Judgment : Girish Chandra Gupta, J. The subject matter of challenge in this appeal is a judgment and order dated 28.07.2011 passed by the learned Additional Sessions Judge, Andaman and Nicobar Islands, Port Blair in Sessions Case No.06 of 2011 connected with Sessions Trial No.06 of June, 2011 (State Vs. Sujan Barla) by which the learned Trial Court convicted the sole accused of the offence punishable under section 302 of the Indian Penal Code. By an order dated 16.08.2011 the convict was sentenced to rigorous imprisonment for life with a fine of Rs.5000/-, in default, to suffer further rigorous imprisonment for two years. Challenging the aforesaid judgement and order of conviction, the present appeal was filed by the convict. Mr. Arul Prasanth, learned advocate was engaged by this Court to represent the appellant. Mr. Prasanth has drawn our attention to the following findings arrived at by the learned Trial Court: “With all these, it is to say that prosecution has proved the case beyond all reasonable doubt that death of victim Xavier has actually taken place and the death has been caused by and in consequences of the act of accused Sujan Barla and the act of the accused was done with the intention of causing death, and having taken the version of both PW 1 and PW 2 eye-witnesses, and others and also having taken the matter of motive on the part of the accused as proved above, it is further to say that accused decided to eliminate victim Xavier as soon as accused was chastised by victim Xavier holding authority of supervisorship and for this purpose he started mixing with the victim exposing himself to be extremely friendly to him and immediately before occurrence he started making friendly talks with the victim being armed with a heavy dao (Mat Exbt. II) and in the midst of such friendly behavior, he (accused ) cut the neck of Xavier and it was seen by eye-witnesses PW 1 Duti Guwala and PW 2 Anuranjan Minj and circumstances have appeared that accused Sujan Barla committed the murder of victim Xavier Soreng in a very inhumane and in an extreme cruel manner.” Mr.Prasanth contended that the findings recorded by the learned Trial Court as regards the alleged chastisement by the victim Xavier or as regards any conspiracy allegedly hatched by the appellant or as regards any alleged fake friendship allegedly resorted to by the appellant with the motive of killing the victim Xavier are all figments of imagination, for which there is no foundation in the evidence. He submitted that it is surprising that the learned Trial Court came to the conclusion drawing on its imagination rather than looking into the records of the case. He drew our attention to the First Information Report. He referred to the following sentence appearing from the FIR: “I think due to negligence of duty Xavier Soreng scolded Sujan Barla several times. Keeping this in mind in anger, Sujan Barla intentionally hit Xavier Soreng with the rounded dah. Due to which his neck was incised and died.” The defacto complainant Duti Guwala was examined as PW.1. He did not in his deposition, allege that the victim ever chastised or scolded the appellant nor did he depose that the accused nurtured any grievance against the victim. On the contrary the evidence adduced by him in the examination-in-chief is as follows: “I cannot say why the accused Sujan Barla committed murder of Xavier by cutting him but immediately before the occurrence both of them were talking to each other in my presence.” The other only eye witness in the case is PW.2, who deposed as follows: “I cannot say as to why accused committed murder of Xavier.” Admittedly, there is no other eye witness in this case. Neither of the eye witnesses made any whisper which can be used to back up any of the aforesaid findings of the learned Trial Court. Neither of the eye witnesses made any whisper which can be used to back up any of the aforesaid findings of the learned Trial Court. On the contrary, the wife of the victim has given a clean chit to the appellant which reads as follows: “During doing works as I know there was no dispute between my husband and the accused.” Mr.Prasanth contended that the wife being the closest person to the victim, examined in this case, has the best knowledge as regards any animosity between the accused and her husband. Nobody else could have any better knowledge nor did anyone depose anything with regard thereto. He drew our attention to the evidence of PW.6, who is a coworker, who deposed in the cross-examination as follows: “Fact that before the occurrence accused did not have any quarrel with anyone. He also drew our attention to the evidence of PW.7 who is also a co-worker, who deposed in his cross-examination as follows: “I did not see accused quarreling with anyone earlier.” He submitted that there is, as such, plethora of evidence of an unimpeachable nature to show that there was neither any enmity between the accused and the victim nor for that matter the appellant was of a garrulous nature. The witnesses deposed that the appellant did not have any quarrel with anyone. The evidence which has transpired is that the accused and the victim were talking to each other sitting on the machan (elevated platform) in the farm house itself which is a coconut plantation. Suddenly, PW.1 and PW.2 heard the cries of the victim and the accused was seen giving the blow. The Autopsy Surgeon has deposed as follows: “After examination I found the following external injury i.e. one single incised wound present on the left supra clavicle region just near the left shoulder bone extending from the right shoulder up to the right sternocledo joint measuring 5 inches in length and 3 inches in breadth and 2 inches in depth, cutting all the internal structures namely left internal jugular veins, left internal carotid artery and cutting the stenocledo mustoid muscle.” From the post mortem report also it appears that a single incised wound was found in the body of the deceased which proved fatal. Mr.Prasanth, therefore, contended that the appellant had no intention to commit any murder. Mr.Prasanth, therefore, contended that the appellant had no intention to commit any murder. While two persons were talking to each other, the victim must have provoked the appellant which took an ugly turn and culminated in the fateful incident which nobody had contemplated. He, therefore, contended that this cannot be a case of murder under section 300 of the Indian Penal Code. Mr.Mandal, learned Public Prosecutor, in his usual fairness, did not dispute the fact that the aforesaid findings assailed by Mr.Prasanth are not really based on evidence. He, however, contended that some of the witnesses have deposed in Court that there might have been some dispute because the deceased was the supervisor and the appellant a watchman. Therefore, in the discharge of their respective duty, there may have been some conflict which may have enraged the accused which led him to commit the murder. He, however, left the matter at that. We have considered the rival submissions advanced by the learned advocates appearing for the parties and are of the opinion that there is no evidence even to suggest that there was any pre-meditation on the part of the accused/appellant to either kill the victim or even to hurt the victim. There is evidence to show that they were talking to each other. Suddenly the victim cried for help. We can, in the circumstances infer, regard being had to the common course of human conduct, that something went wrong during the conversation between the accused and the victim which might have infuriated the appellant, which ultimately led to a fight between them. The victim cried for help, the witnesses rushed to rescue him but the deadly blow was inflicted in the heat of passion. The offender does not appear to have taken any undue advantage of the situation. In other words, whatever he did, he did out of the heat of passion and not by design. Therefore this is a case squarely coming within the ambit of section 304 of the Indian Penal Code and not under section 302 of the Indian Penal Code. The conviction is as such stepped down under section 304 of the I.P.C. Consequently, the punishment awarded by the learned Trial Court is set aside and is substituted by rigorous imprisonment for ten years as also a fine of Rs.5000/-, in default, to undergo a further simple imprisonment for two years. The conviction is as such stepped down under section 304 of the I.P.C. Consequently, the punishment awarded by the learned Trial Court is set aside and is substituted by rigorous imprisonment for ten years as also a fine of Rs.5000/-, in default, to undergo a further simple imprisonment for two years. The judgement and order under appeal is, thus, modified to the extent as above and the appeal is partly allowed. The Registry is directed to communicate a copy of this judgment to the accused lodged in the Correctional Home, Prothrapur, Port Blair, forthwith. Let the lower court records be sent down immediately to the learned Trial Court. Dipankar Datta, J: I agree.