AMITAVA ROY, J.

(1.) The appellant being aggrieved by his conviction under Section 302 of the Indian Penal Code (hereafter for short referred to as the Code), by the judgment and order dated 19.05.2004 passed by the learned Sessions Judge, Goalpara in Sessions Case No. 39/2002, thereby, sentencing him to suffer imprisonment for life and to pay a fine of Rs. 5,000/-, in default to undergo rigorous imprisonment for another three months, is in appeal for redress.

(2.) We have heard Mr. B.B. Narzary, Senior Advocate assisted by Mr. P.K. Brahma, Advocate for the accused-appellant and Mr. K.A. Mazumdar, learned Public Prosecutor, Assam.

(3.) On a FIR dated 27.11.2001 lodged with the Officer-in-Charge, Dhupdhara Police Station, by one Md. Rashul Ali, alleged that at about 6 p.m. in the evening on the previous day i.e. 26.11.2001, the accused-appellant had assaulted his father with a bamboo lathi, as a result whereof, he died. The FIR disclosed that the deceased before the incident had reached home in an intoxicated state and resorted to nuisance. It also mentioned about a confession made by the accused-appellant before the public about the assault made by him on his father. Dhupdhara P.S. Case No. 66/2001, under Section 302 of the Code was registered and on the completion of the investigation, a charge sheet was laid against the accused-appellant. The learned trial Court framed charge against him under the aforementioned provision of the Code, to which he pleaded not guilty. The prosecution examined eight witnesses, including the Investigating Officer and the Doctor, who performed the post mortem examination. The defence did not examine any witness. The statement of the accused-appellant under Section 313 of the Cr.P.C. was recorded, and thereafter the learned trial Court convicted and sentenced him as above.

(4.) Mr. Narzary has argued that there being no evidence worthwhile in support of the charge, the prosecution had miserably failed to prove the same and thus the impugned judgment and order, if allowed to stand, would be a travesty of justice. In his bid to endorse the above, the learned senior counsel, has taken us through the evidence of the prosecution witnesses in full. According to him, as there is no trace of legally cognizable evidence establishing a nexus between the accused-appellant and the offence alleged, his conviction and sentence ought to be interfered with in the interest of justice.

(5.) Mr. Mazumdar, in reply, has argued that the evidence of PW 5, Alimuddin Sheikh read with that of the medical witness demonstrates that the accused-appellant had been the assailant causing deadly injuries to which the deceased had succumbed and that therefore, the impugned judgment and order ought to not be interfered with.

(6.) To appropriately appreciate the rival submissions it is indispensable to refer to the evidence in brief.

PW 1, Mst. Rahima Bibi, is the wife of the deceased. According to her, on the date of the occurrence, he (deceased) had returned home in an intoxicated state and under the influence of alcohol, he attempted to outrage the modesty of his daughter-in-law and as in the process he ran after her, he fell down and got injuried and, eventually, expired.

(7.) PW 2, Md. Rashul Ali stated on oath that the time of the occurrence he was not present in the house and came to know about the incident as told to him by his mother, Mst. Rohima Bibi (PW 1) in the above lines. He, however, proved the FIR as Ext. 1 with his signature thereon vide Ext.1 (1).

(8.) PW 3, Md. Rahul Amin Sheikh, is also not an eye witness to the incident.

(9.) PW 4, Matior Rahman, stated that he heard about the death of the accused-appellant while he was offering his prayers in the Mosque and that thereafter he went to the place of the occurrence and found the dead body lying in the house of the accused-appellant. He proved the inquest report vide Ext. 3 with his signature thereon, Ext. 3(1). All these witnesses were declared hostile by the prosecution and were cross-examined, and in the process they were confronted with the statements made to the police in course of the investigation, seeking thereby to establish that their versions at the trial were totally different from those made then.

(10.) PW 5, Alimuddin Sheikh, testified that at the time of the occurrence he was in his house and was told thereat that the accused-appellant had killed his father. He then went to the house of the accused-appellant and found the dead body of his father lying there. This witness stated that he was told by the accused-appellant that he had killed his father. He also proved the inquest report as Ext. 3, as well as the seizure of a lathi from the house of the accused-appellant vide Ext. 2 with his signature thereon, Ext. 2(1).

In cross-examination, this witness reiterated the confession made by the accused-appellant to him to the effect that he had killed his father as the latter used to torture his wife. He, however, denied to have disclosed that confession to the Investigating Officer.

(11.) PW 6, Md. Rahim Ali, son of the deceased is also not an eye witness and stated that he was not present at the place of occurrence at the time of the occurrence.

(12.) PW 7, Dr. Neelmani Dutta, who performed the autopsy on the dead body on 28.11.2000 disclosed to have found the following injury:-

"There is a fracture of the frontal bone at the point of vertex. Haemotoma inside the cranium."

According to him, the injuries were antemortem in nature and were caused by blunt and heavy object. In cross-examination, he admitted that the same could be caused due to fall on timber, firewood or other hard substance.

(13.) PW 8, Shri Himangshu Das, the Investigating Officer stated about the steps taken by him in course of the investigation and also proved some statements with reference to his diary.

(14.) To start with, the FIR was lodged by Rashul Ali (PW 2), who at the trial, apparently retraced from the version as contained therein. PW 1, PW 2, PW 3 and PW 4 as well, did not state on oath about the involvement of the accused-appellant in any assault, resulting in injuries to his father leading to his death. Though, PW 5, Alimuddin Sheikh, in his testimony referred to an extra-judicial confession made to him by the accused-appellant, he admitted of not having disclosed the same to the Investigating Officer. PW 6, Md. Rahim Ali, as noticed hereinabove, is also not an eye witness.

(15.) Though, the evidence of PW 5, vis-a-vis the extra-judicial confession of the accused-appellant is the only trace of proof of the accused-appellant of his involvement in the offence, the same being not supported by any other witness as noticed hereinabove, coupled with his omission to mention about the same before the Investigating Officer, makes it unsafe to record any conviction on the basis thereof. The evidence of the medical witness to the effect that the injures sustained by the deceased could have been caused also by a fall on any hard substance, is inconformity with the evidence in cheif of PW Nos. 1, 2, 3 and 4. Though, it appears that at the first instance, these witnesses had implicated the accused-appellant in the commission of offence, having regard to their statement on oath at the trial and the other materials on record, we do not find adequate materials to sustain the conviction of the accused-appellant vis-a-vis the charge laid against him.

(16.) We have perused the judgment and order under appeal and for the reasons cited hereinabove, we cannot agree with the ultimate conclusions recorded therein. In the result, the appeal is allowed. The judgment and order dated 19.05.2004 passed by the learned Sessions Judge. Goalpara in Sessions Case No. 39/2002 is hereby interfered with. The accused-appellant is ordered to set at liberty forthwith.