JUDGMENT S.R. Sen, J. 1. The present appeal is directed against the Judgment & Order dated 03.10.2007 passed by the learned Sessions Judge No. 2 (FTC) Tinsukia in Sessions Case No. 17Q(T)/2005. The background facts, in a nutshell, are as follows:- 1. That, on 31.08.2001 at about 8.00 p.m., accused Bhadra Surang @ Paskel and Jiten Ghatowar armed with dao shouted before the house of informant, to which, the son of informant, Sri Madan Bhumij came out and protested. Accused Jiten Ghatowar dashed Madan towards the field and assaulted him with the weapon and thereby caused grievous injury. Madan raised hue and cry, as a result, elder son of the informant came out of the house and accused Bhadra Surang stopped him. In the mean time, informant's wife, Smt. Almoni also came out and protested against the act of the accused persons. Accused Bhadra pushed her down and chased Kamal Bhumij towards the field and assaulted him with a sharp weapon causing injury over his neck, as a result of which, Kamal died and wife of the informant, Smt. Almoni Bhumij sustained injury. On 01.09.2001 at about 12.10 a.m., an ejahar was lodged with Kakapathar Police Station and accordingly, the case was registered as appeared from the record under Section 302/326/325/34, IPC On being committed, the case was tried by learned Additional Sessions Judge No. 2 (FTC), Tinsukia as Sessions Case No. 170(T)/2005. 2. From the judgment dated 03.10.2007 passed by the learned Additional Sessions Judge (FTC), it appears that the learned Court examined as many as 13 numbers of witnesses as well as 2 numbers of defence witnesses and, further appears that prosecution also exhibited 12 numbers of Exhibit before the learned Additional Sessions Judge. Learned Additional Sessions Judge in conclusion of the trial, convicted the accused Bhadra Surang @ Paskel under Section 302/326/323, IPC and acquitted other accused Jiten Ghatowar from the charge. 3. In support of the appeal, learned counsel, Ms. D. Borgohain (amicus curiae) submitted that in this instant case prosecution has failed to establish the charge against the accused person beyond doubt. 3. In support of the appeal, learned counsel, Ms. D. Borgohain (amicus curiae) submitted that in this instant case prosecution has failed to establish the charge against the accused person beyond doubt. She also further contended that Section 302, IPC has not been established against the accused at best accused person are committed crime under Section 304 Part I IPC She further submitted that the learned Additional Sessions Judge on the basis of confessional statement had convicted the accused and there is no sufficient evidence came on record to support the prosecution case and further submitted that confessional statement has been retracted and plea of alibi has taken which has been ignored by the Trial Court. 4. On the other hand, learned counsel for the State, Mr. K. Majumder supported the impugned judgment and submitted that the learned Court of Additional Sessions Judge has passed the judgment correctly, so appeal may be dismissed. 5. On careful perusal of the ejahar (Exhibit 9), we find that there is nothing wrong with the ejahar and the same is in order and in time. 6. From the deposition of PW 1, it is apparent and clear that accused Bhadra had cut the neck of his father Kamal Bhumij (herein after referred deceased) with a 'khamti' (long dao) and as a result deceased died and accused also injured Madan, the uncle of PW 1 by blows. On perusal of the cross-examination on record, no rebuttal is noticed pertaining to the facts and incidents. 7. From the deposition of the P.W. 2, it appears that he is not the eye witness and he has given deposition that he heard that accused Bhadra had injured deceased Kamal Bhumij and Madan Bhumij with dao. In cross-examination, he has ascertained that accused was not on duty, at the time of incident. 8. From the deposition of PW 3, it is understood and appears that she saw Bhadra to chase the deceased Kamal and cut him in the neck. Madan, the brother of the deceased also sustained injuries. There is no rebuttal noticed in the cross-examination. 9. The deposition of PW 4 corroborates the deposition given by P.W. 3 and further deposed that even Bhadra threatened her also to cut. In cross-examination, no rebuttal noticed. 10. Madan, the brother of the deceased also sustained injuries. There is no rebuttal noticed in the cross-examination. 9. The deposition of PW 4 corroborates the deposition given by P.W. 3 and further deposed that even Bhadra threatened her also to cut. In cross-examination, no rebuttal noticed. 10. From the deposition of PW 5, it appears that when he came out from his house, he heard from one Monsuk that his paternal uncle Madan have been cut and he saw Madan lying in injured condition and also saw the dead body of the deceased lying in a drain near their house and he proved the inquest report, as Exhibit 1. So, from his evidence, it appears that he is not eye witness of the occurrence, but, he was acquainted with the facts and incidents. 11. From the deposition of the PW 6, it appears that he has sustained a serious injury due to cut caused to him by khamti carried by the accused as well as by blows. However, a total scrutiny of both chief and cross-examination, it is apparent that he had not noticed or opportunity to see that accused had killed the deceased, as he himself was injured and remain senseless for 2/3 days in a hospital and learnt the incident only after returned from hospital. 12. From the deposition of PW 7, it is also apparent and clear that accused Bhadra and Jiten killed the deceased by cutting him with dao and also caused injury to Madan and herself with the help of a dao. 13. From the deposition of PW 8, it appears that he being a police constable was on duty at Kakapathar police station on 01.09.2001 and the accused Bhadra along with another man came to the Thana at about 6 or 7 o'clock in the morning and produced one khamti (dao) and stated that he had cut a man with the said dao, which police seized and proved the seizure list, as Exhibit 2 and 2/1, his signature. 14. From the deposition of PW 9, it is understood that he being a Circle Officer at Doomdooma Revenue Circle prepared the inquest report and while preparing the inquest, he noticed cut injury on the left side of the neck of the dead body and prepared the inquest report and proved the same, as Exhibit 1 and his signature by Exhibit 2. No serious rebuttal noticed in the cross-examination. 15. The deposition of PW 10 speaks that she being S.DJ.M., recorded the confessional statement of the accused person, who confessed voluntarily and proved the confessional statement, as Exhibit 6 and the signature of accused as Exhibit 6/9 and 6/10 respectively. 16. From the deposition of P.W. 11, who is a doctor conducted the post mortem on the dead body. It appears that during post mortem, he found cut throat injury as follows:- Injury: One cut throat injury 8 cm 4 cm. x soft tissues and thyroid cartilage deep present on upper part of the left side of neck from midline towards left side cutting skin and sub-cateneous tissues, vessels and nerves and muscles on left side and left part of thyroid cartilage and also the left side of body of third cervical vertebrae and corresponding spinal code. 14.12.2006. Bleeding from the wound was present. Cranium and spinal canal: Scalp and skull healthy. 3rd cervical vertebrae cut and rests are healthy. Membrance and brain found healthy and pale looking. Spinal code cut alongwith 3rd cervical vertebrae. Thorax: All thorasic and abdominal organs found healthy. The stomach contains undigested rice and vegetables emitting no any specific smell. 17. In his opinion, doctor made it clear that the cause of death was haemorrhage and shock due to cut injury sustained on the neck by heavy sharp cutting weapon and homicidal in nature and proved the post mortem report, as Exhibit 7, 7/1 his signature and Exhibit 1 is the inquest report and Exhibit 8 is the dead body challan and his signature therein as Exhibit 8/1. From his deposition, it also appears and understood that on seeing the material Exhibit 1, he has opined before the learned Court below that it can cause such injury sustained on the dead body. 18. The deposition of PW 12 supports the deposition given by the different witnesses in our aforesaid discussion. 19. PW 13 is a doctor, who examined the injured Madan Bhumij and Almoni Bhumij and opined that- 1. Deep cut wound oblique over forehead extending upto the left eyebrow, size 5" X 2" X bone deep, 2. Deep cut wound over left temporal region oblique size 6" X 2" X bone deep. Both the wounds were fresh and bleeding profusely. They have been caused by sharp edged weapon and were of grievous nature. Deep cut wound oblique over forehead extending upto the left eyebrow, size 5" X 2" X bone deep, 2. Deep cut wound over left temporal region oblique size 6" X 2" X bone deep. Both the wounds were fresh and bleeding profusely. They have been caused by sharp edged weapon and were of grievous nature. The patient was referred to Dental Central Hospital at 11.30 p.m. for treatment. On examination Smt. Alomani Bhumij, I found as follows:- 1. Contusion, abrasion over left malar region, 2. Lacerated wound over right ring finger. The wounds were fresh caused by blunt edged weapon and are not of a grievous nature i.e., of simple nature. 20. Further perusal of the statement of the accused under Section 313, Cr PC, we did not find anything to record specially or gives any benefit to the accused. 21. Further from the record, it appears that accused has examined two witnesses for his defence. 22. From the deposition of the D.W. 1, it appears that he had issued a certificate showing that the accused was on duty on the day of incident from 2.00 p.m. to 10. P.m. and exhibited as Exhibit Ga. But, in the cross-examination, he admitted that he has no knowledge about the register produced before the Court belonged to which year and he had no personal knowledge whether the accused was on duty or not, on that particular date and time, in question. Therefore, we find there is no basis to rely on the deposition given by D.W. 1 safely. 23. Similarly, the deposition of D.W. 2 is also cannot be considered safely. As such, we are unable to consider the plea of alibi. 24. After considering the entire evidence as discussed above, there remains no doubt in our mind that the prosecution has been able to establish the guilt. There is direct evidence of PW 1 (Masuk @ Monsuk Bhumji) who is the son of the deceased. His testimony has remained unshaken in the cross-examination. The said evidence is corroborated inter alia by the direct evidence of PW 3 (Sombari Bhumji) wife of brother of the deceased, whose husband was also injured in the incident. PW 4 (Kuili Bhumji) widow of the deceased is also an eyewitness whose evidence is reliable and lends full support and corroboration to the testimony of PW1 and PW 3. The said evidence is corroborated inter alia by the direct evidence of PW 3 (Sombari Bhumji) wife of brother of the deceased, whose husband was also injured in the incident. PW 4 (Kuili Bhumji) widow of the deceased is also an eyewitness whose evidence is reliable and lends full support and corroboration to the testimony of PW1 and PW 3. PW 7 (Alomoni Bhumji) is also an eyewitness, who is mother of the deceased and a natural witness. Thus, there are four eyewitnesses PW 1, PW 3, PW 4 and PW 7 who have fully supported the case of the prosecution. Apart from the testimony of the said witnesses, there is a judicial confession made by the accused, Ext. 6, before PW 10, Sub-Divisional Judicial Magistrate, Tinsukia. In view of this overwhelming evidence, which does not suffer from any infirmity, the irresistible conclusion is that the case of the prosecution stands proved beyond any doubt. 25. Now question remains before us, whether this is a case of culpable homicide or murder. To answer this question, we have gone through the judgment given by Hon'ble Supreme Court in the case of Rajinder v. State of Haryana, reported in 2006 AIR SCW 2987 and the said judgment also relied upon by the Division Bench of this High Court in a case Amolok Singh v. State of Tripura, reported in 2008 (4) GTL 631, which is read as hereunder:- 36. The distinction between culpable homicide amounting to murder as laid down under Section 300, IPC and culpable homicide not amounting to murder under Section 299 for both the offence, intention and knowledge are the important features to be taken into consideration by the Court of law based on certain circumstances of each case. In the case of Rajinder (supra) the Apex Court discussed about culpable homicide and murder as well as distinction between the aforesaid two offences. In para 16 of the said report the Apex Court held as under: 16. The academic distinction between 'murder' and 'culpable homicide' not amounting to murder has always vexed the Courts. The confusion is caused, if Courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minute abstractions. The academic distinction between 'murder' and 'culpable homicide' not amounting to murder has always vexed the Courts. The confusion is caused, if Courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minute abstractions. The safest way of approach to the interpretation and application of these provisions seems to be keep in focus the keywords used in the various clauses of Sections 299 and 300. The following comparative table will be helpful in appreciating the points of distinction between the two offences: Section 299 Section 300 A persons commits culpable homicide if the act by which the death is caused is done. Subject to certain exceptions culpable homicide is murder if the act by which the death is caused is done. INTENTION (a) With the intention of causing death; or (1) With the intention of causing death, or (b) With the intention of causing such bodily injury as is likely to cause death; or (2) With the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused; or (c) With the knowledge of that the act is likely to cause death. (3) With the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death; or KNOWLEDGE (C) With the knowledge that the act is likely to cause death. (4) With the knowledge that the act is so imminently dangerous that it must in all probability caused death or such bodily injury as is likely to cause death, and without any excuse for incurring the risk of causing death of such injury as is mentioned above.” 26. The conduct and action of the accused going in front of the house of the deceased with a dao and to cut the deceased in the neck itself proves accused had an intention to murder the deceased. 27. The conduct and action of the accused going in front of the house of the deceased with a dao and to cut the deceased in the neck itself proves accused had an intention to murder the deceased. 27. After a careful reading and scrutiny of the evidence, in our aforesaid discussion and taking into consideration, the guideline framed in Rajinder case (supra), we find that this is a fit case, which comes within the parameter of 302 as in our conscious view, prosecution evidence have succeeded to establish the charge of murder against the accused Bhadra @ Paskel. We are unable to accept the submission made by the learned counsel for the convict/appellant. 28. Therefore, after considering all the pro and cons and evidence on record, as discussed above, we do not find any reason to interfere with the impugned judgment and order dated 03.10.2007 passed by the learned Additional Sessions Judge (FTC) convicting and sentencing the appellant. 29. The appeal is dismissed. Registry to return back immediately lower Court records. Appeal dismissed.