JUDGMENT A.C. Upadhyay, J. 1. This jail appeal is directed against the order of conviction under Section 302 IPC and sentence of rigorous imprisonment for life and a fine of Rs. 1000, in default, rigorous imprisonment for three months, imposed on the accused/Appellant by the learned Ad-hoc Additional Sessions Judge, (FTC), Sonitpur, Tezpur, in Sessions Case No. 101 (S)/2002. 2. We have heard Smti. A. Devi, learned Amicus Curiae appearing on behalf of the accused/Appellant and Mr. Z. Kamar, learned PP, Assam, representing the State. 3. The prosecution story in brief, may be summarized as follows: On 11.11.2001, at about 8 P.M. while deceased Bhagan Mura and his friend P.W. 5, Gangaram Rajowar were sitting in the house of P.W. 4, Newa Chand Ghatowar, accused Prem Orang, armed with a 'dao' (a sharp cutting weapon about 17 inches in length with a wooden handle) appeared before them and inflicted injury on the neck and head of Bhagan Mura and thus caused grievous injuries on the person of the deceased. Though injured Bhagan Mura was immediately shifted to Tezpur Civil Hospital for treatment, he finally succumbed to the injuries sustained by him. P.W. 1, Jailu Mura, father of Bhagan Mura, lodged an FIR, exhibit-5, at Dhekiajuli Police Station. On receipt of the FIR, the police launched investigation and on completion of the investigation finding sufficient materials against the accused/Appellant above named, submitted charge sheet alleging commission of the offence under Section 302 IPC. 4. The offence under Section 302 IPC being exclusively triable by Court of Sessions the case was committed to the Court of Sessions for trial learned Sessions Court, on receiving the case for trial, on the basis of the materials relied upon by the prosecution, finding sufficient grounds to proceed against accused/Appellant framed formal charge under Section 302 IPC. On reading over and explaining the charge the accused pleaded not guilty to the charge and claimed to be tried. 5. During the course of trial, the prosecution side, in order to prove the charge against the accused/Appellant, examined in all 10 prosecution witnesses including the Investigating Officer and the Doctor, who carried out the post mortem examination of the deceased victim. The post mortem examination carried on 12.11.2002 on the dead body of the deceased Bhagan Mura, a male, aged about 28 years revealed the following: Rigor mortis absent. A stout male body. Eyes and mouth was closed. The post mortem examination carried on 12.11.2002 on the dead body of the deceased Bhagan Mura, a male, aged about 28 years revealed the following: Rigor mortis absent. A stout male body. Eyes and mouth was closed. 1. Incised wound over the right side of the scalp 4" X 1" X 1" in size Bone deep. Ante mortem blood clots seen. 2. Incised wound over the left side of the neck. 4" X 2" X 1" in size. Cutting the carotid vessels and nerves on the left side. No other injury seen. On internal examination: There is a fracture of right parietal bone and scalp. Left carotid vessels were cut. Other organs were healthy. All the injuries were ante mortem in nature. 6. In the opinion of the Doctor conducting postmortem examination, the death was due to shock and haemorrhage as result of the injury sustained. In the present case, the death of the deceased, as a result of the injuries sustained, was never challenged and, thus, is not in dispute before us. 7. In the opinion of the Doctor, the death was due to shock and haemorrhage as a result of the injuries sustained by the deceased and the injuries sustained by the injured was sufficient to cause his death in the ordinary course of nature. 8. It is now required to be seen from the evidence on record whether the accused/Appellant, who is facing the charge, for the commission of offence under Section 302 IPC was the author of the fatal injuries sustained by the deceased. 9. The learned Counsel for the accused Appellant strenuously submitted that the prosecution witnesses could not prove the offence alleged against the accused beyond all reasonable doubt and accordingly the accused is entitled to be acquitted in the instant case. Learned Counsel for the accused-Appellant further contended that non exhibition of the lamp by the prosecution by which the incident was seen by the witnesses creates doubt in the prosecution case. Further it was submitted that the seizure of the 'dao' at the instance of the accused was not proved in terms of the requirement of law laid in this regard. 10. On the other hand, the learned PP, Assam emphatically submitted that the occurrence was witnessed by the eye witnesses and apart from every other thing the accused/Appellant was caught red handed by the witnesses present at place of occurrence. 10. On the other hand, the learned PP, Assam emphatically submitted that the occurrence was witnessed by the eye witnesses and apart from every other thing the accused/Appellant was caught red handed by the witnesses present at place of occurrence. The learned PP tirelessly presented that the judgment of conviction recorded by the learned trial Court needs no interference by this Court. 11. P.W. 1, Sri Jailu Mura father of the deceased, stated in his evidence that on the night of occurence on Sunday at about 8 P.M., his son Bhagan Mura along with his friend Gangaram were sitting in the house of Newa Chand Ghatowar, which is situated at a distance of about 120 meters from his house. At that time he heard hue and cry of the daughters of Newa Chand Ghatowar and came to the house of Newa Chand where he came to know that his son was killed by the accused Appellant. He found his son with cut injuries on his head and back of the neck with profuse bleeding from the injuries. The accused/Appellant Prem Orang was kept confined by Newa Chand. Though the injured Bhagan Mura was shifted to Tezpur Civil Hospital for treatment, however, he succumbed to the injuries sustained. P.W. 4, Sri Newa Chand Ghatowar was present at the time of occurrence and as the occurrence took place in his house, at about 8 P.M. in the evening, while he was sitting in his courtyard after having his dinner. At that time deceased Bhagan Mura and Ganpram came to his house. When both Bhagan Mura and Gangaram were sitting in the courtyard, accused Prem Orang came to the house of Newa Chand by crossing the fencing from the western side in the courtyard and pushed Bhagan to the ground and thereafter when Bhagan fell on the ground assaulted him twice by the 'dao' held by him (P.W. 4), Newa Chand, caught hold of the accused Appellant with the dao. While he attempted to run away from the place of occurrence accused threw the dao, which fell in the boundary of (P.W. 4), Newa Chand. 12. While he attempted to run away from the place of occurrence accused threw the dao, which fell in the boundary of (P.W. 4), Newa Chand. 12. In the meantime, P.W. 3 Smti Basanti Ghatowar, daughters' of Newa Chand, who was having meal in the house adjacent to the courtyard where the occurrence took place, upon hearing a sound of some person falling on the ground came out immediately with an open lamp and saw the accused Appellant giving the second blows with a dao on Bhagan Mura, who was lying on the courtyard. P.W. 3, shouted to say, "Uncle, what you have done". Immediately after the incident Gangaram Rajowar caught hold of the accused Appellant. P.W. 2 Monti Ghatowar and P.W. 3, Basanti Ghatowar sounded alarms, and villagers came running to their house, tied the accused and kept him confined. The police came to the place of occurrence and arrested the accused Appellant and on being shown by the accused also seized the dao in presence of the witnesses. P.W. 5, Gangaram Rajowar who is another eye witness to the occurrence fully corroborated the statement made by P.W. 4, Newa Chand. 13. P.W. 4, Newa Chand Ghatowar, stated that immediately after the assault on the deceased when accused was caught by him, the accused/Appellant threw away the dao carried by him, which fell on the boundary side. of Newa Chand's land. Upon arrival of the police in the place of occurrence, the dao was seized by the police, on being shown by the accused. P.W. 7, Binda Rajowar, also corroborated the evidence that on being shown by the accused Prem Orang, exhibit-1, dao, was seized in his presence. Fact remains, that it is a settled law that in cases leading to discovery, the police officer conducting the investigation must record the statement of the person volunteering to recover such items having bearing with commission of offence, before conducting the accused to discover such items. In the instant case recording of statement of the accused prior to the recovery of dao in question was not proved, therefore the alleged recovery of 'dao' at the instance of the accused is not acceptable in evidence. As whole the occurrence took place on the glare of the witnesses, therefore, failure on the part of the prosecution on this count would not be fatal. As whole the occurrence took place on the glare of the witnesses, therefore, failure on the part of the prosecution on this count would not be fatal. However, forthright testimony of eye witnesses account regarding recovery of weapon of assault, that is, the 'dao', near the dead body, immediately after the occurrence, can not be obliterated. 14. It clearly justifies from the evidence on record that presence of the accused at the place of occurrence at the relevant time is not under challenge. The defence except taking the plea of innocence did not come forward to explain as to why and how the accused was caught at the place of occurrence by the witnesses. From the account of the eye witness's testimony, it is abundantly clear that the deceased was assaulted with a 'dao' by the accused in the presence of the witnesses. The witnesses, who saw the accused committing the crime caught hold of him immediately after the occurrence. 15. The learned Counsel for the accused Appellant submitted that the accused was falsely implicated in this case by the witnesses. On careful examination of the evidence on record it is not at all discernable that any of these eye witnesses had animosity against the accused Appellant. On careful scrutiny of the evidence on record, it transpires that the animosity theory propounded by the defence do not have any legs to stand, on the contrary, the witnesses Jailu Mura and Sukra Mura in their evidence over and again stated that the daughter of the accused eloped with the deceased and stayed with him for few nights and on that grudge the accused had caused injuries on the deceased. Therefore, possibility of implicating the accused falsely in this case appears to be imaginary as these witnesses had no animosity against the accused Appellant. 16. The Evidence of the prosecution witnesses is that they surrounded the accused and caught hold of him and handed him over to the police. 17. In order to lay emphasis on the point that the prosecution side by not exhibiting the open lamp by which the accused was identified by the witnesses at night has created a doubt in the prosecution case, the learned defence counsel placed reliance on a decision reported in Suresh Naotia v. State of Assam 1979 Cri.LJ. 122 (Gau). 17. In order to lay emphasis on the point that the prosecution side by not exhibiting the open lamp by which the accused was identified by the witnesses at night has created a doubt in the prosecution case, the learned defence counsel placed reliance on a decision reported in Suresh Naotia v. State of Assam 1979 Cri.LJ. 122 (Gau). In Suresh Naotia v. State of Assam (supra) it was held as follows: Dacoits identified by hurricane lantern and flash of torch light used by dacoits themselves. Lantern not recovered. Witnesses not disclosing the existence of the lantern at the time of occurrence. Introducing lantern subsequently to improve the prosecution case cannot be ruled out. Identifying assailants in the flash of torch light carried by dacoits themselves highly doubtful. 18. Though question of failure to seize of the lamp during investigation was raised by the learned Counsel for the accused but the evidence of P.W. 3, clearly depicts that in the instant case the accused was caught red handed immediately after the occurrence by the witnesses and on arrival of the police in the place of occurrence he was handed over to the police. Further, P.W. 3 who happened to be present as an eye witness, at the place of occurrence categorically asserted that she walked out with an open lamp on hearing a sound of somebody falling on the ground. Therefore, in the circumstances the question of identifying the accused in the light of the lamp is of little relevance. Accordingly, in our considered view, in the facts and circumstances of the case in hand ratio of the decision in Suresh Kumar Naotia v. State of Assam (supra) has no application. 19. The production of the accused by the local people before the police immediately after the occurrence is equally a very strong circumstance, which proves the truth of the prosecution case. 20. On consideration of the entire evidence on record and appreciation of the evidence of witnesses we have no hesitation in accepting the testimony of eye witnesses. On careful scrutiny of the evidence of the prosecution witnesses, it seems that the prosecution case has been proved beyond all reasonable doubts. 21. Keeping in view the testimony of all the witnesses, more particularly, P.Ws. On careful scrutiny of the evidence of the prosecution witnesses, it seems that the prosecution case has been proved beyond all reasonable doubts. 21. Keeping in view the testimony of all the witnesses, more particularly, P.Ws. 3, 4 and 5, who are the eye witnesses to the occurrence and also considering the mitigating circumstances to the effect that the daughter of the Appellant eloped on two occasions with the deceased and she was recovered after 2/3 days along with the accused, further considering the age and education of the accused/Appellant who is living in a village surroundings, to have to tolerate such a state of affairs might have triggered sudden emotional outbust. The fact of the accused/Appellant's daughter having been rejected by the accused may have been lurking in his mind at the time of commission of offence. Having meticulously considered all these factors, we are of the considered view that it is not a case for conviction under Section 302 IPC but at best it falls under the purview of Section 304 Part-I IPC. Accordingly, we convict the Appellant under Section 304 Part-I IPC and sentence him to undergo 10 years rigorous imprisonment. 22. In the result, the appeal stands partly allowed to the extent of modification of conviction and sentence as indicated above. 23. Before parting with the case, we would like to put on record our appreciation to Ms. A. Devi, learned Amicus Curie, for her valuable assistance in arriving at the above decision. We accordingly order that she is entitled to her professional fees, which is quantified as Rs. 5,000/-. 24. Send down the LCR forthwith.