JUDGMENT :

M. Zothankhuma, J.

Heard Mr. N.J. Das, learned Amicus Curiae and Ms. B. Bhuyan, learned Additional Public Prosecutor appearing for the State respondent.

2. This appeal has been filed against the judgment and order dated 23.09.2019 passed by the learned Additional Sessions Judge, Sonitpur, Tezpur in Sessions Case No. 64/2014, by which the appellant has been convicted under Section 302 of the IPC and sentenced to undergo life imprisonment with a fine of Rs.5,000/-, in default rigorous imprisonment for 3 (three) months.

3. The prosecution case in brief is that the wife of the deceased submitted an FIR on 05.09.2010 stating that at around 3:30 pm, the appellant, Moina Das had waylaid the informant’s husband (deceased) and dealt blows on him with a dao causing injuries. The deceased was taken to the Kanaklata Civil Hospital, Tezpur where he succumbed to his injuries at 7:00 pm on the same day.

4. Based on the FIR, Tezpur P.S. Case No. 829/2010, under Section 341/326/307/302 of the IPC was registered on 05.09.2010. After conclusion of the investigation, charge-sheet was filed against the appellant, as a primafacie case under Sections 326/307/302 of the IPC was found against him.

5. Three charges were framed by the learned Trial Court against the appellant under Sections 326/307/302 of the IPC, to which the appellant pleaded not guilty and prayed for trial. During the trial proceedings, 7 (seven) Prosecution witnesses were examined. Thereafter, the appellant was examined under Section 313 of the Cr.P.C, wherein he took a stand that a false case had been filed against him.

6. The learned Trial Court thereafter having come to a finding that the appellant was guilty of the offence under Section 302 IPC, convicted him and sentenced him to undergo life imprisonment with a fine of Rs.5,000/-, in default rigorous imprisonment for 3 (three) months.

7. The learned Amicus Curiae submits that the evidence of PW-1, Smt. Maina Das is to the effect that she saw her husband lying under a tree at the gateway to her house with cut injuries on the neck, chest and hands. She also saw the appellant running away with a dao in his hand and when she reached her husband, she saw two persons, namely, Mun Das and Krishna Das, who were helping her husband drink water. Though the PW-1’s evidence is to the effect that she was told by her daughter that the appellant had cut her husband, her daughter was not been made a Prosecution witness by the prosecution and as such, the daughter has not been examined by the learned Trial Court. He also submits that the evidence of PW-2, who is the son of the deceased is to the effect that his deceased father had told him “Moina has cut me and fled away. What are you doing?” He submits that PW-1 could not have been with the deceased at the place of occurrence simultaneously, as PW-1 had stated that there was no person near her when her husband told her “Maina I will die.”

8. The learned Amicus Curiae also submits that though the PW-1 had stated in her evidence that Mun Das and Krishna Das were helping her husband to drink water, the evidence of PW-3, who is the eye witness, does not speak of the presence of Mun Das and Krishna Das at the place of occurrence. He also submits that Mun Das and Krishna Das were not made prosecution witnesses by the Police and as such, they were not examined by the court. He accordingly submits that the omission of the presence of Mun Das and Krishna Das in the evidence adduced by PW-3, shows that PW3 was not an eye witness to the occurrence.

9. The learned Amicus Curiae also submits that the evidence of PW-5, who is an eye witness cannot be believed, as the evidence of PW-5 shows that she had poor eye sight. Accordingly, she could not have seen the incident. Further, though PW-5 has stated in her evidence that the incident took place on the road in front of her house, the I.O.’s sketch map of the place of occurrence does not show the house of PW-5. As such, in all probability, PW-5 did not see th