JUDGMENT A.H. Saikia, J. 1. The learned Additional Sessions Judge, Nagaon by his judgment and Order dated 20.4.2002 passed in Sessions case No. 86(N)/87 convicted all the four Appellants herein under Sections 302/34 IPC and sentenced them to rigorous imprisonment for life and also to pay fine of Rs. 1,000/- each, in default, further rigorous imprisonment for one year each. Further, he found the Appellants No. 1, 3 and 4, namely, Samiruddin @ Samu, Kasem Ali and Soleman Ali respectively guilty of offences under Sections 323/34 IPC and sentenced them to suffer rigorous imprisonment for one year each directing that all sentences would run concurrently. These convictions and sentences have been preciously assailed in this criminal appeal. 2. Facts necessary to dispose of this appeal are re-capsulated as under: 3. P.W. 2, Momtaz Ali on 30.1.87 lodged a complaint with Rupahihat Police Station alleging that on that date at about 7.00 a.m. in the morning while he demanded old dues from Appellant No. 3, Kasem Ali, an altercation took place with him. At that time the Appellant No. 1 Samiruddin @ Samu detained his elder brother Sohrab Ali (since deceased) by holding him and Appellant No. 2 Nausad Ali @ Nasu killed him by stabbing him in his back with a dagger. Both the Appellant No. 2, Nasu and Appellant No. 3 Kasem Ali had also assailed him. On hearing the hue and cry, the people from the neighbourhood converged at the place of occurrence and witnessed the entire incident. P.W. 2, the informant saved his life by running away from the place of occurrence as the Appellants were about to kill him. 4. Law was put in motion and the police on the basis of the FIR abovementioned, proceeded with the investigation of the case against all the four Appellants. After completion of the investigation, police submitted the chargesheet against all of them under Sections 302/323/34 IPC. 5. On commitment, the learned Additional Sessions Judge, Nagaon framed charges against all the four Appellants under Sections 302/34 IPC as well as Sections 323/34 IPC. The charges were read over and explained to the accused/Appellants to which they pleaded not guilty and claimed to be tried. 6. The prosecution to ground the charges, examined as many as 12 witnesses including P.W. 1, Nasiruddin, P.W. 2, Momtaz Ali, P.W. 4, Akbar Ali, P.W. 5 Mustt. The charges were read over and explained to the accused/Appellants to which they pleaded not guilty and claimed to be tried. 6. The prosecution to ground the charges, examined as many as 12 witnesses including P.W. 1, Nasiruddin, P.W. 2, Momtaz Ali, P.W. 4, Akbar Ali, P.W. 5 Mustt. Malikjan Bibi and P.W. 10 Mohar Ali as eye-witnesses as well as P.W. 6, Dr. A.C. Talukdar who conducted post-mortem on the dead body of the deceased, Sohrab Ali. The defence to shall the charges examined one witness. 7. The learned Judge upon consideration of the material evidence on record and having heard learned Counsel for the parties held the Appellants guilty of the aforesaid offences and sentenced them accordingly, as already noted above. 8. Heard Mr. J.M. Choudhury, learned Senior Counsel assisted by Mr. B.M. Choudhury, learned Counsel for the Appellants and Mr. D. Das, learned Public Prosecutor, Assam for the opposite party. 9. For the purpose of determining the legality and correctness of the impugned conviction and sentence, a discussion on evidence of the witnesses becomes necessary and accordingly, we now proceed for proper appreciation and appraisal of the evidence of the witnesses, especially, ocular testimony and medical evidence. 10. P.W. 1, Md. Nasiruddin, the son of the deceased, aged about 12 years at the time of commission of the alleged offence, in his evidence as eye-witness, deposed that at the time of occurrence which took place in and around 8.00 a.m. in the morning, while he was at home, his father asked his mother for morning tea. Hearing hue and cry, his father proceeded towards the house of P.W 4, Akbar Ali and this witness also followed his father towards P.W. 4's house. His father asked the accused/Appellants Samiruddin, Kasem and Soleman not to quarrel with his paternal uncle Momtaz Ali, P.W. 2. But then the accused person assailed his uncle with Lathi. His father intervened and at that relevant time the accused Nausad arrived thereon in a by-cycle and stabbed his father in the back side with a knife. His father fell down sustaining injury. His father bled. By this time accused/Appellants left and his father was taken to the hospital who died before he reached the Nagaon Civil Hospital. In cross, this witness stated that on reaching the place of occurrence he found his father lying injured. His father fell down sustaining injury. His father bled. By this time accused/Appellants left and his father was taken to the hospital who died before he reached the Nagaon Civil Hospital. In cross, this witness stated that on reaching the place of occurrence he found his father lying injured. He denied the suggestion that Nausad had not stabbed his father with a knife and he had not seen the person who stabbed his father. He stated that he was not tutored and when Nausad took the cycle the villagers were present. He also stated that Mumtaz P.W. 2, his uncle had a dispute with Kasem Ali, accused/Appellant No. 3 for a price of fish at Beltal Bazar as he had not paid the remaining money till date. The quarrel took place at P.W. 4's house. 11. P.W. 2, Momtaz Ali, being the informant and injured eye witness in the assault, categorically testified that around 7.00 a.m. in the morning on the date of occurrence while he came out from his house by a by-cycle accompanied by one Kasem Ali, not being the accused Appellant, riding on one by-cycle, he saw three accused person's, namely, Samiruddin, Kasem and Soleman coming in cycles infront of P.W. 4, Akbar's house. When he stopped infront of Akbar's house, Appellant Kasem asked him to settle the matter. All those three persons stopped there. Then Kasem told Samu that yesterday's matter should be settled. At this, Samu dealt fist-blow on this witness and he fell down on the ground. Then Soleman, Kasem and Samiruddin and one person, Abhas by name, who came there, all dealt fist blows. Samu released him after he had beaten him up. At that moment, his elder brother Sohrab Ali, the deceased, was coming there and he forbade them to quarrel. Samu stood before Sohrab and said 'hit, hit'. Then Nasu, who was coming in a cycle, left behind his cycle and struck in the back of his elder brother Sohrab from left side with a dagger. His elder brother fell down immediately. Nasu, then came to stab him with a dagger. Being scared, he entered in P.W. 4's house. Thereafter, the accused Appellants left the place. At that moment, Kasem, the person accompanied him had also left and he was not present when his elder brother was hit. His elder brother fell down immediately. Nasu, then came to stab him with a dagger. Being scared, he entered in P.W. 4's house. Thereafter, the accused Appellants left the place. At that moment, Kasem, the person accompanied him had also left and he was not present when his elder brother was hit. When he came out from the house of the Akbar afterwards, he saw there one Jushas Ali, Nasiruddin, Sahar Ali Askar and another women. He fetched a rickshaw where he took his elder brother to the civil hospital and his elder brother died as they reached the civil hospital. He came to Rupahihat Police Station and lodged an ejahar which was written by Saheb Ali, P.W. 8. In cross, he stated that the accused Kasem owed him a sum of Rs. 12/- which he asked him at the Beltal Bazar on the previous day. Kasem paid him Rs. 10/- but refused to pay the remaining Rs. 2/-. On the day of occurrence, Kasem, the accused Appellant asked for settlement of the previous incident. In the process the accused persons assaulted him. When they were beating his up, the deceased Sohrab arrived there. He saw that Samu remained standing confronting his brother saying 'mar, mar' and then Nasu hit Sohrab with a dagger. 12. P.W. 4, Akbar Ali another eye-witness, deposed that in the morning on the day of occurrence while he was sleeping at his house, he heard hue and cry near his house and then he came running there. He saw Sohrab going passed by him. He saw Momtaz and Sahar Ali got engaged in a quarrel with Samu. Samu was accompanied by Soleman Ali and Kasem Ali. He also saw a fight taking place amongst them. At that time, he saw Nasu coming in a by-cycle. At that moment, Sohrab Ali was preventing the quarrel. When Samu saw Nasu, he asked Nasu to assault Sorhab and Nasu came from the backside and stabbed Sohrab Ali with a knife. Sohrab fell down. When he came near to Sohrab, he saw Sohrab was bleeding from his back. He was taken to hospital and succumbed to the injuries on his way to hospital. In cross, this witness reinforced that while quarrel was going on Nasu came there. He saw a knife in the Nasu's hand as he approached him. Sohrab fell down. When he came near to Sohrab, he saw Sohrab was bleeding from his back. He was taken to hospital and succumbed to the injuries on his way to hospital. In cross, this witness reinforced that while quarrel was going on Nasu came there. He saw a knife in the Nasu's hand as he approached him. He stated that Nasu stabbed Sohrab soon after Samu uttered 'mar, mar' i.e. 'hit, hit'. Nasu came to the side where quarrel took place and stabbed Sohrab with a knife. At first, he had entangled himself in the quarrel. Jahur Munshi had not offered any resistance. 13. P.W. 5, Mustt. Mallikjan, wife of P.W. 4, deposed that on the date of occurrence, when she was coming out from her house upon hearing hue and cry, she saw Soleman, Narul, Judhas engaged in a fight with Mamtaz and Sohab. Sohrab was standing on the road asking them not to quarrel and at that time Nasu arrived there. Samu ordered Nasu to hit and Nasu stabbed Sohrab with a dagger and Sohrab fell down by the side of the road and then she came towards Sohrab and made him to sit. Sohrab died on his way to hospital. In cross, this witness also reiterated the statement made in chief stating that Sohrab came there to prevent the quarrel and Nasu came there from backside and stabbed Sohrab with a dagger at the very place he had been standing when Samu passed the order to hit Sohrab. 14. Another eye-witness, P.W. 10, Mohar Ali, evidenced that on the day of occurrence, in the morning at about 7.00 a.m. he heard hue and cry in the direction of Akbar's house and then he came there on a run. On reaching there, he saw Samu, Soleman and Kasem engaged in fisticuffs with Momtaz. Sohrab was waiting there forbidding them to quarrel. They did not obey. At that time Nasu came there from eastern direction riding on a cycle. He threw the cycle under the mango tree. Then Samu ordered Nasu, 'mar, mar' i.e. 'hit, hit' and Nasu came on a run and hit Sohrab with a dagger from behind his back. He further deposed that he tried to safeguard him but Kasem and Soleman prevented him by hitting him with a cycle chain. He threw the cycle under the mango tree. Then Samu ordered Nasu, 'mar, mar' i.e. 'hit, hit' and Nasu came on a run and hit Sohrab with a dagger from behind his back. He further deposed that he tried to safeguard him but Kasem and Soleman prevented him by hitting him with a cycle chain. He further deposed that when Mamtaz advanced towards Sohrab, Nasu chased him whereupon he entered Akbar's house. Upon hearing hue and cry, Akbar, Jahur, Sumani, Nasir and Akbar's wife reached there and then a rickshaw was fetched for taking the injured Sohrab to the civil hospital. By that time, the accused/Appellants took on their heels. In cross, this witness fortified his evidence in chief stating that he found Sohrab at the place of occurrence forbidding quarrel. This witness also stated that Kasem and Soleman beat him up with a cycle chain. He stated that the Nasu took out a knife from the fold of his 'lungi'. He denied the suggestion that he did not see any injury on the Samu's person. 15. In the backdrop of the depositions of those witnesses aforesaid, it is seen that the death of Sohrab by a dagger stab has been proved to the hilt. All those eye-witnesses consistently deposed that the Appellant No. 2, Nausad Ali @ Nasu thrust the dagger blow in the back of the deceased, Sohrab as per order of Appellant No. 1, Samu and the evidence of them amply establishes the prosecution case against both the Appellants No. 1 and 2. The presence of all the Appellants is not in dispute and their participation in the incident also cannot be doubted at all. 16. For the purpose of determining the justification of the impugned conviction on the basis of the evidence of the eye-witnesses above referred to, now let us examine the medical evidence as adduced by P.W. 6, the Dr. A.C. Talukdar, who performed the postmortem examination on the dead body of deceased Sohrab Ali. P.W. 6, the Doctor in his deposition found the following injuries: Injuries: 1) Average built, a stout young man. Rigor mortis present. No injury over the body except the clean sharp vertical injury 1" x 1/3" x4" deep in the thorasic cavity lies in the left 10th intercostals space 2" away from mid line of the vertebral column 10th and 11th ribs are partially cut. Rigor mortis present. No injury over the body except the clean sharp vertical injury 1" x 1/3" x4" deep in the thorasic cavity lies in the left 10th intercostals space 2" away from mid line of the vertebral column 10th and 11th ribs are partially cut. The injury is on the left side of the back on the chest. Thorax: In the left side 10th and 11th ribs with intercostal corresponding to the injuries are cut. Left Plura punctured. Clot and haemorrhage present Right healthy. Lung: In corresponding to the injury I the left 10th intercostals space, the lung is punctured and full of antemortem clot present. 17. In the post-mortem report itself, the Doctor, P.W. 6, opined that the injuries described above was ante-mortem by nature and it was caused by sharp weapon and penetrating in nature. Cause of death was due to shock and haemmorhage as a result of the injury in the vital structure sustain. The injury referred to above was sufficient to cause death of a person. 18. From the above medical evidence, it would appear that the deceased sustained only one single injury in the left 10th intercostals space and corresponding to this injury lung was punctured and this injury was ante-mortem in nature and caused by sharp weapon. Medical evidence as regards the injury was in full corroboration with the testimony of the eye-witnesses, who were categorical in deposing that Nasu, Appellant No. 1 struck Sohrab with a dagger on the back side on the body of the deceased on being commanded by Samu. 19. On the other hand, the defence witness, D.W. 1, Julekha Khatoon evidenced that Samu, Nasum, Soleman and Kasem were known to her. She also knew Mahar, Mamata and Sohrab who was dead. On the day of occurrence, she said, she was going to Lanka along with Samu, Mulukjan. Samu carried two babies on his cycle. At that time she saw Sohrab sitting near a hay stack. Sohrab held Samu by the arms. Immediately Mamtaz and Mahar came out of the hay stack. Mamtaz had a dagger in his hand. When Mamta inflicted dagger blow on Samu, the blows fell on Sohrab's back. At that time Jahur Munshi was standing nearby. This witness did not release any material whatsoever in order to enable the defence to dislodge the prosecution case. 20. Mr. Immediately Mamtaz and Mahar came out of the hay stack. Mamtaz had a dagger in his hand. When Mamta inflicted dagger blow on Samu, the blows fell on Sohrab's back. At that time Jahur Munshi was standing nearby. This witness did not release any material whatsoever in order to enable the defence to dislodge the prosecution case. 20. Mr. Choudhury, learned Senior Counsel for the Appellants has strenuously argued that from the medical evidence vis-a-vis the testimony of the eye-witnesses though it is seen that Nasu caused fatal injury to the deceased Sohrab with a dagger by hitting on his back side puncturing the lung by giving a single blow, however, according to him, such injury was not inflicted by Nasu with any intention to cause death or such injury that was likely to cause his death. From the facts and circumstances, as gathered from such evidence, it can be well inferred that the said single blow was thrust on the spur of moment. He has further contended that there was no motive of the Appellants to cause death to late Sohrab Ali. All those started from a squabble amongst the Appellants along with Momtaz Ali, P.W. 2 and late Sohrab Ali who intervened therein asking them not to quarrel. According to him, in so far as instigation by Samu to Nasu to kill Sohrab by uttering 'mar, mar' is concerned, there was not a single evidence on record to prove such instigation by the prosecution and the same is evident from the testimony of eyewitnesses namely, P.W. 1, 2, 4, 5 and 10 inasmuch as those witnesses affirmed only to the extent that Samiruddin was seen uttering 'mar, mar' to Nasu and that did not mean that Nasu was incited to kill Sohrab. 21. It has further been contended that as regards the involvement of the Appellant No. 3, Kasem Ali and Appellant No. 4, Soleman Ali in causing injury to Sohrab, not a single eye-witness ever indicted them in killing of deceased Sohrab Ali. Those eye-witnesses even did not name both the Appellants pointing their participation in the incident of causing injury on the person of Sohrab Ali who later on succumbed to the injury. As per testimony of the witnesses, they only participated in the quarrel and in consequence of such quarrel they assaulted Mumtaz Ali who suffered simple injury. At best, according to Mr. As per testimony of the witnesses, they only participated in the quarrel and in consequence of such quarrel they assaulted Mumtaz Ali who suffered simple injury. At best, according to Mr. Choudhury, learned senior Counsel, their conviction under Sections 323/34 IPC maybe upheld acquitting them from the conviction of Sections 302/34 IPC. 22. On a close analysis of the statements of the witnesses, it would appear that the deposition of the witnesses did not attribute any participation of these two Appellants to share a common intention to cause fatal injury to the deceased. The evidence was silent to the effect that there was any prior meeting of minds of these two Appellants for commission of the offence under Section 302 IPC. Moreso, there is no material on record to convict these two Appellants under Section 302 IPC and the prosecution, in our view, miserably failed even to prove that they had common intention to kill Sohrab Ali. 23. We are, therefore, of the opinion that the applicability of Section 34 IPC cannot be attracted to rope these two Appellants in the offence of causing death of late Sohrab Ali, We have, thus, no hesitation to agree with the submission advanced by the learned senior Counsel on this point and at the same time we cannot accept the findings of the learned trial Court convicting these two Appellants namely Kasem Ali and Soleman Ali under Section 302 read with Section 34 IPC. In view of the same, we are inclined to acquit both the Appellants, Kasem Ali and Soleman Ali from their conviction under Sections 302/34/IPC. It is provided accordingly. 24. On the other hand, it would appear from the reading of statements of the eye witnesses that Samiruddin, Kasem and Soleman quarrelled with Momtaz Ali and ended up in assaulting with' lathi' causing simple injury to P.W. 2. Since such assault has been established by the prosecution beyond reasonable doubt, we do not find any illegality in convicting these three Appellants under Section 323read with Section 34 IPC. However, it is to be noted that since the date of judgment passed on 20.4.2002, they have been in custody and as such their sentence to suffer R.I. for one year each under Sections 323/34 IPC has, by this time, been served by them. 25. Coming to the convictions and sentences of the Appellant Nos. However, it is to be noted that since the date of judgment passed on 20.4.2002, they have been in custody and as such their sentence to suffer R.I. for one year each under Sections 323/34 IPC has, by this time, been served by them. 25. Coming to the convictions and sentences of the Appellant Nos. 1 and 2 namely, Samiruddin @ Samu and Nausad Ali @ Nasu respectively under Sections 302/34 IPC, on meticulous scanning of the depositions as already referred to above, of the eyewitnesses as well as the doctor, it is seen that all those eye witnesses in the same vein deposed that the Appellant No. 1 Samu obstructed deceased Sohrab Ali who came to the place of occurrence only to intervene and forbid them not to quarrel amongst themselves and on seeing Nasu coming in a bicycle towards the place of occurrence, he asked Nasu by uttering "mar, mar" and as a result of such utterance, Nasu hit Sohrab on his back with a dagger as a result of which he fell down on the ground. Admittedly, it has come on the evidence, i.e. both in ocular and medical evidence that Nasu thrust a single dagger blow. It also appears from the conduct of Nausad @ Nasu, as revealed from the ocular evidence that he acted by way of sudden provocation and under such influence on the spur of the moment, he hit Sohrab. By the nature of injury suffered by the deceased as indicated in the medical evidence which was also corroborated by the testimony of the eye witnesses, this Court can easily come to the conclusion that such blow was given by way of sudden provocation by the Appellant No. 2 on being incited by the Appellant No. 1. 26. In two decisions of the Supreme Court, namely, (i) Sarup Singh v. State of Haryana and Ors. reported in 1995 Cri L.J. 4168 and (ii) K. Ramakrishnan Unnithan v. State of Kerala reported in AIR 1999 SC 1428 , as cited by Mr. 26. In two decisions of the Supreme Court, namely, (i) Sarup Singh v. State of Haryana and Ors. reported in 1995 Cri L.J. 4168 and (ii) K. Ramakrishnan Unnithan v. State of Kerala reported in AIR 1999 SC 1428 , as cited by Mr. Choudhury, learned senior Counsel in support of his argument on the point of slamming single blow on the vital part, the Apex Court held that though accused had the knowledge that the injury he was causing to the victim on a vital part of the body was likely to cause his death, but such injury was inflicted without any intention to cause death and, accordingly, the conviction under Section 302 IPC was modified to Section 304, Part-II IPC and the sentence was reduced to the period already undergone. 27. In Sarup Singh's case (supra) while reducing the sentence to the period already undergone, the Apex Court, however, directed the Appellants therein to pay a fine of Rs. 20,000/- by way of compensation to be paid to the widow of the deceased. 28. The Apex Court in Sarup Singh's case (supra) in paragraph-4 observed as under: ...Keeping in view this medical evidence and the established facts and circumstances of the case on the record, we are of the opinion, that the Appellant can be clothed with the knowledge that the injury that he was causing to Jai Karan, with a hammer, on his head, a vital part of the body, was likely to cause his death, though without any intention to cause death or such injury as was likely to cause his death. He gave a single blow on the head of the deceased. The offence would, therefore, squarely fall under Section 304, Part-II, IPC. We, accordingly hold him guilty of the said offence and convict him accordingly. 29. In K. Ramakrishnan Unnithan's case (supra) in paragraph-6 the Supreme Court held as follows: ...Thus it is established beyond reasonable doubt that the Appellant had given on blow but the no doubt was quite severe, as a result of which the intestines had protruded out. It is however crystal clear that the Appellant had no animosity against the deceased and he was involved because of the altercations with P.W. 1. It is however crystal clear that the Appellant had no animosity against the deceased and he was involved because of the altercations with P.W. 1. The scenario in which the Appellant has been stated by the eye-witnesses to have given one blow on the deceased, it is difficult for us to hold that he gave the blow in question either with the intention of causing murder of the deceased or he can have said to have the requisite knowledge that the death would otherwise be the inevitable result. In such a situation, even on accepting the prosecution case we hold that the accused did not commit the offence under Section 302 but under Part-II of Section 304, IPC. We accordingly, set aside the conviction of the Appellant under Section302, IPC and instead, convict him under Section 304, Part-II. 30. Having regard to the aforesaid judgments and also taking into account the established facts and circumstances of the case basically based on the evidence of all the eyewitnesses and doctor's testimony, we are of the firm view that it is a fit case where the conviction of these two Appellants under Sections 302/34 IPC deserves to modified to conviction under Sections 304, Part-II/34 IPC and accordingly both the Appellant Nos. 1 and 2 are hereby convicted under Section 304, Part-II read with Section 34 IPC instead of Sections 302/34 IPC. However, keeping in view the fact that after conviction vide judgment and order dated 20.4.2002, the Appellants are in custody, we are of the opinion that the ends of justice would be met if the sentence of the Appellants for the offences under Sections 304, Part-II/34 IPC is reduced to the period already undergone by them. It is ordered accordingly. 31. Nevertheless, looking at the fact situation of the case at hand, we propose to impose fine on these Appellants in terms of Sarup Singh's case (supra). Consequently, we direct both the Appellants, namely, Samiruddin @ Samu and Nausad Ali @ Nasu to pay a fine of Rs. 10,000/- each by way of compensation under Section 357 Code of Criminal Procedure to be paid to the widow of the deceased and if she is not alive or otherwise not available, the amount be paid to P.W. 1 Nasiruddin, the son of deceased Sohrab Ali. 10,000/- each by way of compensation under Section 357 Code of Criminal Procedure to be paid to the widow of the deceased and if she is not alive or otherwise not available, the amount be paid to P.W. 1 Nasiruddin, the son of deceased Sohrab Ali. The fine shall be deposited in the Trial Court i.e. the Court of the learned Sessions Judge, Nagaon within 4 (four) months and on such deposit, the amount be paid to the widow of the deceased and in case of her death or absence, to Nasiruddin. On deposit of total amount of Rs. 20,000/- in the trial Court, the Appellants shall be released from custody forthwith. If such fine payable by way of compensation under Section 357 Code of Criminal Procedure, as directed, is not deposited in the trial Court within the time frame, the Appellants shall undergo five years rigorous imprisonment for offence under Section 304, Part-II/34 IPC. 32. With the aforesaid observation, direction and modification of sentence as aforesaid the appeal is partly allowed. Appeal partly allowed.