JUDGMENT AND ORDER A.C. Upadhyay, J. - This jail appeal is directed against the judgment and order dated 17.9.2007 passed by the learned Sessions Judge, Lakhimpur in Sessions Case No. 27(NL)/05, whereby, the appellant was convicted under Section 302 IPC and sentenced to undergo Imprisonment for life and to pay a find of Rs. 1,000/-, in default to undergo RI for another 3 (three) months. 2. We have heard Ms. Minakshi Bujar Baruah, learned Amicus Curiae, appearing for the appellant and Mr. K.A. Mazumdar, learned Addl. P.P. for the State of Assam. 3. The prosecution story as unfolded in the FIR lodged by Tilak Gogoi revealed that on 13.2.2002 at about 4 P.M., the accused Bhaben Gogoi killed Guneswar Gogoi, the brother of the first informant by Jeura Khari (sharp edged splited bamboo). On receipt of the aforesaid information, a case was registered by the O.C, North Lakhimpur P.S. and investigation was launched. 4. In the course of the investigation, the Investigating Officer carried out inquest of the dead body of the deceased, which was brought to the Police Station by the informant. Thereafter, the dead body was sent to the North Lakhimpur Civil Hospital, for carrying out post mortem examination. The Investigating Officer also visited the place of occurrence and recorded the statement of the witness. 5. The Investigating Officer of the case, on completion of the investigation submitted the charge sheet Ext-4, against the accused appellant alleging commission of offence under Section 302 IPC. 6. The offence alleged, being exclusively triable by the Court of Sessions the case against the accused-appellant was committed to the Court of Sessions for trial. On receipt of the case, for trial, the learned Sessions Judge framed a formal charge under Section 302 IPC, against the accused appellant above named. On reading over and explaining the charge aforesaid, the accused appellant pleaded not guilty and claimed to be tried. 7. During trial, the prosecution side examined as many as 8 (eight) witnesses, who were duly cross examined by the defence counsel. On conclusion of the recording of the prosecution evidence the statement of the accused was recorded by the learned Sessions Judge, in terms of the provision of Section 313 Cr.P.C. The accused appellant took the stand of total denial and further stated that it was his brother Nripen Gogoi, who, in fact had killed the victim Guneswar Gogoi. On conclusion of the recording of the prosecution evidence the statement of the accused was recorded by the learned Sessions Judge, in terms of the provision of Section 313 Cr.P.C. The accused appellant took the stand of total denial and further stated that it was his brother Nripen Gogoi, who, in fact had killed the victim Guneswar Gogoi. In support of his contention, the appellant adduced the testimony of his mother Smti. Nomali Gogoi, as a defence witness. On conclusion of the trial, learned Sessions Judge, convicted the accused-appellant under Section 302 IPC and sentenced him as aforesaid, which has given rise to this appeal from jail. 8. In order to appreciate the argument advanced by the learned counsel for the appellant, as well as respondent-State, wee consider that it would be apposite to marshal the evidence of the prosecution witnesses. 9. The first informant, PW-1, Tilak Gogoi on returning home from office, on the date of occurrence heard a hue and cry towards the house of accused Bhaben Gogoi. On reaching the residence of the accused, Bhaben Gogoi, he found that his brother Guneswar Gogoi, alias Dew Gogoi, had sustained penetrating wound in his abdomen, through which some inner portion of the belly was coming out. Immediately, he brought his brother in a hand-cart to Panigaon PHC. Unfortunately, on his way, his brother succumbed to the injuries. Therefore, instead of taking him to the hospital, the dead body of his brother was brought to Panigaon police out post of North Lakhimpur Police Station. PW-1 accordingly, lodged the FIR, Ext-1. PW-2 is a witness to the inquest report (Ext-2), prepared by PW-5, Sri Jugal Kumar Bhuyan, the Executive Magistrate, North Lakhimpur. 10. Dr. A. Rahman, PW-3, who had performed the post mortem examination of the deceased opined as follows - "Details description of injury - I was deep penetrated wound through and through from flank to flank with entry and exit wound. Entry wound in the left flank. Margin invertyed. 2" x 1 and ½ "area. Small bowel loops are seen coming out. Ext. wound in the right flank. Margin everted. 1" X ½" area. On tracing of the wound - both small and large bowel loops were found to be lacerated. Liver, spleen, kidneys were normal. Both kidneys were lacerated. Bladder and genital organs were normal. There was no dislocation or fracture. Small bowel loops are seen coming out. Ext. wound in the right flank. Margin everted. 1" X ½" area. On tracing of the wound - both small and large bowel loops were found to be lacerated. Liver, spleen, kidneys were normal. Both kidneys were lacerated. Bladder and genital organs were normal. There was no dislocation or fracture. Detail description : It was a male dead body with deep penetrated wound in the abdoman ante mortem in nature. Laceration of bowel loops and both kidneys. Opinion In my opinion, cause of death is shock and haemmorhage as a result of injuries sustained." 11. Tulashi Baruah, PW-6, a Veterinary Field Assistant, is also an eye witness to the occurrence. PW-6 stated in his deposition that on the date of the incident at about 3 to 4 PM, he had gone to the house of the accused for castration of two pigs. In the meanwhile, while PW-6 was sitting there, an unknown person came to the house of the accused in search of the house of one "Nomali". Since the name of the mother of the accused is also "Numali", so accused told the person that he is in the house of Nomali. 12. The said Bipin Konwar then told that person that the said person had come to meet Nomali, the mother of Sri Bipin Konwar. Meantime, the said unknown person disclosed before them that while he was searching the house of Nomali', a boy had beaten him. The accused, asked the said person about the physical appearance of that boy, who had beaten the said person. When the said person gave the description, accused-appellant had come to the conclusion that it was none other than Dow (Guneswar Gogoi) the deceased, who could have committed the mischief. After a little while Dow came through the road in front of the house of accused. Dow had seen the unknown person sitting inside the house of Sri Bhaben Gogoi and he came to the house of accused, and started arguments with that person. At that juncture, Sri Bhaben Gogoi intervened and there was pulling and pushing between Dow and Bhaben Gogoi and in that pulling and pushing, 'Dow' had fallen in a drain, for which the pulling and pushing between him and Bhaben Gogoi stopped. At that juncture, Sri Bhaben Gogoi intervened and there was pulling and pushing between Dow and Bhaben Gogoi and in that pulling and pushing, 'Dow' had fallen in a drain, for which the pulling and pushing between him and Bhaben Gogoi stopped. Dow went away but after going to a little distance, pelted a piece of hard soil towards accused by means of (Katepa), for which there was again pulling and pushing between Dow and accused. PW-6 saw both of them fisting blows on each other. Seeing this, PW-6, went away from there. Later on, he came to know that Dow died. Thus, PW-6 had established that there was pulling and pushing and fisting of blows between the accused and the deceased, Guneswar Gogoi @ Dow in front of the house of accused. After a little while, Guneswar @ Dow was found lying at the place of occurrence in injured condition, having penetrating wound in his stomach, through which the inner part of his belly had come out. 13. So, considering all these, I have no hesitation to hold that the accused, Sri Bhaben Gogoi injured Dow @ Guneswar Gogoi by piercing him on his stomach by a splitted bamboo, for which some portion of the stomach came out through that injury and ultimately Dow @ Guneswar Gogoi, succumbed to the injury caused by the accused. But, as discussed earlier, the accused, Sri Bhaben Gogoi had taken the plea that it was not he, but his brother, Nripen, who had injured Dow @ Guneswar Gogoi for which Guneswar had died. The stand was specifically taken by the accused at the time of giving his statement under Section 313 Cr.P.C., however, in order to substantiate his plea, one defence witness who was his mother Smti. Nomali Gogoi was also examined. 14. DW-1, Smti Nomali Gogoi deposed that one day, an unknown person had came to her house. As soon as the said unknown person arrived in their house, the deceased, Dow had beaten that person in their courtyard. Then accused, intervened, accordingly the unknown person went away from there. After a little while, Dow began to quarrel with the other son of DW-1, Sri Nripen Gogoi. In the quarrel, Dow had sustained injury on his stomach. Thus, DW-1 stated that for the injury sustained by the deceased her son, Bhaben Gogoi is not responsible. Then accused, intervened, accordingly the unknown person went away from there. After a little while, Dow began to quarrel with the other son of DW-1, Sri Nripen Gogoi. In the quarrel, Dow had sustained injury on his stomach. Thus, DW-1 stated that for the injury sustained by the deceased her son, Bhaben Gogoi is not responsible. None the less, during cross examination of DW-1, it transpired that the present whereabouts of said Nripen Gogoi was not known to her, for last 4/5 years and she is now living with her son, accused Sri Bhaben Gogoi. During cross examination, DW-1 had deposed that police visited her house several times, in search of accused, Sri Bhaben Gogoi, but at that time, she had not disclosed anything to police that her son, Sri Bhaben Gogoi was not involved in the occurrence. 15. The presence of Sri Tulsi Baruah (PW-6) was also confirmed by DW-1. Since Smti. Nomali Gogoi (DW-1) is the mother of accused, and she is now living on the earning of her said accused son, in such circumstances, it would be quite natural that a mother would try to save his son by any means fair or foul. 16. Upon analysis of the evidence on record, we find that there was a quarrel between the accused and the deceased Dow at the time of occurrence. And in that quarrel, the accused, had pulled out a split bamboo and pierced the stomach of the deceased Dow, as a result of which, Dow @ Guneswar Gogoi died. Though the accused-appellant tried to project that it was his brother Nripen who had killed the deceased, however such exculpatory statement can not be relied on to absolve and exonerate the accused from the charge of murder. 17. From the facts and circumstances discussed above, it is distinctly clear that there was no premeditation or previous animosity between the accused and the deceased. The fight erupted suddenly on a non issue. Unfortunately, a small disagreement between two rustic villagers reached such a point that they lost their control over their body and mind. However, while assaulting the deceased the accused did not use any conventional weapon of assault. 18. The fight erupted suddenly on a non issue. Unfortunately, a small disagreement between two rustic villagers reached such a point that they lost their control over their body and mind. However, while assaulting the deceased the accused did not use any conventional weapon of assault. 18. Undoubtedly, injury had been caused on the vital part of the body of the deceased, but it must also be borne in mind that when a person loses his sense he may act violently and that by itself may not be a ground to be considered against him, while determining the nature of the offence. Each case is to be considered on its own facts, however, taking a all-inclusive view of the matter. In such a case, the entire attending circumstances must be taken into consideration in order to find out the nature of the actual offence committed. 19. In State, Pulicherla Nagaraju alias Nagaraja Reddy v. State of A.P., AIR 2006 SC 3010 , the Apex culled out some circumstances to decide the pivotal question of intention to cause death, with care and caution, as that will decide whether the case falls under Section 302 or 304 Part I or 304 Part II. The relevant extract of the observation reads as follows: "Many petty or insignificant matters - plucking of a fruit, straying of cattle, quarrel of children, utterance of a rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Usual motives like revenge, greed, jealousy or suspicion may be totally absent in such cases. There may be no intention. There may be no premeditation. In fact, there may not even be criminality. At the other end of the spectrum, there may be cases of murder where the accused attempts to avoid the penalty for murder by attempting to put forth a case that there was no intention to cause death. It is for the courts to ensure that the cases of murder punishable under Section 302, are not converted into offences punishable under Section 304 Part I/II, or cases of culpable homicide not amounting to murder, are treated as murder punishable under Section 302. It is for the courts to ensure that the cases of murder punishable under Section 302, are not converted into offences punishable under Section 304 Part I/II, or cases of culpable homicide not amounting to murder, are treated as murder punishable under Section 302. The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances: (i) nature of the weapon used; (ii) whether the weapon was carried by the accused or was picked up from the spot; (iii) whether the blow is aimed at a vital part of the body; (iv) the amount of force employed in causing injury; (v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight; (vi) whether the incident occurs by chance or whether there was any premeditation; (vii) whether there was any prior enmity or whether the deceased was a stranger; (viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation; (ix) whether it was in the heat of passion; (x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner; (xi) whether the accused dealt a single blow or several blows. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention." 20. The Apex Court has re-iterated the same view in Sridhar Bhuyan v. State of Orissa, AIR 2004 SC 4100 ; and Gali Venkataiah v. State of Andhra Pradesh, AIR 2008 SC 462 . 21. The Apex Court has re-iterated the same view in Sridhar Bhuyan v. State of Orissa, AIR 2004 SC 4100 ; and Gali Venkataiah v. State of Andhra Pradesh, AIR 2008 SC 462 . 21. In the present case (i) nature of the weapon used was a split bamboo, which is not all a conventional weapon of assault ; (ii) the weapon was not carried by the accused, it was picked up from the spot; (iii) the blow was aimed at a important part of the body; (iv) the amount of force employed in causing injury; (v) the act was in the course of sudden quarrel and sudden fight (vi) the incident occurred by chance and there was no premeditation; (vii) admittedly there was no prior enmity and the occurrence, as per the statement of the witnesses took place in the heat of passion; (ix) the accused inflicting the injury did not take undue advantage (x) the accused dealt a single blow. 22. Certainly, only one injury had been caused on the vital part of the body of the deceased, but it must also be lost sight of that when a person loses his logic he may act brutally and that by itself may not be a reason to be considered against him, while defining the nature of the offence. Each case is to be considered on its own facts, however, taking an all-inclusive outlook of the matter. In such a case, the entire attending circumstances must be taken into consideration in order to find out the nature of the actual offence committed. (See: Kailash v. State of M.P., ( 2006 (11) SCC 420 ; and Karuppusamy & Anr. v. State of Tamil Nadu, (2006) 11 SCC 459 .) 23. After having given thoughtful consideration on the issue we hold that alteration of conviction of the appellant from Section 302 IPC to Section 304 Part-I IPC is required, in the facts and circumstances of the case, and we do so accordingly. Ends of the justice would be met by awarding ten years rigorous imprisonment to the appellant. The appeal is partly allowed in terms of the above. Ordered accordingly. 24. Send back the lower Court records, together with a copy of this order for necessary communication to the prison, in which the accused appellant is lodged. 25. Before parting with the judgment, we would like to record our appreciation to Mrs. The appeal is partly allowed in terms of the above. Ordered accordingly. 24. Send back the lower Court records, together with a copy of this order for necessary communication to the prison, in which the accused appellant is lodged. 25. Before parting with the judgment, we would like to record our appreciation to Mrs. A. Bujorbaruah, learned Amicus Curie, for rendering her valuable assistance to the Court. We direct the High Court Legal Services Authority to pay a sum of Rs. 3,500/- to her, as professional fees.