JUDGMENT A.K. Goswami, J. 1. This criminal appeal arises out of a judgment and order dated 30.7.2004 passed by the learned Sessions Judge, Dhemaji, in Sessions Case No 37(DH)/2000, convicting the accused Appellant under Sections 302/326 IPC and sentencing him to suffer rigorous imprisonment for life and to pay a fine of Rs.5,000.00, in default, to suffer rigorous imprisonment for one year for the offence committed under Section 302 IPC and also to suffer rigorous imprisonment for six years and to pay fine of Rs.1,000/- under Section 326 IPC, in default, to suffer rigorous imprisonment for 2 years. The sentences were to run concurrently. 2. The prosecution case, in brief, is that one Shri Bhadreswar Bora filed an ejahar before the in-charge, Machkhowa Police Out Post, on 22.3.97, stating that while his daughter, Smt. Dipali Bora, had gone to their gate way to tether a she-goat, Shri Nitya Bharali ,out of previous grudge, dealt a cut blow on her head with an axe killing her instantly. When his wife, Smt. Sushila Bora went forward to save her, the said Nitya Bharali dealt a cut blow on her as well with an axe and caused her grievous injury. In the said ejahar, it was also alleged that Shri Biswa Bikash Bharali, Shri Nomal Bharali and Shri Dharmendra Bharali had incited Shri Nitya Bharali to cause the incident and that other members of the family of Shri Nitya Bharali were also involved in the incident. On receipt of the ejahar, Machkhowa Police Out Post GD Entry 764 of 22.3.97 was made and thereafter, the case was forwarded to the Officer-in-Charge of Dhakuakhana Police Station, whereupon, Dhakuakhana PS Case No 499/97 under Sections 302/326/307/109/34 IPC, was registered. 3. The investigating officer had investigated into the incident and thereafter, charge sheet was submitted by the police on 31.3.98 against the accused Appellant. The case being exclusively triable by a Court of Sessions, the learned Magistrate committed the case to the Court of the learned Sessions Judge, Dhemaji, wherein Sessions Case No 37(DH)2000 was registered. Charge under Section 302/326 IPC was framed against the accused Appellant and the same being explained to him, he pleaded not guilty and claimed to be tried. 4. During the trial, the prosecution examined 17 witnesses and the defense had adduced no evidence. Out of 17 witnesses. PW - 1, namely, Shri Mineswar Das, was declared hostile. Charge under Section 302/326 IPC was framed against the accused Appellant and the same being explained to him, he pleaded not guilty and claimed to be tried. 4. During the trial, the prosecution examined 17 witnesses and the defense had adduced no evidence. Out of 17 witnesses. PW - 1, namely, Shri Mineswar Das, was declared hostile. In cross-examination by the prosecution, he had also denied his statement under Section 161 of Code of Criminal Procedure PW- 2, Shri Rebat Das, PW- 3, Shri Rantu Das, PW- 4, Shri Shri Tikan Das, PW- 5, Shri Cheniram Das and PW- 6, Shri Rajib Das, had not in any way contributed to unfurl the prosecution case. PW - 2 is the witness to the inquest report, Ext- 1. PW- 6 had deposed that the police asked him to look for an axe in the water of the river where he was bathing and that he had found an axe in the water and that the police had taken that axe. 5. PW- 7 is the informant and father of the deceased. He had seen the attack on his wife but not the assault on his daughter. It is his evidence that hearing shouts, as he had come out of the house, he saw the accused Appellant striking his wife with an axe. His daughter was already lying on the ground with injuries on her head and chest. He was a witness to the inquest report, Ext- 1. In cross-examination, he had stated that the accused Appellant was his nephew from his daughter's clan and that the house of the accused Appellant was adjacent to theirs. He also deposed that there was no quarrel between the families and they were on visiting terms. It came out in his evidence that Shri Biswa Bikash Bharali, Shri Nomal Bharali and Shri Dharmendra Bharali, whose names had figured in the ejahar, had filed a case against him. He stated that the said 3 persons along with the accused Appellant were present at the place of occurrence and Shri Biswa Bikash Bharali threatened to kill him. 6. PW- 8, Joypur Hazarika, stated that while he was grazing cows along the river bank, he saw the police with an axe, which was found by some one in the river. The seizure of the axe was being effected and he was a witness to the said seizure list. 7. 6. PW- 8, Joypur Hazarika, stated that while he was grazing cows along the river bank, he saw the police with an axe, which was found by some one in the river. The seizure of the axe was being effected and he was a witness to the said seizure list. 7. PW- 9 is the injured and mother of the deceased. Her evidence is to the effect that while her daughter had gone out of the house to the road in front of their house taking a book in her hand, the accused Appellant, Shri Nomal Bharali, Shri Dharmendra Bharali and another person had arrived there and the accused Appellant struck on Dipali's head with an axe which he had with him. She had stated that at that point of time, she was sitting in the verandah of their house and had seen the occurrence. Immediately, she ran towards Dipali when the accused Appellant gave a blow in her chest. Thereafter, the accused Appellant had dealt another blow on her head as a result of which she fell down. She had become unconscious and she regained her senses at Dibrugarh Medical College and Hospital, much later. In cross-examination, she had stated that prior to the incident, there was no quarrel between Dipali and the accused Appellant. She also stated that one Shri Ratnakar Bharali was also present near the accused Appellant. She denied the suggestion that 3 elder brothers of the accused Appellant had come to their house and quarreled out of previous grudge. 8. PW- 10, Dr Subhash Sen, is the doctor who had examined PW- 9 at Machkhowa Dispensary on 22.3.97. According to him, the injuries were grievous and caused by a sharp weapon. He had found the following injuries: 1) Incised wound with simple fracture of left parietal bone. (as per CT scan report). Size of the wound is 8 cm. x 2 cm. x bone deep. Left parietal area, oblique, head and facing backward and laterally tail and facing forwards and medially. 9. PW- 11, Dr Jamadagni Upadhaya, is the doctor who had conducted the post-mortem examination on the body of the deceased. He had found the following injuries. According to him, the injuries were caused by a heavy blunt weapon and he had not found any sharp cut injury. 9. PW- 11, Dr Jamadagni Upadhaya, is the doctor who had conducted the post-mortem examination on the body of the deceased. He had found the following injuries. According to him, the injuries were caused by a heavy blunt weapon and he had not found any sharp cut injury. Three lacerated injuries on the scalp on the back of the head along the line from one ear to the other. The injuries are about two inches apart from one another and these are of equal size of about 2' x 1 /2' x 1 /2'. All the injuries are vertical. Ante mortem hemorrhage is detected on each injury. The skull is broken underneath the scalp injuries. These are multiple fractures of the skull on the occipital region. The membrane of the brain, cerebrum of the occipital region and the cerebellum are crushed totally. The whole brain matter is covered by blood. The hemorrhage is ante-mortem. 10. PW- 12, Shri Manuj Bora, is the elder brother of the deceased Dipali. He was not an eye witness to the assault made on his sister Dipali but claimed to have witnessed the blow inflicted on his mother. According to him, he was inside the house and hearing the screams of his mother, he came out and found the accused Appellant standing there holding an axe with Shri Nomal Bharali standing beside him. He also mentioned about one Shri Ratnakar Bharali who had asked the accused Appellant not to give any blow to him or on any member of the family. He deposed that seeing the dead body of his sister he had become unconscious. 11. PW- 13, Smt. Kabita Bora (Hazarika), is the younger sister of the deceased. She had deposed that hearing screams of her mother, she came out and saw her elder sister falling on the ground and the accused Appellant giving her blow on the head and chest with an axe and when her mother tried to save her, the accused Appellant had also assaulted her mother on her head with the axe. She mentioned that Shri Dharmendra Bharali and Shri Ratnakar Bharali were present near the accused Appellant and Shri Ratnakar Bharali had told the accused Appellant to liquidate all the members of the family. She also deposed that every one present there had incited the accused Appellant to finish all the members of her family. She mentioned that Shri Dharmendra Bharali and Shri Ratnakar Bharali were present near the accused Appellant and Shri Ratnakar Bharali had told the accused Appellant to liquidate all the members of the family. She also deposed that every one present there had incited the accused Appellant to finish all the members of her family. In cross-examination, she mentioned that her elder brother, PW- 12, was inside the house at the time of occurrence. 12. PW- 14, Smt. Jinti Das, owned a house adjacent to the house of PW- 7 who is her paternal uncle. She had deposed that hearing screams of Sushila, PW- 9, she had come out of her house and had seen that the accused Appellant was there with an axe in his hand. She had also seen Shri Ratnakar Bharali with lathi in his hands and Shri Nomal Bharali. Shri Ratnakar Bharali was shouting that he would finish the lives of all the members of the family of PW- 7. She had not witnessed the occurrence of assault, either on Dipali or on Sushila. She had stated that the injured Sushila had said that Dipali was dealt blows with the axe by the accused Appellant, Shri Nomal Bharali, Shri Dharmendra Bharali and Shri Ratnakar Bharali. 13. PW- 15, Shri Madan Bora, who was the Chief Judicial Magistrate, at the relevant point of time at Dhemaji, had deposed with regard to recording of confessional statement made by the accused Appellant Nitya Bharali. It is his version that he had recorded the confessional statement after taking all necessary safe guards and was satisfied with the voluntary nature of the confession made by the accused Appellant. The confessional statement recorded was exhibited as Ext-6. 14. PW - 16, Shri Sailen Bora, was the police officer who had submitted the charge sheet against the accused Appellant under Section 302 IPC. He had stated that the earlier Investigating Officer had practically completed the investigation when he had joined on his transfer as in-charge of Machkhowa Police Out Post. 15. PW - 17, Shri Punyeswar Doley, was the Investigating Officer of the case. He had stated that the accused Appellant had made confession that he had thrown the axe used in the incident in the river. 15. PW - 17, Shri Punyeswar Doley, was the Investigating Officer of the case. He had stated that the accused Appellant had made confession that he had thrown the axe used in the incident in the river. According to him, the accused Appellant surrendered in the Out Post about 1.00 PM on the day of occurrence after swimming across the river and appeared in the police Out Post in wet clothes. It is his deposition that the axe was recovered on 29.4.97. He also stated in cross-examination that the accused Appellant was in jail at the time of recovery of the axe and, therefore, the same was not identified by the accused. 16. The accused Appellant was examined under Section 313 of Code of Criminal Procedure. While generally denouncing the circumstances appearing against him as false, with regard to confession, he had stated that he was beaten up by the police and, as a result of torture, he had made the confession. 17. We have heard Mr. BD Das, learned senior counsel for the Appellant and Mr. D. Das, learned Public Prosecutor, Assam. 18.P Ws- 6, 8 and 17 are the witnesses who have deposed with regard to finding of the axe and seizure of the same by the police. PW- 6 had stated that one day while he was taking bath in the river, the police had come and asked him to look for an axe in the river. He had accordingly found an axe, which the police took away. The Investigating Officer, PW- 17, however, does not even indicate the aforesaid manner of recovery of the axe. PW- 8 was a signatory of seizure list and he was not a witness to the actual retrieving of the axe from the river. He had stated in his deposition that the police had seized the axe from the river bank and that somebody had found the axe in the river. The scanty material on record do not inspire us to take a view that the axe seized vide Ext- 3 was the axe used by the accused Appellant. 19. PW- 9 is the injured eye witness to the occurrence. She had pointedly stated that it was the accused Appellant who had struck Dipali on the head with an axe and that he had also dealt a blow on her head. 19. PW- 9 is the injured eye witness to the occurrence. She had pointedly stated that it was the accused Appellant who had struck Dipali on the head with an axe and that he had also dealt a blow on her head. She, though indicated the presence of Shri Ratnakar Bharali and some other persons, did not implicate them in any manner either in the assault on Dipali or on her. She had not also indicated any overt act, preceding and after the incident, in respect of the aforesaid persons. The defense had failed to bring out anything to discredit this witness and there is no reason as to why we should decline to accept her testimony. PW - 7, the father and PW- 13 also corroborated PW- 9 on material points. PW- 7 and PW- 13 had also attributed some threatening words used by the companions of the accused Appellant. The version of PW- 12, however, on that score, is somewhat different. The said persons were not sent up for trial and in any case, PW- 7 and PW- 13 have not stated anything in categorical terms attributing participation by them in the assault made by the accused Appellant on Dipali and Sushila. In our considered opinion, it cannot be said that the evidence of PW- 7 and PW- 13 are tainted and not worthy of acceptance. In view of the above, we have no hesitation to hold that it was the accused Appellant, who had inflicted the injuries on Dipali, as a result of which, she had died, and had also inflicted grievous injury on the person of PW- 9. 20. In view of the finding that we have recorded on the basis of the evidence of PWs- 7, 9 and 13, it is not necessary to consider the voluntariness or otherwise of the confessional statement, Ext- 6, made by the accused Appellant, particularly, in view of the fact that the accused Appellant, in his statement recorded under Section 313 of Code of Criminal Procedure, had retracted his statement. 21. However, a question remains to be answered and that is, whether on the basis of the evidence on record, it can be said that the accused Appellant is guilty of an offence under Section 302 IPC. 21. However, a question remains to be answered and that is, whether on the basis of the evidence on record, it can be said that the accused Appellant is guilty of an offence under Section 302 IPC. Regarding the offence under Section 326 IPC, for the injuries inflicted on PW- 9, there is no manner of doubt that it was grievous injury and, therefore, the conviction under Section 326 IPC, is just and proper. 22. Mr. BD Das, learned senior counsel for the accused Appellant, has submitted that on the basis of materials on record, even assuming that the accused Appellant is the perpetrator, it cannot be said that he had committed an offence under Section 302 IPC and the case of the accused Appellant would fall under Section 304 Pt II IPC. 23. The evidence on record discloses that Dipali had gone to the road in front of their house and it is a coincidence that the accused Appellant had arrived there with an axe in his hand. We have also found from the evidence on record that there was no previous enmity between the families. PW- 9 had also deposed that prior to the incident, at no point of time, there had ever taken place any quarrel between Dipali and the accused Appellant. What had happened immediately preceding few moments before the assault on Dipali is not clear. However, it is apparent that the accused Appellant did not use the axe, as is normally used, for cutting. He had dealt blows with the blunt side, as has been deposed by PW- 11. However, having regard to the past relationship between the families, it would not be unreasonable to assume that some precipitating factors must have arisen for the accused Appellant to react in a manner as he did. It is quite possible that the accused Appellant had acted in the heat of passion. The eye witness account of P Ws- 9 and 13 do not indicate that the accused had dealt repeated blows on the head of the deceased. PW- 11 had indicated that there were 3 vertical lacerated injuries on the scalp of the back of the head and that the injuries were 2? apart from one another. The doctor did not say that all the injuries were result of separate blows. 24. PW- 11 had indicated that there were 3 vertical lacerated injuries on the scalp of the back of the head and that the injuries were 2? apart from one another. The doctor did not say that all the injuries were result of separate blows. 24. If the accused Appellant had the intention to cause death, he would have certainly used the sharp side of the axe and might have inflicted couple of more blows. We are inclined to take a view, on the attending facts and circumstances of the case, that the present case would come under the exception 4 of Section 300 IPC. The accused had not taken any undue advantage or acted in cruel or unreasonable manner. The nature of injuries inflicted would, however, leave us with no room for doubt that the accused had the knowledge that the assault is likely to cause death and, therefore, we feel that the case of the accused Appellant would fall under Section 304 Pt II IPC and, therefore, we hold the accused Appellant guilty under Section 304 Pt II IPC. As regards sentence, we feel, having regard to the facts and circumstances of the case, period of 10 years of rigorous imprisonment and a fine of Rs.5,000.00 would be just and proper. Accordingly, he is convicted and sentenced. In default of payment of fine, he will suffer further rigorous imprisonment for six months. The sentence imposed by the learned trial Court for his conviction under Section 326 IPC is maintained. 25. In the result, the appeal is partly allowed as indicated above. 26. Send down the LCRs.