JUDGMENT :

SUMAN SHYAM, J.

1. Heard Mr. K. Goswami, learned Sr. counsel appearing in this case as amicus curiae. We have also heard Ms. B. Bhuyan, learned Sr. Counsel (Addl. P.P. Assam) appearing for the State. None has appeared for the informant.

2. Assailing the judgment and order dated 02-01-2019 passed by the learned Addl. District and Sessions Judge (FTC) No. 1, Margherita at Tinsukia in connection with Sessions Case No. 45(M)/2016 convicting the sole appellant under Section 302 of the IPC and sentencing him to undergo rigorous imprisonment for life and also to pay fine of Rs. 5,000/- in default, to undergo simple imprisonment for 06 months, the present appeal from jail has been preferred.

3. The appellant in this case was accused of causing death to his mother, viz. Indramaya Chetry on 16-10-2015 at around 10:00 a.m. by hacking her with a ‘dao’. Another son of the victim, viz. Prakash Chetry has lodged an ejahar before the Officer-in-Charge of the Lekhapani Police Station reporting the incident. Upon receipt of the ejahar, Lekhapani P.S. Case No. 142/2015 was registered on 16-10-2015 under Section 302 of the Indian Penal Code (IPC) and the matter was entrusted to Sub-Inspector of Police Sri Pratim Gogoi for carrying out investigation. On completion of the investigation, charge sheet was submitted against the appellant under Section 302 of the IPC. After committal of the case to the court of Sessions Judge (FTC) No 1, Margherita at Tinsukia, charge was framed by the learned trial court against the appellant/accused under Section 302 of the IPC and the same was read over and explained to the accused, to which, he had pleaded not guilty and claimed to be tried. As such, the appellant/accused was subjected to trial.

4. There is no eye witness to the occurrence. The case of the prosecution is based on the circumstantial evidence. In order to bring home charge the prosecution side had examined 11 (eleven) witnesses. After recording the evidence adduced by the prosecution, statement of the appellant/accused was recorded under Section 313 Cr.P.C. The case of the accused is one of total denial. However, the defense side did not adduce any evidence. On considering the evidence brought on record, the learned trial court has held that the charge brought against the accused under Section 302 of the IPC has been proved beyond reasonable doubt. The learned trial court had also observed that the statement of the witness PW-5 recorded under Section 164 Cr.P.C. though not exhibited or proved by the prosecution, was a corroborative piece of evidence and since the statement was available on record, judicial notice of the same was taken by the learned court below so as to convict the appellant. The learned trial court had also taken note of the confession made by the appellant before some of the witnesses in presence of the police by holding that such admission of guilt by the accused person would be relevant fact under Section 6 of the Evidence Act.

5. Assailing the impugned judgment Mr. Goswami, learned amicus curiae has argued that the statement of witness recorded under Section 164 Cr.P.C. is not a piece of substantive evidence and therefore, the same ought not to have been relied upon by the learned trial court for convicting the accused. In support of his above argument, Mr. Goswami has relied upon and referred to a decision of the High Court of Judicature at Madras rendered in the case of R. Murugesan vs. State, Rep. by the Inspector of Police, Mecheri Police Station, (2014) 5 RCR (Cri.) 125 (DB).

6. By referring to the evidence available on record the learned amicus curiae has further argued that the alleged confession of the accused made in presence of a Police Officer and during the course of investigation was not admissible in evidence in view of Sections 25/ 26 of the Indian Evidence Act. Notwithstanding the same, the learned court below had erroneously relied upon the alleged confession of the accused made in presence of the police. It