JUDGMENT :

M. Zothankhuma, J.

Heard Mr. U. Choudhury, learned Legal Aid Counsel for the appellant. Also heard Ms. B. Bhuyan, learned Additional Public Prosecutor assisted by Mr. J. Das, Advocate for the State.

2. This appeal has been filed against the Judgment & Order dated 09.01.2020 passed by the learned Additional Sessions Judge (FTC), Dibrugarh in Sessions Case No. 374/2013, by which the appellant has been convicted under Section 302 IPC and sentenced to undergo imprisonment for life, along with a fine of Rs.20,000/-, in default, to undergo Simple Imprisonment for 6 (six) months.

3. The Prosecution case in brief is that the informant (father of the deceased) submitted an FIR dated 14.01.2013 to the In-charge, Amulapatty Police Outpost, Dibrugarh stating that at about 10:30 p.m. while his son Jitendra Rajak was coming from his shop with his friends viz. Raju Mahto (P.W. No.6), Muna Rajak (P.W. No.3) and Sumit Rajak (P.W. No.2), the appellant Aziz Ali along with two unknown associates attacked his son with deadly weapons viz. Iron Rod and Dagger and stabbed him three times in the belly, due to which he was admitted in the Assam Medical College and Hospital. Pursuant to the FIR, Dibrugarh P.S. Case No.45/2013 under Sections 341/326/506/307/34 IPC was registered on 14.01.2013. The informant’s son expired on 15.01.2013.

4. After investigation was carried out and charge-sheet filed, the learned Trial Court framed a charge under Section 302 IPC against the appellant. The appellant pleaded not guilty and claimed trial.

5. In the trial proceedings before the learned Trial Court, 13 (thirteen) Prosecution witnesses were examined. After the appellant was examined under Section 313 Cr.P.C., the learned Trial Court came to a finding that the appellant was guilty of the offence under Section 302 IPC and was accordingly convicted under Section 302 IPC, vide the impugned Judgment and Order dated 09.01.2020 in Sessions Case No. 374/2013.

6. The learned Counsel for the appellant submits that the statement of facts provided in the FIR dated 14.01.2013 contradicts the evidence given by the informant (P.W. No.1) during cross-examination and as such, the evidence of P.W. No.1 could not have been considered by the learned Trial Court for convicting the appellant. He submits that in the cross-examination, the informant (P.W. No.1) had stated that he did not know who lodged the FIR or the contents of the FIR. He also submits that while the informant in his FIR had stated that P.W. No.2, P.W. No.3 and P.W. No.6 were walking along with his deceased son at the time of occurrence, in his cross-examination, P.W. No.1 has stated that there was none at the time of occurrence, except the informant and his deceased son.

7. The learned Counsel for the appellant submits that the evidence of P.W. No.10, is to the effect that P.W. 10, P.W. No.2 and P.W. No.3 and others were having a feast in the paddy field near his house and that they came out on the road, only after being told by one Babu, that the appellant had assaulted the deceased. He submits that the above goes to show that P.W. No.2 and P.W. No.3 were not walking with the deceased at the time of occurrence of the incident as stated in the FIR. He further submits that while P.W. No.2 and P.W. No.3 had denied the suggestion that the street lights were not ON, on that particular night, the sketch-map of the place of occurrence does not show any street lights. He thus submits that the incident could not have been seen by P.W. No.2 and P.W. No.3 at night, in the absence of any street lights as per the sketch-map. Further, distance of the P.W. No.3 being around 50 to 60 metres from the place of occurrence, P.W. No.3 could not have seen the incident.

8. The learned Counsel for the appellant submits that while the witnesses have stated that they saw the appellant stabbing the deceased in his belly, the doctor’s report shows that the injuries sustained by the deceased pertained only to the chest and back area and not to