JUDGMENT I.A. Ansari, J. 1. This appeal is directed against the judgment, dated 4.5.2006, passed by the Additional Sessions Judge No. 1, Sivasagar, in Sessions Case No. 72(S-S)/2004, corresponding to GR Case No. 735/2003, under section 302 Indian Penal Code (in short IPC), convicting the accused/appellant under Section 302 IPC and sentencing him to suffer of imprisonment for life and also to pay a fine of Rs. 5,000/- and, in default, to undergo imprisonment for another 6 (six) months for the offence aforesaid. Being aggrieved by and dissatisfied with judgment, the accused, in Sessions Case No. 72(S-S)/2004, has preferred this jail appeal. The appellant, Sri Rajen Kurmi, would be described as accused person in all subsequent references. 2. The facts necessary for disposal of this present appeal, in short, are that on 26.8.2003, an FIR was lodged by one Rameswar Rajowar, Secretary, Village Defence Party (VDP, in short), Tomtomtola, with police at Nazira Police Station informing that at about 5:30 p.m., same day unknown person(s) killed Shri Bhagat Karmakar near the gateway of Jawahar Naboday Vidyalaya in Bahbari village and same was lying at the place aforementioned at the time of filing the FIR. 3. In the FIR, it has also been stated that family members of the deceased suspected that one Sri Rajen Kurmi might have killed the aforesaid person. On the receipt of the aforesaid FIR, Officer-in-Charge, Nazira Police Station, registered a case thereon vide Nazira Police Case No. 70/2003 under section 302 IPC and ordered an officer subordinate to him to investigate the case. 4. However, before I.O. could proceed to the place of occurrence, accused Rajen Kurmi surrendered before the police at Nazira Police Station and also produced before them a blood stained dao. He told the police that he had killed Bhagat Karmakar, the deceased, as he tried to commit rape on his wife. The I.O., immediately, took the accused into his custody, seized the dao, so produced, at the Nazira Police Station, in presence of witnesses on the strength of seizure list (Ext-5). 5. Thereafter, I.O. went to the place of occurrence taking the accused with him and, having found a dead body there, he held inquest on the same in presence of the witnesses, prepared a report in that connection and, thereafter, sent the dead body to Civil Hospital, Joysagar, for conducting post mortem examination on the same. 6. 5. Thereafter, I.O. went to the place of occurrence taking the accused with him and, having found a dead body there, he held inquest on the same in presence of the witnesses, prepared a report in that connection and, thereafter, sent the dead body to Civil Hospital, Joysagar, for conducting post mortem examination on the same. 6. In due course, he examined the witnesses, who were acquainted with the facts and circumstances of the case and, on completion of the investigation, he laid the charge sheet before the Magistrate and forwarded the accused to the court to stand his trial there. 7. Learned Addl. Sessions Judge, on hearing the parties and on going through record, framed charge under Section 302 IPC and charge, so framed, on being read over and explained to the accused person, he pleaded not guilty and claimed to be tried. 8. During trial, the prosecution side has examined as many as ten witnesses including the Medical and Investigating Officer. The statement of the accused person under Section 313 Cr.P.C., was recorded. When incriminating facts and circumstances were brought to his notice, he admitted that he had killed Bhagat Karmakar but he did so, because the deceased behaved improperly with his wife. The accused-appellants further case was that he had chased Bhagat Karmakar up to the place of occurrence and killed him there hitting him with the handle of a dao. 9. In support of his claim, the accused-appellant examined himself as DW 1. He was, however, cross-examined by the prosecution at length. On conclusion of the trial and after hearing arguments, advanced by learned counsel for the parties, the learned trial Court convicted the accused under Section 302 IPC and subjected him to punishment as aforesaid. It is that judgment, which has been assailed here in the present appeal. 10. Learned Amicus Curiae, opening up argument on behalf of the appellant, submits that the accused committed the offence, he was charged with, due to sudden and grave provocation, which he received from the deceased and such sudden and grave provocation temporarily deprived him of this power of self control and, as such, he could not have been convicted of offence under Section 302 IPC. 11. 11. He also contends that there are certain infirmities in the prosecution case, which clearly show that prosecution, too, could not make out the charge levelled against the accused person beyond all reasonable doubt. In that connection, it has been submitted that there were certain inconsistencies in the evidence of principal PWs, which make their evidence very doubtful. 12. It has also been submitted that the incident, in question, occurred at night, but it was not shown as to how the PWs could recognize the assailant of the deceased, though there was darkness everywhere, when incident aforesaid occurred. He, therefore, urges the Court to set aside the impugned judgment. 13. On the other hand, learned Public Prosecutor, appearing on behalf of the State respondent, submits that materials on record unmistakably demonstrate that the accused-appellant committed the offence under appeal. Being so, the judgment of the learned trial court suffers from no infirmity and, he, urges this Court to dismiss the appeal by affirming the judgment of the Court below. 14. We have given our anxious consideration to the rival submissions, advanced by the learned counsel for the parties, having regard to the evidence on records. However, in order to appreciate the dispute before us correctly and appropriately, we find it necessary to have a brief review of the evidence on records and the evidence of doctor, who conducted post mortem, on the dead body, is, first, taken up for consideration. 15. Dr. Diganta Kumar Das (PW 2) conducted post mortem on the dead body of the person aforesaid. According to him, on 27.8.2003, he was working as Medical Health Officer-I, at Civil Hospital, Joysagar. 15. Dr. Diganta Kumar Das (PW 2) conducted post mortem on the dead body of the person aforesaid. According to him, on 27.8.2003, he was working as Medical Health Officer-I, at Civil Hospital, Joysagar. On that day, on Police requisition, in connection with Nazira police station case No. 70/2003, he conducted post mortem examination on the dead body of one Bhagat Karmakar and found the followings:- (1) One deep incised would about 5" x 4" in size present in the back of the next extending from 1" below the right ear lobular, run obliquely up to the level of left stibmestoid process and cutting the skin, muscles and fravturely the 2nd cervicle vertebra and great vessels and spinal cosrd, and (2) One deep incised wound about 5" x 3" in size present in the back of the neck " below the previous (No. 1) would extending from " below the right ear lobular upto the level of 1" below the left ear lobular and cutting the skin, muscles and the spinal cord by fractury the 3rd cervicle vertebra. Clotted blood found into the site of injury and a big haematoma found. All the injuries are ante-mortem in nature and in his opinion the cause of death of the deceased was due to shock and haemorrhage as a result of injuries sustained by the deceased. The injuries are homicidal in nature, where Ext. 2 is the post-mortem report and Ext. 2 (1) is his signature. 16. The evidence, rendered by Doctor, remains nearly unchallenged and his evidence, we find, clearly shows that on or about 26.08.2003, one Bhagat Karmakar died a homicidal death. The doctor's evidence further reveals that shock and hemorrhage, caused by ante mortem cut wounds on the back of the neck of the deceased, caused the death. 17. Now, the question is: who caused death of the person aforesaid. The prosecution desires the Court to believe that the author of the crime was none other than the accused/appellant herein and in that connection, it places enormous reliance on the testimony rendered by PW-1 Mohammad Sahidur Rahman, PW-3 Rameswar Rajuwar, PW-7 Ananda Bhatowar and PW-8 Bhakot Karmakar. 18. In his evidence, PW-7 has stated that he has a furniture shop, near the place of occurrence. On 26.8.2003 in the evening, Bhagat Karmakar, the deceased, came to his shop and requested him to make an Armless chair. 18. In his evidence, PW-7 has stated that he has a furniture shop, near the place of occurrence. On 26.8.2003 in the evening, Bhagat Karmakar, the deceased, came to his shop and requested him to make an Armless chair. As it was the time of the night fall, he was making necessary arrangement to light the lamp leaving Kamakar in his shop. 19. At that time, according to PW 7, the accused came there and gave blows on the back of the neck of the victim. He did so, on the road, just in front of his shop. Being so hit, Bhagat Karmakar collapsed on the ground then and there. Having seen the occurrence, he (PW 7) got frightened so much so that he rushed to his shop, threw himself to the bed and got fainted temporarily. 20. It is in the evidence of PW 7 that he, however, came out of his shop soon after the incident in question, many people rushed to that place, he came to know that Bhagat Karmakar passed away in the meantime. In that connection, he rendered a statement before the Magistrate during the course of investigation, which he proved as Exhibit 7. In his cross-examination, he has admitted that when the incident occurred, he was alone in his shop. 21. PW-8, Sri Bharat Karmakar, is the younger brother of the deceased. He deposes that on 26.08.2003 towards the evening, he was taking his bath in his house. While he was taking his bath, he heard hue and cry raised from the place near the shop of PW-7. Out of curiosity, he went to the said place and found his brother, Bhagat Karmakar, lying on the road in an injured condition. 22. When he (PW 8) enquired from PW-7 as to how his brother had sustained wound, PW-7 reported to him that one Rajen Kurmi had assaulted him with a dao inflicting wounds on his person. People, who gathered there, reported the matter to the Secretary, VDP, Shri Rameswar Rajowar, and he, in turn, reported the matter to the police. 23. Being so informed, police came to the P.O. and held inquest on the dead body. The inquest report, which police prepared at the place of occurrence, in presence of witnesses, was proved as Ext. 4. People, who gathered there, reported the matter to the Secretary, VDP, Shri Rameswar Rajowar, and he, in turn, reported the matter to the police. 23. Being so informed, police came to the P.O. and held inquest on the dead body. The inquest report, which police prepared at the place of occurrence, in presence of witnesses, was proved as Ext. 4. In his cross examination, PW 8 has stated that when he reached the place of occurrence, a large number of people had already assembled at the said place. 24. PW-1, Sahidur Rahman, is a Govt. employee. According to him, during the relevant time, he had been working in Water Supply Department, Bahbari. On the fateful day, while he was at a place not far away from the place of occurrence, he saw the accused giving blows on the neck of deceased, the deceased fell down on the ground and died then and there and after killing the said deceased, the accused left the place of occurrence riding his bicycle. In that connection, he rendered a statement before the Magistrate during the course of investigation, which he proved as Ext. 1. In his cross examination, he has admitted that though he saw the incident, in question, yet he never reported the same to anyone. 25. PW-3, Rameswar Rajowar, deposes that he was not in his house, when incident above took place. On being informed about the aforesaid incident, he came to the place of occurrence and saw the body of Bhagat Karmakar lying on the road with bleeding wounds on his neck. He, thereafter, lodged the FIR with the police. 26. He lodged the FIR since he was the Secretary of the VDP. The FIR was written by his brother. He proves the FIR as Ext-3. In his cross-examination, he has admitted that he did not witness the incident. He has also admitted that he did not know if the deceased practised the black magic and if he could cast bad spell on his adversaries. 27. PW-5, Sri Mohon Karmakar, is the brother of deceased. According to this witness's evidence, on the fateful evening, when he was proceeding to his house on his bicycle and reached the place of occurrence, he found a man lying on the road with his face downward. On looking the man closely, he found him to be his brother, Bhagat Karmakar. PW-5, Sri Mohon Karmakar, is the brother of deceased. According to this witness's evidence, on the fateful evening, when he was proceeding to his house on his bicycle and reached the place of occurrence, he found a man lying on the road with his face downward. On looking the man closely, he found him to be his brother, Bhagat Karmakar. At that time, nobody was there at the place of occurrence, whereupon, he, immediately, came to the VDP Secretary, Shri. Rameswar Rajowar, and reported the matter to him, police came to the place of occurrence and seized one Gamocha (traditional Assamese towel), which was used by the deceased at the time of his death. In his cross-examination, PW 5 has deposed that the house of the accused person is situated at a distant of 15 cubits from the place of occurrence. 28. PW-4, Sri Amrit Gowala, deposes that on the fateful evening, he went to Nazira Police Station and found accused person there. He also put his signature on document said to be seizure list, which he proved as Exhibit 5. 29. PW-6 Dipti Rajowar deposes that on the fateful evening, she went to the Police along with her aunt, Rupali Rajowar and on being required at Police Station, she put her signature on a document, but she did not know why her signature was so obtained. 30. PW-9, Sri Anil Kurmi, is the brother of the accused. According to him, there is a Shiva Temple near his house, where the deceased worked as a priest. On the fateful evening, Bhagat Karmakar was killed at the place of occurrence, in that connection, several people came to place of occurrence, his brother was arrested by police and some clothes were seized by the police on the strength of seizure list Exhibit-6. 31. PW-10, Sri Hamidul Haque, is the I.O. of the case under scrutiny. According to him, on 26.8.2003, he was serving as a Second Officer at Nazira Police Station. 31. PW-10, Sri Hamidul Haque, is the I.O. of the case under scrutiny. According to him, on 26.8.2003, he was serving as a Second Officer at Nazira Police Station. On that day, Sri Pradip Chetia, Officer-in-Charge, received an FIR, lodged by Rameswar Rajowar, and on the basis of the FIR, a case was registered and he was entrusted with investigation, but before he could embark upon the investigation, accused Rajen Kurmi came to the Police Station with a blood stained dao in his hand, the accused was taken to police custody and the dao, which he carried to police station, was seized in presence of witnesses on the strength of seizure list, Ext. 5 and he (PW 10), then, rushed to the place of occurrence taking the accused along with him. 32. On arriving at the place of occurrence, which is situated on the road near J.N. Vidyalaya, Tomtomtola village, the Investigating Officer, according to what the he has de-posed, found the body of one Bhagot Karmakar lying in a pool of blood. The accused, too, accompanied him to the said place, the Investigating Officer also saw a stream of blood still coming out of the wounds on the body of deceased. Thereafter, he held an inquest on the dead body and prepared a report. The report, so prepared, was proved as Ext. 4. Having done the inquest, he sent the dead body to the Civil Hospital at Shivsagar for postmortem examination. During the course of investigation, he seized a Gamocha, which the deceased used in wrapping up his head. He also seized a dao, stained with blood, which was produced by the accused, when he surrendered to the police on 26.08.03. 33. The Gamocha and the dao, so seized, were proved as Materials Ext. 1 & Materials Ext. 2 respectively. On the completion of investigation, he submitted charge sheet under Section 302 IPC against the accused person and forwarded him to the Court to face his trial. In his cross examination, the Investigating Officer stated that Materials Ext. 1, dao, was handed over to him by the accused himself. 34. The above being the evidence on records, let us see how far such evidence makes out the charge proved against the accused person. In his cross examination, the Investigating Officer stated that Materials Ext. 1, dao, was handed over to him by the accused himself. 34. The above being the evidence on records, let us see how far such evidence makes out the charge proved against the accused person. On perusal of the evidence of PW-7, we have found that on the evening aforesaid, the deceased came to the shop of PW 7, located near Jawarlal Novodaya Vidyalaya and placed an order with him requiring him to deliver to the deceased an armless chair. 35. As it was almost dusk, PW-7, leaving the deceased in his shop, started making necessary preparation to light the lamp. In the meantime, the accused came there armed with a dao, gave two blows with that dao on the back of the neck of the deceased, the later dropped down on the ground and breathed his last soon thereafter. 36. The evidence, so rendered by PW-7, more particularly, his evidence that the accused hacked the deceased with a dao on the road, at the place of occurrence, finds unqualified support from the testimony rendered by PW-1, because the evidence, given on those points, is found to be nearly symmetrical to the evidence of PW 7. 37. More importantly, the accounts of incident which those two PWs rendered before the court find unwavering support from statements, they rendered before the Magistrate during the course of investigation which were proved as Ext. 1 & Ext. 7. The oral testimony of PW 1 and PW 7 coupled with statements in Ext. 1 & Ext. 7 unmistakably demonstrates that the accused, and none else, was the author of the crime in question. 38. We have already found that the accused, as disclosed by PW 1 and PW 7, inflicted two cut wounds on the back of the deceased which occasioned his instantaneous death. While performing postmortem examination on the body of the deceased, Doctor too noticed two deep wounds on the back of the neck of the deceased, caused by sharp weapon which occasioned his death on or about 26 Aug. 2003. 39. While performing postmortem examination on the body of the deceased, Doctor too noticed two deep wounds on the back of the neck of the deceased, caused by sharp weapon which occasioned his death on or about 26 Aug. 2003. 39. The evidence of Doctor which corroborates the testimony rendered by PW 1 and PW 7 on the point of nature of the wounds, number thereof and sites of such wounds as well as type of the weapon, used in inflicting the wounds on the deceased further certifies the account of incident, as told and retold by the PW 1 and PW 7 before the court during the trial. 40. In his evidence, PW-10 has stated that after the receipt of the FIR from PW-3 on 26th August, 2003, the accused too came to Police Station with a blood stained dao in his hand and surrendered to the police. PW-10 claims to have seized the same in presence of witnesses on the strength of seizure list Ext. 5. 41. Such evidence of PW-10 draws support from Ext. 5 as well as testimony rendered by PW-3 and PW-4. When one reads evidence, rendered by PW-3, PW-4 and PW-10 together with averments made in Ext. 5, he would find that the accused did surrender to the police just after the alleged incident and he did so with a blood stained dao in his hand. 42. Their evidence further shows that the dao, so produced before the police, was identified as Mat. Ext. 1. The factum of surrender of the accused to police just after the incident, and that too, with a blood stained dao, in the facts and circumstances, described here-in-before, speak loud and clear that the accused and accused alone was the killer of the deceased. 43. It is worth noting here that while being examined under Section 313 Cr.PC., the accused admitted that he had killed the deceased, that he killed him with a dao and that having killed him,, he surrendered to the police. In his statement, under Section 313 CrPC, he further claims that he had to kill the deceased since he used to misbehave with his wife and since he practised black magic. 44. Such admissions are found to be totally in tune with the prosecution case, as it emerged during trial. In his statement, under Section 313 CrPC, he further claims that he had to kill the deceased since he used to misbehave with his wife and since he practised black magic. 44. Such admissions are found to be totally in tune with the prosecution case, as it emerged during trial. These admissions, on the part of the accused person, becomes one more approval to the prosecution case that the man who killed the deceased at the place of occurrence was the accused in session case No. 72(S-S)/04 who is before this Court as appellant herein. 45. However, the accused attacks the prosecution case on two counts. At first, it has contended that the prosecution case suffers from several infirmities of extremely serious in nature. Such infirmities are, (i) the star campaigners from the prosecution side contradict one another on very material points and (ii) the prosecution made no effort to show how the witnesses could see the incident under consideration, although, it took place at a time, when there was darkness everywhere. 46. In so far first allegation is concerned, it has been pointed out that PW 5 claims that he was the first man to arrive at the PO and when he so arrived at the PO he did not find anyone there. But PW 7 claims that he was the first man to witness the alleged incident. On the other hand, PW 1 claims to have seen the accused hitting and injuring the deceased at the P.O. on the evening aforesaid. 47. According to learned Amicus Curiae, the man who actually came to the P.O. first in point of time remains unclear and it only serves to show that none of the PWs aforesaid had actually witnessed the incident under consideration. But such a contention from the side of the accused person is found to be without any substance. 48. We have already found that moment before the alleged incident, the deceased came to the shop of the PW 7 and placed an order with him requiring him to supply an armless chair to him. Shortly, thereafter, accused too came there and hit the deceased with the dao in his hand. Having seen the same, he got frightened so much so that he hide himself inside his shop. 49. On the other hand, PW 1 claims that he saw the incident from some distance. Shortly, thereafter, accused too came there and hit the deceased with the dao in his hand. Having seen the same, he got frightened so much so that he hide himself inside his shop. 49. On the other hand, PW 1 claims that he saw the incident from some distance. But he never came to the P.O. Such evidence of PW 1 and PW 7 when read in conjunction with testimony, rendered by PW 5, one would find that there was, in feet, no inconsistency, whatsoever amongst the testimonies rendered by those PWs. 50. Coming to second allegation, we have found that incident under consideration occurred around 5.30 p.m. in the month of August, 2003. This clearly indicates that at the time in question, there was enough light for the people to see the incidents going on around them at that time. Thus, the allegation that PWs could not have seen the incident due to darkness is also found to be without much substance. 51. Secondly, the appellant tries to derail the prosecution case contending that the accused had to kill the deceased chasing him up to the PO on the evening in question since he practiced black magic and since he used to misbehave with his wife. A perusal of the statement of the accused person, recorded under Section 313 Cr.P.C. makes such a position more than clear. 52. In order to make out his plea above, the accused examined himself as DW 1. In his evidence, he states that on the evening, in question, his wife and his daughter were in the house. He was at the place not far away there-from. Suddenly, his daughter came to him running and reported to him that the accused tried to commit sexual assault on his wife. 53. On getting such information, he immediately started running to his house but before he could reach his house, he saw the accused leaving his house. But they met each other near the Navodaya School. On seeing the accused, the deceased started rushing towards him taking a dao out of a bag which he kept hanging in a nearby wall and tried to kill him in order to propitiate Goddess Kali. 54. But they met each other near the Navodaya School. On seeing the accused, the deceased started rushing towards him taking a dao out of a bag which he kept hanging in a nearby wall and tried to kill him in order to propitiate Goddess Kali. 54. Having found him almost being killed by the deceased, he threw a brick at the deceased which hit him on his hand for which the dao in his hand fell down on the ground. He immediately rushed towards the dao and tried to pick it up. In that process, he got captured by the deceased. In order to wriggle out himself from the clutches of the deceased, he started hitting the later. 55. Unfortunately, his blows accidentally hit the deceased on his neck which killed him instantaneously. He never intended to kill the deceased. But such a theory not at all being in tune with his plea, he projected in his examination under section 313 Cr.P.C., gave a death blow to his case that he had to kill the deceased under compulsion in order to protect himself from the assault of deceased. 56. In view of what we have discussed herein before and what have emerged therefrom, we are of the opinion that prosecution has successfully proved that on the evening in question, the accused killed the deceased and he killed him with the intention of causing his death. Being so, we find no infirmity in the judgment, rendered by the trial court to invite any interference from this Court of appeal. 57. In the result the appeal is dismissed. 58. Let LCR be returned. We appreciate the assistance rendered by learned Amicus Curiae in disposing the present appeal. Accordingly we do hereby order the concerned authority to release his professional fee amounting to Rs. 5,000/- at the earliest. Appeal dismissed