JUDGMENT :

1. Heard Mr. B.M Choudhury, learned counsel for the appellant. Also heard Mr. D Das, learned Addl. PP, Assam.

2. The present appeal is directed against the judgment and order dated 21.01.2012 passed by the learned Additional Sessions Judge, Jorhat in Sessions case No.80(J-J)/2005, convicting the accused appellant for offence under sections 307 IPC and sentencing him to suffer simple imprisonment for 5 (five) years and further directed to pay compensation of Rs.20,000 to be given to the victim and in default of payment of compensation to undergo further SI for another 6 months.

3. The prosecution case, in a nutshell is that the younger brother of the informant (the victim) had been residing in a rented house of accused appellant Kamal Baruah. On the previous night of the lodging of the FIR, the son of the accused informed him that the younger brother of the informant has been lying in their bathroom in an injured condition. On being informed, the informant rushed to the accused person’s house and found that the said house is crowded by police officials and neighboring people. The informant further alleged that he also noticed the police personal shifting the injured lifting him in a vehicle to Civil Hospital, Jorhat. He saw the injured was shouting in pain and noticed burn injures on different parts of his body. He also scented smell of kerosene oil from the body of his injured brother. According to the informant as narrated in the FIR that the victim brother had informed the informant that accused Kamal Baruah had poured kerosene oil on his body and set him ablaze. He further narrated in the FIR that he found the right hand of Joy Hazarika being tied with one plastic rope of red colour that got attached with the burnt portion.

4. On the basis of such FIR the investigation was launched and finally, after completion of the investigation charge sheet under section 342/326/307 IPC was filed against the accused appellant and he was sent for trial. Thereafter, the committal court committed the matter to the learned Sessions Judge Jorhat who in turn entrusted the trial to the Additional Sessions Judge, Jorhat. Thereafter, by an order dated 22.09.2005 charges under section 342/307 IPC was framed. The same was read over and explained to the accused, to which the accused had pleaded not guilty and claimed to be tried.

5. To bring home the charges framed against the appellant, the prosecution has examined as many as 11 witnesses. After examination of the witnesses, the accused was examined under section 313 Cr.P.C., in which the accused denied the allegations and laid four defence witnesses.

6. PW-1 and PW-2, are the seizure witness of exhibit 1 whereby a piece of plastic rope, one gamosa and one match box were seized, PW-9, PW-10 are hospital staff and seizure witnesses who exhibit – 3 whereby the rope tied in the hand of the victim, his wearing pant and underwear were seized. PW-3 & the informant, elder brother of the victim, PW-4 is the injured victim, PW-5, PW-6 and PW-7 are the neighbouring people, PW-8 is the doctor who treated the injured victim. PW-11 is the Investigating Officer.

7. The vital witnesses for the prosecution were PW-4, the victim injured himself, the doctor PW-8 and the seizure witnesses. Before determining the correctness of the judgment impugned in the present appeal, let this court first look into the deposition of the witnesses.

I. PW-1 is a seizure witness of plastic rope one gamosa and one match box. He deposed that he learnt that the tenant of Kamal Baruah got burnt and has been taken to hospital. Around 10 PM in the night the police visited the residence of the accused and asked the PW-1 to be witness and informed the PW-1 that one piece of plastic rope, one gamusa and one match box has been found in the residence of the accused appellant and were shown to the PW-1 and took signature in the seizure list. PW-1 proved his signature in the seizure list as exhibit-1(1) and the rope gamusa and match box as K(