JUDGMENT : B.K. Sharma, J. This is an appeal from jail against the judgment of conviction dated 13th July, 2012 of the learned Sessions Judge, Golaghat passed in Sessions Case No.51/2010 (G.R. Case No.227/2010) (The State of Assam v. Jogen Gogoi). By the said judgment, the accused/appellant has been convicted under Section 302 IPC with the sentence of imprisonment for life and fine of Rs. 1,000/- (Rupees One Thousand). In default to pay the fine, the accused/appellant is to undergo imprisonment for further 6(six) months. 2. Golaghat Police Station Case No.111/2010 was registered under Section 302 IPC on the basis of the FIR lodged by PW-1. The incident narrated in the Fir was that at about 7:00 AM, his elder brothers, i.e. the accused/appellant and the deceased, had quarrelled over some domestic issues and the accused/appellant hacked his brother, i.e. the deceased, in various parts of his person, as a result of which he sustained cut injuries. Although he was taken to the hospital but he died there. 3. With the registration of the case, the police carried out the investigation and in due course submitted the charge-sheet against the accused/appellant under Section 302 IPC. Charges having been read out to him, he pleaded not guilty and claimed to be tried. Accordingly, trial started. 4. During trial, the prosecution examined 12(twelve) witnesses including the Investigating Officer and the Medical Officer. The accused/appellant was also examined under Section 313 Cr.PC. Based on the evidence on record, the learned trial Court having convicted the accused/appellant and sentenced as aforesaid, he has preferred this appeal from jail. 5. We have heard Mr. D. Senapati, learned Amicus Curiae representing the accused/appellant and so also Ms. S. Jahan, learned Additional Public Prosecutor, Assam. We have also perused the entire materials on record. Our findings and conclusions are as follows. 6. PW-5 is the mother of the accused and the deceased. She in her deposition categorically stated about seeing the accused dealing cut blows on the face of the deceased with a sickle. When she raised alarm, the accused fled away. She saw bleeding injury on her son's face. Although he was taken to hospital but he died. 6. PW-5 is the mother of the accused and the deceased. She in her deposition categorically stated about seeing the accused dealing cut blows on the face of the deceased with a sickle. When she raised alarm, the accused fled away. She saw bleeding injury on her son's face. Although he was taken to hospital but he died. Although there is slight contradiction as will be evident from the cross-examination in which she stated that she had not seen the accused hacked the deceased with a sickle but the same will have to be tested in reference to her denial of the suggestion that the accused, who was the elder son, is not involved in the incident of causing death of her other son, i.e. the deceased. 7. In tune with this, PW-6 in his deposition categorically stated as to how the PW-5 had informed him about the incident. He was informed by PW-5 that the accused had cut the deceased on his face with a sickle. On receipt of the information, he immediately went to the place of occurrence and found the deceased lying in injured condition in the courtyard. He could see bleeding injury on his face. Although he was taken to hospital but he died. Similarly PW-7 also in his deposition categorically stated that on the day of occurrence he heard quarrel between the accused and the deceased. When he came out he saw the deceased lying in the courtyard smeared with blood. He came to know from PW-5 that it was the accused, who had inflicted the injuries on the deceased. It will be pertinent to mention here that this PW-7 is the younger sister of the accused and the deceased. 8. PW-1 is another brother, who in his deposition narrating the incident stated that on the day of occurrence the accused holding an axe in his hand was chasing them. However, the deceased could snatch away the axe from him. Later on, they could hear the deceased crying "I am being assaulted". They came out and saw the deceased lying with injuries on his face. He was then taken to the hospital but he died. Like that of the PWs-6 and 7, this witness also stated that when the deceased raised alarm, their mother, i.e. PW-5, who was present outside looked at him and saw the accused cutting him with a sickle. They came out and saw the deceased lying with injuries on his face. He was then taken to the hospital but he died. Like that of the PWs-6 and 7, this witness also stated that when the deceased raised alarm, their mother, i.e. PW-5, who was present outside looked at him and saw the accused cutting him with a sickle. PW-2 is the wife of the deceased, who in her deposition categorically stated that it was the accused, who had cut her husband on his cheek with a sickle. As per her deposition, the accused/appellant did not allow them to come out of the house. She also stated about the presence of the PW-5 outside the house. 9. PW-3 is the Doctor, who had examined the deceased and found the following injuries:- "Injuries 1) Pleura covering the apex of left lung is incised. Plural cavity contains fluid and clotted blood. 2) Left lung- incised wound 4 cm x 1.5 cm x 4 cm seen over the apex of the upper lobe. 3) Heart - healthy, right side contains blood, left side empty. 4) A sutured linear would 10 cm long seen over the left side of the lower jaw overlying the angle of mandible - left side. Edges of the wound are sharp incised wound. The wound has cut through the sternocludo mastoid muscle of the left side of neck and extending 4 cm deep into the apex of the upper lobe of left lung. 5) Two nos. of incised wound 3 cm x 0.5 cm x 1 cm each part present over the left forearms. 6) Both the injuries are ante mortem in nature. The injury No.4 has been caused by sharp cutting weapon which has penetrated the neck muscles of the left side and penetrated the apex of the upper lobe of left lung." As per his opinion, the cause of death was due to hemorrhage and shock as a result of the penetrating injury of the left lung caused by a sharp cutting weapon. 10. PW-4 is another brother, who in his deposition stated that on the day of occurrence, he had come down to fetch water. He saw the deceased lying injured in the courtyard. In the meantime, the accused/appellant fled away. It was PW-1, who had informed him that the accused/appellant killed his brother. 10. PW-4 is another brother, who in his deposition stated that on the day of occurrence, he had come down to fetch water. He saw the deceased lying injured in the courtyard. In the meantime, the accused/appellant fled away. It was PW-1, who had informed him that the accused/appellant killed his brother. PW-8 also in his deposition stated about the quarrel between the accused and the deceased. He immediately went there and saw the deceased lying in the gateway smeared with blood. According to this witness also, PW-5 had told him that it was the accused/appellant, who had inflicted the injury on the deceased. PW-9 in his deposition stated about conducting the inquest and proved the inquest report. 11. PW-10 in his deposition stated that police had come to the house of the accused and the family members had produced a sickle measuring about 1 Ft. long. With such production, the police had seized the said sickle. He was a witness to the seizure. PW-11 is the Investigating Officer, who had conducted the investigation. He generally stated about the investigation that was carried out. PW-12 was the Second Officer of the Police Station, who in his deposition stated about the entries in the C.D. and as to how sufficient materials were found against the accused/appellant for committing an offence punishable under Section 302 IPC. 12. In the statement made responding to the questions put to the accused/appellant under Section 313 Cr.PC, the accused/appellant did not deny the specific questions, for example answering the question Nos.3, 4, 5, 6, 9, 10 and 11, reproduced below, his only answer was either "nothing" or "I do not have anything to say". "Q. No.3 P.W. 2 Smti Bhoni Gogoi has adduced in evidence that you had cut her husband Budhen with a sickle. What do you have to say? Ans:-Nothing. Q. No.4 P.W. 3 Dr. Saidur Rahman has adduced in evidence that on 1/3/2010 while he held the posts-mortem examination on Budhen Gogoi's dead body he found six cut injuries in the body and that he succumbed to those injuries. What do you say? Ans:-I don't have anything to say. What do you have to say? Ans:-Nothing. Q. No.4 P.W. 3 Dr. Saidur Rahman has adduced in evidence that on 1/3/2010 while he held the posts-mortem examination on Budhen Gogoi's dead body he found six cut injuries in the body and that he succumbed to those injuries. What do you say? Ans:-I don't have anything to say. Q. No.5 P.W. 4 Dhiren Gogoi has adduced in evidence that at the time of the occurrence, he had gone out to fetch water; that returning home he saw Budhen Gogoi lying injured in the courtyard; that Prabin Gogoi told P.W. 4 that you (accused) had cut Budhen Gogoi. What do you have to say in this regard? Ans:-No, I don't have anything to say. Q. No.6 P.W. 5 Senimai Gogoi has adduced in evidence that she had seen hacking Budhen on his face with a sickle. What do you have to say in this regard? Ans:-I don't have anything to say. Q. No.9 P.W. 7 Smti Popy Gogoi has adduced in evidence that around 8 a.m. morning when she came out of her house she saw Budhen Gogoi lying smeared with blood; that she came to know from P.W. 5 Senimai that you had killed Budhen by cutting him in his face. What do you have to say? Ans:-Nothing. Q. No.10 P.W. 8 Bipul Gogoi has adduced in evidence that around 5.30 a.m. one (1) morning about 1½ years ago your mother went to his house to call him to dissuade you from fighting; that coming there he saw Budhen lying on the ground sustaining injuries in his face; that your mother told him that you had killed him by hacking him with a sickle. What do you have to say? Ans:-Nothing. Q. No.11 What do you have to say in this case? Ans:-Nothing." 13. It is on the basis of the above evidence, the learned trial Court has convicted the accused/appellant with the following finding:- "24. I find nothing to disbelieve the evidence of the witnesses. It is no one, but accused Jogen Gogoi inflicted cut injury on the mouth of Budhen Gogoi with a sickle which is the vital part of a human body. It is found that the accused with intention to kill Budhen Gogoi, inflicted cut injury on his mouth with a sickle and in the result, the injured Budhen Gogoi succumbed to the injury. It is found that the accused with intention to kill Budhen Gogoi, inflicted cut injury on his mouth with a sickle and in the result, the injured Budhen Gogoi succumbed to the injury. The offence u/s 302 IPC is found to be well proved. 25. From the aforesaid discussions, I find and hold that the prosecution is able to prove the case u/s 302 of IPC against accused Jogen Gogoi beyond all reasonable doubt, and accordingly, I convict him u/s 302 of IPC. 26. It is not expedient to deal with the accused person under the provisions of Probation of Offenders Act, 1958. The accused has committed the offence in his full knowledge of its consequences. He committed the murder of his younger brother. Therefore, he shall be dealt with under the provisions of law under which he is convicted." 14. Although Mr. Senapati, learned Amicus Curiae submits that on the basis of the aforesaid evidence, the learned trial Court could not have convicted the accused/ appellant and that even if he is convicted, at best such conviction will be under Section 304, Part-II but Ms. Jahan, learned Additional Public Prosecutor, referring to the aforesaid evidence submits that there is nothing to warrant conversion of the conviction of the accused/appellant to that of Section 304, Part-II IPC. 15. There is nothing in the evidence to suggest that there was any aggression on the part of the deceased as a result of which the accused/appellant had committed the offence. There is also nothing to indicate that the incident occurred at the spur of the moment, rather there is evidence that the accused/appellant at the first instance tried to chase everyone with an axe and thereafter, inflicted the fatal injury on the deceased with the sickle. The witnesses were afraid of coming out. 16. All these aspects of the matter have been discussed by the learned Sessions Judge towards coming to the finding that the charge against the accused/ appellant stood categorically established. We see no reason to interfere with the finding recorded in the impugned judgment of conviction dated 13th July, 2012 passed by the learned Sessions Judge, Golaghat in Sessions Case No.51/2010 and accordingly, the appeal stands dismissed. 17. While appreciating the services rendered by Mr. D. Senapati, learned Amicus Curiae, it is hereby provided that he will be entitled to a hearing fee of Rs. 17. While appreciating the services rendered by Mr. D. Senapati, learned Amicus Curiae, it is hereby provided that he will be entitled to a hearing fee of Rs. 7,500/- (Rupees Seven Thousand Five Hundred), which shall be paid to him by the Legal Services Authority, Assam, upon production of a certified copy of this judgment and order.