The conviction of an accused cannot solely rely on admissions made under Section 313 Cr.P.C without corroborating evidence linking the weapon to the crime.

JUDGMENT :

MICHAEL ZOTHANKHUMA, J.

1. Heard Mr. A. Ahmed, learned Amicus Curiae appearing for the appellant. Also heard Ms. A. Begum, learned Additional Public Prosecutor appearing for the State respondent.

2. The appellant has put to challenge the impugned judgment dated 04.04.2022 passed by the learned Additional Sessions Judge, Goalpara, in Sessions Case No. 114/2029, by which the appellant has been convicted under Section 302 of the IPC for having killed his friend with an axe.

3. Mr. A. Ahmed, learned Amicus Curiae appearing for the appellant, submits that the learned Trial Court could not have convicted the appellant, as it has not been proved that the axe that had been seized by the police was the weapon used for committing crime in question. He submits that though the axe had been seized by the police and the same was sent to the FSL for forensic examination, there was no proof that the blood stain found on the axe belonged to that of the deceased. As such, there was no proof that the axe was the weapon used in the crime. In this respect, he relies upon the Division Bench Judgment of this Court in the case of Anil Nath Vs. State of Assam reported in 2018 (1) GLT 579. He further submits that the evidence of the doctor was to the effect that in his opinion the injury on the head of the deceased could also have been caused by a tree falling on the head of the deceased.

4. Mr. A. Ahmed, learned Amicus Curiae for the appellant, thus submits that when the foundational facts have not been proved by the prosecution regarding the appellant being the cause of death of the deceased, the conviction of the appellant under Section 302 of the IPC was not sustainable. He also submits that the conviction of the appellant has been made on the basis of the admission given by the appellant in his examination under Section 313 of the Cr.P.C., wherein he admitted to killing the deceased with the axe. He submits that in terms of the Supreme Court in the case of Mohan Singh Vs. Prem Singh and Anr. reported in (2002) 10 SCC 236 and in the case of Ashok Kumar Vs. State of Haryana reported in (2010) 12 SCC 350 , conviction of an accused cannot be based merely on the statement made by an accused under Section 313 of the Cr.P.C, as it is not substantive evidence. He accordingly submits that the impugned judgment should be set aside and the appellant should be acquitted of the charge under Section 302 of the IPC.

5. Mr. A. Ahmed, learned Amicus Curiae for the appellant, in the alternative prays that as the evidence also indicates that a sudden quarrel had erupted between the two friends after drinking, the intention of the appellant to kill was not made out. There could also have been no premeditation, as the friends had been drinking together as a few moments prior to the crime being committed. As such, the appellant could at best be convicted under Section 304 Part II of the IPC.

6. Ms. A. Begum, learned Additional Public Prosecutor appearing for the State respondent, on the other hand submits that the axe has been proved to be the weapon of the crime. She further submits that the evidence of PW-5, which has been corroborated by the explanation given by the appellant in his examination under Section 313 of the Cr.P.C., proved that the appellant had used the axe, which was seized from him, for hitting the head of the deceased. As such, the c