JUDGMENT Indira Shah, J. 1. The Judgment and order dated 17.08.2007, passed by the learned Sessions Judge, Sivasagar, in Sessions Case No. 42(S-S)/2005, whereby the accused/appellant has been convicted under Section 302 I.P.C. and sentenced to undergo imprisonment for life and also to pay fine of Rs.1,000/-, in default of payment of fine, to undergo RI for another 6 (six) months, has been challenged in this appeal. The prosecution case, in brief, is that, Nageswar Murari and Tileswar Murari, two brothers were residing in the same compound. On 20.07.2004, they had some quarrel between them. Tileswar Murari inflicted dao blows on Nageswar Murari causing his death. FIR was lodged by the father of the deceased. The Officer-in-Charge, Dimu Police Station registered a case. During the investigation, a "khukuri" was seized by the Police on being produced by the wife of the accused. 2. The accused surrendered before the Police and he was brought to the court, to record his confessional statement but he declined to confess before the Magistrate. On completion of the investigation, Police laid charge-sheet under Section 302 IPC against the accused/appellant. 3. During the trial, altogether, 9 (nine) witnesses were examined by the prosecution. Thereafter, the statement of accused under Section 313 Cr.P.C. was recorded, wherein the accused denied the allegation leveled against him and pleaded that on the day and time of occurrence, he was away from his house and stayed in the house of one Gangaram Murari (DW-1). The said Gangaram Murari was examined as defence witness. On completion of trial, the accused was held guilty under Section 302 IPC and accordingly, he was convicted and sentenced, as stated above. 4. We have heard Ms. Rita Boro Bora, learned Amicus Curiae, appearing on behalf of the appellant as well as Mr. Z. Kamar, appearing on behalf of the State respondents. 5. Learned Counsel, appearing for the appellant, has submitted that none of the witnesses saw the occurrence. The accused has been convicted on the basis of circumstantial evidence. The incident occurred due to sudden provocation. The wife of the accused (PW-4) stated that the as the deceased was a man of bad character, in absence of her husband, the deceased used to talk to her in filthy language. She disclosed the behaviour of the deceased to her husband and thereafter, there was quarrel between the deceased and the accused. The wife of the accused (PW-4) stated that the as the deceased was a man of bad character, in absence of her husband, the deceased used to talk to her in filthy language. She disclosed the behaviour of the deceased to her husband and thereafter, there was quarrel between the deceased and the accused. The behaviour of the deceased provoked the accused and the accused inflicted injury by means of a 'khukuri'. 6. Learned Public Prosecutor, has submitted that the prosecution has established its case beyond all reasonable doubt. The motive for the crime has been established by the prosecution. The injuries suffered by the deceased indicate that that the accused had definite intention to cause death of the deceased. That accused was rightly convicted under Section 302 I.P.C. and therefore on the judgment passed by the learned trial Court needs no interference. 7. Doctor Dilip Kumar Baruah (PW-8), held post-mortem examination on the deadbody of Nageswar Murari and found large incised wound placed obliquely on right side of the neck extending from above to downward from back to front. Size of the wound is 5" X 1/2 " x 2 1/2" all the mussels and large vassals including right carratidorti. Clothed blood present in and around the wound. Cernium Health- on Thorax. Heart & abdomen are healthy. In the opinion of the Doctor, the death was due to shock and hemorrhage from the injuries, sustained by the deceased. The finding of the Doctor was not challenged by the defence. There is no dispute that the death of the deceased was homicidal in nature. 8. PW-1 Md. Aliur Rahman, PW-2 Thartha Murari, PW-5 Madan Murari and PW-7 Atul Handique all are reported witnesses. They heard that the accused caused death of the deceased. The weapon of assault was seized in presence of PWs-1,2, 3 & 5. PW-2 Thartha Murari is the father of the accused as well as the deceased. He lodged the FIR. He also stated that the accused voluntarily appeared in the Police Station. PW-2 alleged that the deceased Nageswar Murari used to create trouble under the influence of liquor. The accused Tileswar Murari told him that the deceased taking advantage of his absence had done bad acts with his wife and when PW-2 warned his deceased son, the deceased assaulted him. 9. PW-4 Gita Murari is the wife of the accused. PW-2 alleged that the deceased Nageswar Murari used to create trouble under the influence of liquor. The accused Tileswar Murari told him that the deceased taking advantage of his absence had done bad acts with his wife and when PW-2 warned his deceased son, the deceased assaulted him. 9. PW-4 Gita Murari is the wife of the accused. It appears from her evidence that prior to the occurrence, there was altercation between the accused and the deceased. Hearing the commotion, she came out and saw the deceased lying in a pool of blood in the house compound of the deceased. She stated that the accused then fled away from the house. She further stated that the dao belonged to the deceased. In her cross-examination, she admitted that the character of the deceased was not good and in absence of her husband, deceased used to come and talk to her in filthy language. He was in habit of quarrelling with his father also. 10. Corroborating the evidence of PW-4, PW-6, Lilimay Murari (wife of the deceased) deposed that PW-4 (wife of the accused), called her and told that Tileswar (accused) had cut Nageswar. PW-6 saw the wife of the accused holding Tileswar and snatching away the dao from his hand. Her husband Nageswar was lying near Madan Orang?s courtyard after sustaining dao blows. The accused managed to come out of clutches of his wife and flee away. 11. PW-5, Madan Orang heard hue and cry and when he came out of his house, he saw Nageswar Murari lying inside his compound with injuries on his person. He reported the incident to VDP Secretary and in turn, VDP Secretary along with others came to the place of occurrence. Thereafter, the Police was informed who held inquest on the deadbody of the deceased in presence of PW-5. 12. The evidence of PWs-4 and 6 that there was altercation between the accused and the deceased prior to the incident, has remained unrebutted. PW-4 and others saw the deadbody of the deceased lying in a pool of blood immediately after the altercation. PW-4 categorically stated that there was altercation between the accused and the deceased prior to the incident. She also saw the accused at the place of occurrence. PW-6 saw PW-4 holding her husband and she was trying to snatch away the dao from his clutches. PW-4 categorically stated that there was altercation between the accused and the deceased prior to the incident. She also saw the accused at the place of occurrence. PW-6 saw PW-4 holding her husband and she was trying to snatch away the dao from his clutches. The accused ran away and subsequently, he surrendered before the Police. 13. The law relating to circumstantial evidence is well settled. In the case of Lokeman Shah & another - versus- State of West Bengal, (2001) 5 SCC 235 ; State of Punjab - versus- Sucha Singh & others, (2003) 3 SCC 153 ; Sikandar Ali- versus- State of Assam, 2010 (3) GLJ 679; Bhim Singh - versus- State of Haryana, (2002) 10 SCC 461; Ram Narayan Popli - versus- Central Bureau of Investigation, (2003) 3 SCC 641 ; Paramjeet Singh @ Pamma -versus- State of Uttarakhand, 2011 Cri.L.J. 663 it has been held that in case of circumstantial evidence, the conclusion of guilt to be drawn should be fully established. 14. In the case of Sharad Birdhichand Sarda -vs- State of Maharastra (1984) 4 SCC 116 while dealing with circumstantial evidence, it has been held that the onus of the prosecution to prove that the chain is complete and the infirmity of lacuna in the prosecution cannot be cured by a false defence or plea. The conditions precedent before conviction could be based on circumstantial evidence, must be fully established. They are: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. ....the circumstances concerned "must or should" and not " may be" established..... (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. 15. In this case, PWs 4 and 6 did not see the accused inflicting dao/khukuri placed on the deceased. 15. In this case, PWs 4 and 6 did not see the accused inflicting dao/khukuri placed on the deceased. PW-6 saw the accused along with dao at the place of occurrence and the deceased lying in a pool of blood. PW-4 saw the accused at the place of occurrence and the deceased lying in injured condition. Both stated that prior to the incident, there was altercation between the accused and the deceased. 16. The accused, in this case, has taken plea of alibi. According to him, on the date and time of occurrence, he was in the house of DW-1. He adduced the evidence of DW-2 but the DW-1 did not state that the accused was in his house on the date and time of occurrence. The burden of proving commission of offence by the accused so as to fasten the liability of guilt on him remains on the prosecution and could not be lessened by the mere fact that the accused had adopted the defence of alibi. The plea of alibi taken by the accused needs to be considered only when the burden on the prosecution has been discharged satisfactorily. Once the prosecution succeeds in discharging its burden then it is incumbent on the accused taking the plea of alibi to prove it with certainty so as to exclude the possibility of his presence at the place and time of occurrence. 17. In this case, following incriminating circumstances have emerged from the evidence on record: (i) Death of the deceased was homicidal in nature; (ii) Prior to assault on the deceased, there was an altercation between the accused and the deceased in their courtyard; (iii) The accused, after the incident, surrendered before the Police; (iv) There was motive on the part of the accused to commit the offence; (v) The deceased talked to the wife of the accused in filthy language which infuriated him. (vi) The accused had taken false plea of alibi. 18. It appears from the evidence of PWs 2 and 4 that the accused killed the deceased as he was deprived of self control by the overt-role played by the deceased. It transpires that the accused, in this case, killed the deceased, because he was provoked and was deprived of self control. 18. It appears from the evidence of PWs 2 and 4 that the accused killed the deceased as he was deprived of self control by the overt-role played by the deceased. It transpires that the accused, in this case, killed the deceased, because he was provoked and was deprived of self control. Exception (4) of Section 300 IPC reads as follows:- Exception 4- Culpable homicide is not murder if the offender, whilst deprived of the power of self-control, by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident. 19. Being exception, the burden of proving of circumstances, covered by explanation is on the accused. Further, the accused failed to take any such plea that he lost control over himself and caused the death. Although the burden lies on the accused to prove the plea of exception, the burden is not that heavy and can be gathered from the description of the occurrence and the defence may succeed if it can show that the defence version of the incident is probable one. 20. In this case, in view of evidence, led by PWs 2 and 4, the defence version may be probable and Exception (4) of Section 300 IPC is applicable. Thus, the accused ought to have been convicted under Section 304 (Part-I) I.P.C. 21. In view of the above, the conviction of accused under Section 302 IPC is modified and converted into the conviction under Section 304 (Part-1) IPC. The sentence to suffer life imprisonment is accordingly, modified to the extent that the accused shall undergo RI for 7 (seven) years and pay the fine of Rs.1,000/- in default the payment of fine, he shall further undergo RI for 2 (two) months. 22. In view of judgment passed in Criminal Appeal No. 93(J)/2005 and in the light of judgment passed in the case of Binod Karmakar -Vs- State of Assam 2012(1) GLT 693 with regard to compensation to the dependants of victim under Section 357A Cr.P.C. as an interim measure the State Government is directed to deposit an amount of Rs.50,000/- (Rupees Fifty Thousand) only with the District Legal Service Authority, Sivasagar. The District Legal Services Authority, on receipt of the said money, shall make an enquiry to ascertain as to whether, there is dependent (s), who suffered loss and injury as a result of death of the deceased and also if such dependent(s) or legal representative(s) need any rehabilitation. Upon such enquiry, if it is found that the dependent(s), if any, need rehabilitation, then the District Legal Services Authority shall initially release the said interim amount and thereafter direct payment of adequate compensation, as may be prescribed by the scheme to be prepared by the State Government. It is made clear that if the District legal Services Authority, after due enquiry, arrive at the findings that there is no dependent(s) or that the dependent(s) of the deceased/victim does not require any rehabilitation, then the District Legal Services Authority, shall refund the said amount of Rs.50,000/-, without delay, in favour of the State Government. With this modification, the appeal is partly allowed.