JUDGMENT A.K. Goswami, J. 1. This criminal appeal is directed against the impugned judgment and order dated 31.8.05 passed by the learned Addl. Sessions Judge, Jorhat in Sessions Case No. 49(J-J)/05 convicting the accused Appellant under Section 302 IPC and sentencing him to suffer rigorous imprisonment for life and to pay fine of Rs.2,000/-, in default of payment of fine, rigorous imprisonment for another six months. The learned Sessions Judge also convicted the accused under Section 325 IPC and sentenced him to suffer rigorous imprisonment for three months and to pay fine of Rs.1,000/-, in default of payment of fine, rigorous imprisonment for another one month. 2. The prosecution case, in brief, is that on 12.7.08 one Dulu Tanti lodged an FIR stating that in the evening of 11.7.04 at around 8.00 p.m., his son, Shri Kamal Tanti, was killed by Shri Pinku Rabi Das by striking him in head with a sword from behind and left his dead body in the gate way of his house. He further stated in the said FIR that the accused had also inflicted stab injuries with a sword in the right hand of Sri Samaru Rabidas, who was with his son. He came to know about the occurrence in the morning hours at about 4/5 a.m. when the younger sister of Samaru Rabidas had informed him about the occurrence seeing the dead body of Kamal Tanti. On the basis of the aforesaid Ejahar, Pulibor PS Case No. 51/04 under Section 326/302 IPC was registered. 3. When the charge sheet was submitted against the accused Appellant under Section 302/325 IPC, the learned Magistrate committed the case to the court of learned Sessions Judge, Jorhat as the case was exclusively triable by the Court of Sessions and, accordingly, Sessions Case No. 49(J-J)/05 was registered. Learned Sessions Judge framed charge under Sections 302 and 325 IPC. The Appellant denied the charges and pleaded not guilty and claimed to be tried. 4. During the trial, prosecution examined 14 witnesses in all and the defence did not examine any witness. 5. PW 1, Shri Dulu Tanti, is the informant who deposed that he was informed by Smti. Rukmini Rabidas, PW 3 and the sister of the injured witness Samaru Rabidas, PW 2, that she had seen Kamal Tanti lying dead about 500 ft. away from their house. 5. PW 1, Shri Dulu Tanti, is the informant who deposed that he was informed by Smti. Rukmini Rabidas, PW 3 and the sister of the injured witness Samaru Rabidas, PW 2, that she had seen Kamal Tanti lying dead about 500 ft. away from their house. After receipt of the information, he had gone to the place of occurrence and subsequently lodged an Ejahar, Ext-1. He was also a witness to the inquest report, Ext-2. He further states that Samaru Rabidas had told him that the accused had killed his son and he had witnessed the occurrence. In cross-examination, he stated that he had seen the dead body of Kamal Tanti lying in front of the house of the accused person and he had met Samaru Rabidas on the following day of the occurrence at the hospital. 6. PW 2, Sri Samaru Rabidas, is the injured witness who had stated that he and Kamal Tanti had attended a marriage ceremony. After they had spent some time in the marriage function, Kamal had asked him to accompany to have a look at his house and accordingly, both of them had gone there. Subsequently, they again returned to the marriage place and when they had reached the house of the accused, the accused, who was lying in wait, appeared there all on a sudden and attempted to assault Kamal with an axe. He stated that he caught hold of the axe and at that point of time somebody dealt him a blow in his back whereupon he fell down. He had stated that the accused inflicted cut injuries near his right elbow with the axe. As the accused was chasing him, Kamal started running towards his house. He somehow reached his own house and his family members took him to the hospital where he came to know that Kamal had succumbed to his injuries. Though in examination-in-chief, he had stated that he had informed about the occurrence to the father of the deceased, in cross-examination he stated that he did not tell the police that he had told Dulu Tanti about the occurrence. It also appears from his cross-examination that he had informed about the incident at around 2.00 a.m. to his younger sister, PW 3. He had also indicated that the accused had a quarrel with the deceased about three months prior to the incident. 7. PW 3, Smti. It also appears from his cross-examination that he had informed about the incident at around 2.00 a.m. to his younger sister, PW 3. He had also indicated that the accused had a quarrel with the deceased about three months prior to the incident. 7. PW 3, Smti. Rukmini Rabidas, as has been indicated earlier, is the younger sister of PW 2. According to her at about 10.30 p.m., some body had knocked at the door of their residence and after opening the door, they saw Samaru lying there in a state unable to speak. His hand was smeared with blood and thereafter, he was rushed to the garden hospital in the night itself. He stated to have informed her that the accused inflicted injury on him and Kamal, who was with him, had fled away from the place. She found Kamal lying dead while returning from the hospital in the morning and accordingly informed about the same to PW 1. In her cross-examination, she stated that Samaru had not stated anything about the incident at home and he informed about the incident for the first time in the hospital only. Samaru told her that he had also sustained injuries in his back. When she discovered the dead body of Kamal, there was nobody with her. 8. P Ws 4, 5, 6 and 7, namely, Sri Paramatma Goswami, Smti. Nimni Tanti, Sri Mohan Tanti and Sri Suben Turi, respectively, had, either on being informed or after hearing the wailing of the parents of Kamal, come to the place of occurrence and had seen Kamal lying dead. They, in that sense, did not significantly further the prosecution case. 9. PW 8, Dr. George Boscodhan, is the Doctor who had treated PW 2 in the garden hospital and according to him there was a "compound fracture of ulna, right elbow joint", which according to him was caused by a blunt weapon and was grievous in nature. He had submitted his injury report, Ext-4 to the Officer-in-Charge, Pulibor Police Station. 10. PW 9, Dr. Amal Phukan, is the Doctor who had conducted post-mortem examination and he had found the following injuries: A lacerated injury on the right side of the head, 7 c.m. x 6 c.m. with fracture of the right parietal bone was found. There was laceration on the left side of the membrane and intracerebral hemorrhage was present. 10. PW 9, Dr. Amal Phukan, is the Doctor who had conducted post-mortem examination and he had found the following injuries: A lacerated injury on the right side of the head, 7 c.m. x 6 c.m. with fracture of the right parietal bone was found. There was laceration on the left side of the membrane and intracerebral hemorrhage was present. His opinion was that death was caused due to injuries sustained on the head, which, according to him, is sufficient in ordinary course to cause death of the deceased. 11. PW 10, Sri Budhin Pegu, was the Investigating Officer (I.O.). He had seized a piece of bamboo as led and shown by the accused. He stated that the accused had surrendered in the police station. He, however, stated that he was not the officer who had submitted the charge sheet as he was transferred in the meantime. He deposed that one Sri Nidarul Islam submitted the charge sheet against the accused under Section 326/302 IPC. In cross-examination, he stated that he did not record the statement of the accused leading to discovery and that the accused had shown the lathi to him inside the house. According to him, the type of the article seized vide Ext-5, is commonly available in all rural households. 12. PW 11, Sri Sanjoy Goswami, is a witness to the seizure list, Ext-5. He, in his cross-examination, stated that he did not enter the house with the police when the lathi was produced by the accused. 13. PW 12, Sri Mansa Gorh, who is also a witness to the seizure list, Ext-5, stated that he did not see where from the police had brought out the lathi. 14. PW 13, Sri Birsa Gorh, is witness to the inquest report, Ext-2 and PW 14 is the Investigating Officer who had submitted the charge sheet after collecting the post-mortem report and the injury report of PW 2. 15. The accused was examined under Section 313 Code of Criminal Procedure In such examination, he denied to have given any lathi to the police and also denied his involvement in the incident stating that he had been falsely implicated out of grudge. 16. We have heard Mr. P. Mahanta, learned Amicus Curiae on behalf of the Appellant and Mr. Dhanesh Das, learned Addl. Public Prosecutor for the State of Assam. 17. 16. We have heard Mr. P. Mahanta, learned Amicus Curiae on behalf of the Appellant and Mr. Dhanesh Das, learned Addl. Public Prosecutor for the State of Assam. 17. Learned Amicus Curiae has submitted that the conviction of the accused Appellant, on the bass of the evidence adduced by the prosecution, under Section 302 IPC is wholly not tenable. According to him, in the FIR the weapon of assault was described as a sword whereas PW 2 stated that the accused had tried to assault the deceased with an axe. Police, on the other hand, had seized a bamboo lathi as the weapon of offence. Learned Counsel argued that given the nature of the injuries sustained by PW 2, which is a compound fracture of ulna below the right elbow joint, which, according to Doctor, is caused by a blunt weapon, it is not understood as to how his hand was smeared with blood as deposed by PW 3. Learned Counsel submits that it would appear that PW 2 did not immediately inform the name of the assailants but disclosed the same much later in the hospital. According to learned Counsel, PW 2 did not see the actual incident of the accused killing the deceased and the circumstantial evidence as portrayed by the prosecution, does not lead to a chain of events which conclusively point to the guilt of the accused Appellant. Learned Counsel places reliance in a judgment reported in (2009) 14 SCC 213 (State of Uttar Pradesh v. Rama Kant and Ors.) to substantiate that in view of the circumstances touching upon the credibility of the prosecution witnesses, the accused is entitled to an acquittal. 18. The learned Addl. Public Prosecutor, however, on the basis of the materials on record, supports the impugned judgment of the learned trial court. According to him, even though it may be conceded that PW 2 might not have seen the actual assault by the accused on the deceased, he had clearly deposed the deceased being chased by the accused. The dead body of the deceased was also recovered in front of house of the accused after a few hours. This leads to the only inference that it was the accused who had caused the death of the deceased. The dead body of the deceased was also recovered in front of house of the accused after a few hours. This leads to the only inference that it was the accused who had caused the death of the deceased. He submits that it is quite possible that the blunt side of the axe may have hit the elbow of PW 2 resulting in fracture as well as some bleeding. He also argued that there can be no reason as to why PW 2, who also sustained injuries, should be disbelieved. 19. On the basis of the materials on record and more importantly, on the evidence of PW 2, it cannot be said that PW 2 was an eye witness, so far it related to the murder of Kamal. It is important to note that PW 2 had in categorical terms deposed that he had caught hold of the axe which was wielded by the accused. Obviously, the assailant in the aforesaid scenario would be in his front. What is most significant about his evidence and which has been overlooked, is that he had deposed that while he was catching hold of the axe, some one had dealt him a blow in his back as a result of which he fell down. This would indicate the presence of one more person in the place of occurrence who had given him a blow in his back. PW 2 had stated that the accused was lying in wait for them in front of his own house. It is his version that after he had fallen down, he saw Kamal running towards his house and the accused chasing him. The sketch map identifies the location of the house of the accused as well as the house of the deceased. The dead body was, however, lying just opposite to the gate of the house of the accused. There is no dispute with regard to the fact that that is where the dead body was found. P Ws 1, 4, 5, 6, 7 and 8 have all deposed that the dead body was lying in from of the house of the accused. PW 1 had indicated that Kamal was found lying dead about 500 feet away from his house. He had also deposed in his cross-examination that the house of the PW 3 is about a furlong away from his house. 20. PW 1 had indicated that Kamal was found lying dead about 500 feet away from his house. He had also deposed in his cross-examination that the house of the PW 3 is about a furlong away from his house. 20. PW 8 had indicated that the injury sustained by PW 2 can be caused due to fall in hard substance. However, we are inclined to accept the submission of learned Addl. Public Prosecutor that the axe could have caused the fracture injury of PW 2. 21. We cannot rule out, because of what has been stated by us in the preceding paragraphs, the presence of one more person other than Kamal, PW 2 and the deceased, if not more. Dead body was recovered just opposite to the house of the accused and not away from the house of the accused. There is no time of death recorded either. In these circumstances, though PW 2 had stated that that he had seen the accused last in point of time before the dead body of Kamal was recovered, in our considered view, in the facts and circumstances of the case, we cannot lay the basis for conviction of the accused on the basis of the evidence of PW 2. 22. In view of the aforesaid, we do not feel safe to convict the accused Appellant under Section302 IPC. However, we maintain the conviction of the accused under Section 325 IPC. He has already served the sentence awarded by the learned trial court for his conviction under Section 325IPC. Accordingly, we partly allow this appeal. The accused is entitled to be released forthwith. 23. For the services rendered, the Assam State Legal Services Authority will remunerate the learned Amicus Curiae to the extent of Rs.5,000/-. 24. Send down the LC Rs forthwith. 25. Let a free copy of the judgment be made available to the Appellant.