C.R. Sarma, J;— [1] The judgment and order, dated 30.08.2005, passed by the learned Additional Sessions Judge (Ad-hoc), F.T.C., Tinsukia, in Sessions Case No. 92(T)/2004 is in challenged in this appeal, filed by the appellant, from the jail. [2] By the impugned judgment and order, the learned Additional Sessions Judge convicted the appellant, namely, Shri Bijoy Teli, for the offence, under Section 302 of the Indian Penal Code (for short, the „IPC?) and sentenced him to suffer rigorous imprisonment for life and pay fine of Rs. 2,000/-(Rupees two hundred) only, in default, suffer rigorous imprisonment for another period of 3 (three) months. Aggrieved by the said conviction and sentence, the convicted person, as appellant, has come up with this appeal. [3] We have heard Mr. S. K. Medhi, learned Amicus Curiae, appearing for the appellant and Mr. K.A. Mazumdar, learned Public Prosecutor, appearing for the State respondent. [4] The prosecution case, in brief, is that, on the night of 07.02.2000, the appellant killed his mother, Smti Sunu Akash (in short the, “deceased). The elder brother of the appellant informed the police by filing FIR (Ext. 10). Upon receipt of the FIR, police registered a case, under Section 302 of the Indian Penal Code (hereinafter referred to as the “IPC”), vide G.D. Entry No. 115 dated 08.02.2000 and launched investigation into the matter. [5] During the investigation, police prepared inquest report (Ext. 1) of dead body of the deceased, forwarded the same for post mortem examination, arrested the appellant and examined the witnesses. At the close of the investigation, police submitted the charge sheet (Ext. 12) under Section 302 IPC. The case being committed to the Court of Sessions, the learned Sessions Judge framed charge under Section 302 IPC, to which the appellant pleaded not guilty and claimed to be tried. [6] In order to prove its case, the prosecution examined as many as 10 (ten) witnesses, including the Medical Officer (PW- 5), who performed the autopsy, the Judicial Magistrate (PW-9), who recorded the statement of the witnesses under Section 164 of the Criminal Procedure Code (in short, the Cr. P.C.”), and the Investigating Officer (PW- 10). At the close of the evidence for the prosecution, the accused person was examined under Section 313 Cr. P.C., he denied the allegations, brought against him and took the plea of alibi that, at the time of occurrence, he was in the market. P.C.”), and the Investigating Officer (PW- 10). At the close of the evidence for the prosecution, the accused person was examined under Section 313 Cr. P.C., he denied the allegations, brought against him and took the plea of alibi that, at the time of occurrence, he was in the market. He declined to adduce the defence evidence. [7] The learned Amicus Curiae, appearing for the appellant, has submitted that there is no sufficient cogent and reliable evidence to base the conviction and as such the learned trial Judge committed error by convicting and sentencing the appellant, as indicated above. [8] Referring to the evidence, on record and supporting the impugned judgment and order, the learned Addl. Public Prosecutor has submitted that there are sufficient evidence against the appellant and that the prosecution could establish the guilt of the accused appellant, beyond all reasonable doubt. Therefore, it is submitted that the impugned conviction and sentence needs no interference by this Court. [9] Having heard the learned counsel appearing for the parties and carefully perusing the material on record, we find that the informant, Shri Meghraj Teli (PW-1), who is the brother of the appellant and son of the deceased stated that the occurrence took place at about 10.00 p.m. According to this witness, he was informed by his another brother, namely Lale Teli (PW-6) that the appellant had strangulated, to death, his mother. From the evidence on record it is found the deceased used to live with the appellant. This witness, after getting the information about the incident, visited his mother’s house alongwith his father, Shri Bhudhan Lal Teli (PW-3). He also stated that he found the dead body of his mother covered with a Chadar. PW-1 further stated that he found the appellant sitting near the dead body and on being asked, the appellant told them that he had strangulated their mother. He further stated that they had tied the deceased with a rope and thereafter informed the garden chowkider, Shri Hari Prassad Tanti. He further stated that, in the morning, the appellant managed to free herself and ran away. He exhibited the statement, made by him under section 164 Cr.P.C., as Ext. No. 3 and his signature, there on, as Ext. No. 3 (1). He further stated that, in the morning, the appellant managed to free herself and ran away. He exhibited the statement, made by him under section 164 Cr.P.C., as Ext. No. 3 and his signature, there on, as Ext. No. 3 (1). Though this witness was examined, on behalf of the defence, no contradiction could be elicited to demolish his evidence that the appellant was found sitting near the dead body of the deceased and that the appellant had made extra confessional statement, admitting his guilt. As the PW –1 was the own brother of the appellant, there being nothing on record to show that he had any grudge or reason to falsely implicate his said brother, we have no reason to disbelieve his evidence. Therefore, as PW –1 appears to be a reliable and trustworthy person, his evidence that the appellant had made extra judicial confession cannot be discarded. Therefore, we are inclined to accept his evidence regarding extra judicial confession. The involvement of the appellant with regard to the murder of his mother is fortified by the circumstance that he was found sitting near the dead body and that he used to live with the deceased, who was his mother. [10] Shri Hari Prassad Tanti (PW-2) stated that he was informed by Shri Meghraj Teli (PW-1) that their brother i.e. the appellant had killed their mother. According to this witness, on being so informed, he went to the appellant’s house, wherein he found that the appellant was kept tied. He further stated that, before arrival of the police, the appellant got free and ran away. He was a witness to the inquest report, prepared by the Investigating Officer. He has exhibited the inquest report (Ext. 1) and his signature thereon as Ext. 1 (1). Despite the cross-examination, made on behalf of the defence, the evidence of PW 2 that he found the accused tied up in his house and that the dead body of the deceased was lying therein, remained unchallenged. [11] Shri Bhudhan Lal Teli, the father of the deceased deposing as PW 3, stated that the deceased was living with their another son, i.e., the appellant. Supporting the evidence of PW –1, this witness stated that, on the night of occurrence, his son Lale Teli (PW-6) went to his house and informed them that the deceased had passed away. [11] Shri Bhudhan Lal Teli, the father of the deceased deposing as PW 3, stated that the deceased was living with their another son, i.e., the appellant. Supporting the evidence of PW –1, this witness stated that, on the night of occurrence, his son Lale Teli (PW-6) went to his house and informed them that the deceased had passed away. According to this witness, on receipt of the information, they went to appellant’s house, wherein the deceased was found lying dead. He further stated that PW 1 tied up the appellant with a rope and that he had asked PW 1 to inform garden chowkider. Supporting the evidence of PW 2, he stated that he got the information from PW 1 (Mighraj Teli). Corroborating the evidence of PW Nos. 1 and 2, this witness also stated that, before arrival of the police, the appellant got himself free and fled the place. He was also a witness to the inquest report (Ext. 1), and he exhibited his signature, thereon, as Ext. 1(3). He denied the suggestion that his wife died due to illness. From the evidence of this witness, it is found that the appellant, at the relevant time, was living with the deceased and he found that the dead body of the deceased in the house immediately after the occurrence. [12] PW 4 Shri Ganesh Hajom was a witness to the inquest report. [13] Dr. Rituraj Chaliha, who performed the post mortem examination of the dead body of the deceased as PW 5. He found the following injuries in respect of the dead body. “1. External appearance. A female dead body of about 50 years wearing a blouse and a petticoat. Eyes and mouth are closed. Natural orifices are healthy. Rigor mortis present in both upper and lower limbs. Injuries. 1. Cresentic abrasion over the middle of neck; size 2 cm x 0.5 cm situated 7 cm above the supra starnal notch. 2. Cresentic abrasion on the left side of the neck; size 2 cm x 0.5 cm situated 8 cm above the clavicle. 3. Cresentic abrasion over the left side of the neck; size 2 cm x 0.5 cm situated 8 cm above the clavicle. 4. Cresentic abrasion on the right side of the neck; size 2 cm x 0.5 cm situated 2 cm below the angle of the mandible. 5. 3. Cresentic abrasion over the left side of the neck; size 2 cm x 0.5 cm situated 8 cm above the clavicle. 4. Cresentic abrasion on the right side of the neck; size 2 cm x 0.5 cm situated 2 cm below the angle of the mandible. 5. Cresentic abrasion on the right side of the neck; size 2 cm x 0.5 cm situated 4 cm below the lower boarder of mandible. 6. Liner abrasion size 3 cm x 0.25 cm situated on the right side on the neck 6 cm below the lower boarder of mandible. 7. Crescentic abrasion over the right supra clavicular region, size 2 cm x 0.5 cm situated 2 cm above the clavicle and 3 cm from midline. 8. Neck muscle and tissues are contused on both sides. 2. Thorax Larynx is congested. Fracture of hyoid bone on both sides. Rest of the thorasic organs are congested. 3. Abdomen- Abdominal organs are healthy. Stomach is healthy and empty. 4. Cranium and spinal canal. All the organs are healthy. Opinion: In my opinion the death is due to asphyxia due to and as a result of manual strangulation, which is homicidal in nature. Time since death 12-24 hours. Ext. 4 is the post mortem report and Ext. 4 (1) is my signature.” The said Medical Officer opined that the death of the deceased was caused due to asphyxia as a result of manual strangulation, which is homicidal in nature. In his cross-examination, the said doctor stated that abrasion might be caused by strangulation. [14] From the above medical evidence, it is found that there was fracture of hyoid bone on both sides and rest of the thoracic organs were found to be congested. It was also found that cranium and spinal organs were healthy. Though, the medical officer was cross-examined, on behalf of the deceased, no contradiction could be elicited in respect of the findings aforesaid. [15] From the above medical evidence, it is clear that the deceased died due to manual strangulation. Now question is who had caused the death of the deceased by manual strangulation? From the unconverted evidence, on record, it is found that at the relevant time, the deceased was living with the appellant in the same house. [16] Another son of the deceased, namely, Shri Lale Tali deposed as PW 6. Supporting the evidence of PW Nos. Now question is who had caused the death of the deceased by manual strangulation? From the unconverted evidence, on record, it is found that at the relevant time, the deceased was living with the appellant in the same house. [16] Another son of the deceased, namely, Shri Lale Tali deposed as PW 6. Supporting the evidence of PW Nos. 1 and 3, who were his brother and father respectively, he stated that the appellant, who used to live with the deceased came to his house and informed that their mother died. Accordingly, on being so informed, he went to the house of his brother Meghraj Tali (PW-1), who used to live with father (PW-3) and informed about the said incident. Both PW Nos. 1 and 3 stated that they were informed by PW-6 about the incident. Hence, there is corroboration in the evidence of PW Nos. 1, 3 and 6 to the effect that Lale Tali had informed PWs. 1 and 3. PW 6 was declared hostile and cross- examined. But no incriminating evidence could be elicited from his evidence. [17] Shri Bhudhan Teli (PW-3) was again examined as PW- 7. He stated that he got the information from Lale Teli and, after arriving in the place of occurrence, he found the appellant near the dead body of his mother. This time he was declared hostile and cross-examined, but no incriminating materials could be brought out from his cross-examination. 18] Smti Karam Singh Munda (PW 9) stated that she visited the place of occurrence and that she did not know as to who had killed the deceased i.e. Sunu Akash. [19] Mrs. S.P. Khound, Judicial Magistrate, who recorded the statement of witnesses, namely Shri Budhanlal Rajgiri, Lale Teli, Shri Hariprassad Tanti and Shri Meghraj under Section 164 Cr. P.C., has been examined as PW-9. He exhibited the said statements as Ext. Nos. 3, 5, 6 and 7. The Judicial Magistrate, who recorded the statement of the said witnesses, stated that witness Lale Tali, at the time of making his statement, stated that the appellant confessed before him that he had killed his mother. In his cross examination, the said Judicial Magistrate denied the suggestion that the thump impression appearing in the said statement did not belong to the witness. He also denied the suggestion that Lale Tali did not tell him about the confession made by the appellant. In his cross examination, the said Judicial Magistrate denied the suggestion that the thump impression appearing in the said statement did not belong to the witness. He also denied the suggestion that Lale Tali did not tell him about the confession made by the appellant. While giving evidence as PW 6 Lale Tali did not state that the appellant had confessed his guilt before him. Rather, he stated that the appellant, on the fateful night, visited his house and informed him that his mother died. This witness has not supported the prosecution version regarding extra judicial confession made by the appellant. The statement made under Section 164 Cr.P.C. can be used for contradicting a witness, who made such statement under Section 164 Cr. P.C. Such statement may be substantial evidence. Therefore, in view of the said stand taken by this witness it can’t be held that the appellant made confession before him. [20] From the evidence of the above-discussed witnesses, including PW 6 aforesaid, it has been found that the appellant and the deceased were living in the said house in which the deceased was found dead due to manual strangulation. As the appellant was living in the same house, excluding entry of any other person to the said house, at the relevant time, the involvement of the appellant cannot be ruled out. PW 1, who was the brother of the appellant clearly stated that the appellant had made extra judicial confession before him. [21] As discussed above, there is no record to show that PW 1 had any reason to falsely implicate his brother. The circumstance that the appellant was living with the deceased, in the same house, to the exclusion of any other person, at the time of occurrence, coupled with the medical evidence that the deceased died due to manual strangulation, fortify the evidence of PW 1 regarding the involvement of the appellant. Therefore, it is found that the prosecution could establish, that none other than the appellant was responsible for the death of the deceased. [22] In the case of Sawal Das vs. State of Bihar, reported in AIR 1974 SC 778 , it has been observed as follows: “Neither an application of Section 103 nor of 106 of the Evidence Act could, however, absolve the prosecution from the duty of discharging its general or primary burden of proving the prosecution case beyond reasonable doubt. [22] In the case of Sawal Das vs. State of Bihar, reported in AIR 1974 SC 778 , it has been observed as follows: “Neither an application of Section 103 nor of 106 of the Evidence Act could, however, absolve the prosecution from the duty of discharging its general or primary burden of proving the prosecution case beyond reasonable doubt. It is only when the prosecution has led evidence which, if believed, will sustain a conviction, or, which makes out a prima facie case, that the question arises of considering facts of which the burden of proof may lie upon the accused. The crucial question in the case before us is: Has the prosecution discharged its initial or general and primary burden of proving the guilt of the appellant beyond reasonable doubt?” [23] As discussed earlier, it has been found from the prosecution evidence, more particularly, from the evidence of PW 1, the involvement of the appellant has been established. Hence, it can be held that the prosecution could discharge its burden. If the evidence adduced by the prosecution is believed then the contradiction could be sustained. As the appellant was living with his mother, at the relevant time, it was within his knowledge as to how the deceased died. Hence, the natural presumption, that would follow, is that the appellant had caused the death of the deceased. Therefore, under the provision of Section 106 of the Evidence Act, the burden shifted to the appellant to explain as to under what circumstances the deceased died so as to prove his innocence. [24] Though the appellant, in his statement, made under Section 313 Cr. P.C., took the plea of alibi, by stating that, at the time of occurrence, he was in the market for purchasing shirt, no cogent evidence has been adduced in support of the said plea. Therefore, law is well settled that the accused person, who takes the plea of alibi, is required to substantiate the said plea. In the case at hand, there is not an iota of evidence in support of the said plea of the appellant. Therefore, law is well settled that the accused person, who takes the plea of alibi, is required to substantiate the said plea. In the case at hand, there is not an iota of evidence in support of the said plea of the appellant. Therefore, as the appellant failed to prove his plea or alibi or to explain the circumstances, in which the deceased died, the circumstantial evidences that he was living with the deceased in the same house, that the deceased died due to manual strangulation, sustaining several injuries and fracture of the hyoid bone, presence of the appellant near the dead body, coupled the un-demolished evidence of the PW 1, regarding extra judicial confession, forcefully lead to only conclusion that none other than the appellant caused the death of his mother by strangulation. There is nothing consistent with the innocence of the appellant. Therefore, in view of the above discussed evidence, we are inclined to hold that the prosecution could establish the charge, brought against the appellant, beyond all reasonable doubt. [25] In the light of above discussion, we are of the considered opinion that the learned trial Judge committed no error by recording the conviction and sentence, as indicated above. Accordingly, we maintain the impugned conviction and sentence. [26] The appeal fails. [27] Return the LCRs. [28] While appreciating the assistance, rendered by the learned Amicus Curiae, we direct that an amount of Rs. 5,000/- (Rupees five thousand) be paid to Mr. S.K. Medhi, learned Amicus Curiae, as remuneration by the State Legal Service Authority. _____________