence. After examining the evidence and on hearing the parties, the learned Sessions Judge held the accused Soren Soley, owner of the house where the incident took place not guilty but held the accused appellant guilty of having committed the offence under section 302 IPC and sentenced him as stated above. Not satisfied with the judgment of the learned Addl. Sessions Judge, the accused-appellant has approached this Court on appeal from jail.

4. Ms. M. Bujarbaruah, learned Amicus Curiae after leading us through the evidence given by the 13 witnesses submitted that the evidence on record are not sufficient to held the accused-appellant guilty under section 302 of IPC. The learned counsel further submitted that there are discrepancies between the evidence given by the witnesses therefore, the learned Addl. Sessions Judge has erred in convicting the accused appellant. According to the learned Amicus Curiae, there are only 2 eye witnesses to the incident i.e. PW 8 and PW 9 and according to their statements, at the time, when the incident took place, the light was dim inside the house (P.O.) as the room was lighted with lamp. Therefore, it is not possible that the 2 eye witnesses would have been able to clearly see as to who caused the injuries on the head of the deceased victim. The learned Amicus Curiae also submitted that PW 9 though stated in his examination in chief that the accused appellant came with an iron rod and hit twice on the deceased-victim, in hier cross examination she had stat