ORDER 1. We have heard Ms. S. Roy, learned counsel appearing on behalf of the appellant and also Ms. S. Jahan, learned Additional Public Prosecutor, Assam, for the respondent State of Assam. 2. On 22.11.2006, at about 7.30 PM., there was a quarrel in the house of the accused person the accused Narendra Bordoloi who was neighbor of Shri Babuli Chandra Nath was quarreling and abusing his son Dulumoni Bordoloi in his house and at that time during the commotion Prabin Nath, who is the brother of said Shri Babuli Nath arrived and raised objection for such abusing of his own children by the accused, then the accused attacked Prabin with a spear resulting instantaneous death of Prabin Nath. The wife of the said Prabin Nath, namely, Bhogreswari Devi who was also along with said Prabin Nath. The wife of the said Prabin Nath was also inflicted injury by dagger by the said accused resulting injury on her person. The brother-in-law of said Bhogreswari Devi who happened to be present in his house at that time, having been seen the occurrence took the injured Bhogreswari Devi to Hospital along with Prabin nath and also filed an FIR before on the facts before the O/C Mikirbheta P.S. Accordingly, Mikirbheta P.S. Case No. 151/06 under Sections 302/341/326/34 IPC was registered and the prosecution was set into motion. During the course of investigation, the I.O. recorded the statements of the witnesses and also recovered the weapons of offence i.e. one bamboo stick having spear on it and also one dagger having a wooden handle immediately. After due completion of the investigation, I.O. submitted charge-sheet under Sections 302/341/ 326/34 IPC. 3. The learned Court below committed the case to the Court of Sessions after complying with the provisions of Section 307 IPC and since the offence is triable by the Court of Sessions. On being committed, the learned Sessions Judge, framed the charge under Sections 302 and 326 IPC after hearing both sides and when explained, the accused pleaded not guilty and claimed to be tried. In support of the case, the prosecution examined as many as 13 (thirteen) witnesses and the defence examined none. The plea of defence is of complete denial. The statement of the accused was recorded under Section 313 Cr. P.C. wherein also he denied all the allegations. In support of the case, the prosecution examined as many as 13 (thirteen) witnesses and the defence examined none. The plea of defence is of complete denial. The statement of the accused was recorded under Section 313 Cr. P.C. wherein also he denied all the allegations. On completion of the trial, the accused was held guilty for the offence committed under Section 302/326 IPC and sentenced him to undergo rigorous imprisonment for life and also to pay a fine of Rs. 5,000/-, in default, rigorous imprisonment for one year under Section 302 IPC. The accused was also sentenced to undergo rigorous imprisonment for 3 (three) years and also to pay a fine of Rs. 1,000/-, in default, rigorous imprisonment for 6 (six) months under Section 326 IPC. Both, the sentences were directed to run concurrently. 4. The accused who is facing the trial from behind the bar since the day of his arrest has preferred the present appeal on being dissatisfied of the judgment and order of conviction dated 17.12.2011 vide Sessions Case No. 105/07 under Sections 302/326 IPC assailing the fact that the judgment has not been delivered as per proper prospective of law and facts, without having legal evidence against the accused and liable to be set aside. 5. I have heard learned counsel for both the sides. It is the contention of the learned counsel for the appellant that the impugned judgment is liable to be interfered into in view of the fact that there is gross irregularities while appreciating the matters on record in proper prospective. 6. On the other hand, learned Additional Public Prosecutor has contended that there is no ground to interfere with the order of Judgment and conviction in view of the sufficient evidence given by the eye witnesses P.W. 1 and P.W. 2., who is also a injured person, which is corroborated by the medical evidence as well as P.W. 7’s and other circumstantial evidence. 7. We have heard rival contentions of both the parties as well as gone through the evidence on record. It will be proper to appreciate the evidence on record. 8. 7. We have heard rival contentions of both the parties as well as gone through the evidence on record. It will be proper to appreciate the evidence on record. 8. To begin with the evidence of inured/P.W. 2 as well as eye witness of the occurrence, it is found that she has given a clear evidence that on the day of occurrence on 20.11.2006 at about 7.00 PM., the accused Narendra was quarrelling with his own children after being drunk, then her husband Prabin Nath tried to prevent such conduct of the accused that he should not quarrel with his own children and should maintain peace. Being aggressive, the accused challenged her husband and her husband went out and there was a hot alteration between her husband and accused. She also went out behind her husband to see the matter and then she saw that there was scuffle between her husband and the accused Narendra namely Dulumoni dealt a blow upon her hand with a bamboo stick (stick for carrying bundle of paddy) and Narendra hit on her abdomen by a knife and she became senseless. She regained her sense in the hospital and came to know about the death of her husband in the occurrence. Her evidence remained unchecked in the cross-examination and she affirmed that she witnessed the incident of assault made by the accused upon her husband and saw the injuries on her husband. 9. The evidence of P.W.2 is fully corroborated by the eye witness of P.W. 1 Bubuli Nath who happened to be present at the time of occurrence who resided with P.W.2/his sister-in-law. According to him, on being protest raised by his elder brother Prabin against the accused for abusing his own children, the accused attack and assault said Prabin with a spear and Prabin died instantaneously. The P.W. 2, who went behind her husband to resist from the incident also sustained injuries on her abdomen and he took P.W. 2 inside the house and subsequently she was taken to the hospital. The villagers who gathered there took blood stained dagger and spear from the house of the accused and he was handed over to the Police. He filed the FIR Ext. 1 and the Police seized those weapons produced by the accused vide Ext. 2. The villagers who gathered there took blood stained dagger and spear from the house of the accused and he was handed over to the Police. He filed the FIR Ext. 1 and the Police seized those weapons produced by the accused vide Ext. 2. The defence could not hammer the evidence any of the vital witnesses on material aspects to disprove their evidence. 10. Though the other witnesses P.W. 3 Shri D. Pator, P.W. 4 Tanuram Nath, P.W. 5 Lakhi Bordoloi were not eye witness to the occurrence, but it has been stated that immediately after the occurrence, hearing commotion in the house of accused Narendra, they arrived at the place of occurrence and learnt that the accused has killed Prabin. P.W. 4 & 5 are the signatories to the seizure list Ext. 2. 11. That apart, the evidence of P.W. 7 Manu Devi is very much relevant for the prosecution who has highlighted the situation showing the complicity of the accused with the offence charged. Immediately, after the occurrence, P.W. 7 being neighbor was called by the daughter of the accused, Bhani to their house and get the house locked and on arrival she found dead body of Prabin lying in his house which is nearby and his wife was also lying injured. Whe she went to the house of the accused, she also saw a plastic bag bearing blood on the bag with a blood stained small dagger. Seeing the blood stained weapon, she made hue and cry and neighbouring people arrived there and the villagers gathered told that the accused had killed Prabin. She also came to know about the quarrel between the accused and Prabin. Her evidence has lend support to the circumstances that immediately after the occurrence, when she arrived in the house of the accused on being called by the daughter of the accused, she saw some blood stained weapons in the house of the accused which was subsequently seized by the I.O. which fact is itself supportive of the allegation as has been revealed by the P.W. 1 & 2 that the deceased was assaulted by a sharp cutting weapon. 12. 12. Further, we have another eye witness to the occurrence i.e. P.W. 9 Dushyanta Nath is the son of the deceased who has stated that at the relevant time on his return to home, he found that his father was in front of his homestead who went to the house of the accused Narendra but accused Narendra suddenly hit his father as a result he died instantaneously and his mother also got injured and intestine of his mother came out consequent to the injury caused to her. Defence could not exploit his evidence in the cross-examination. There is nothing to discuss the credentiality of evidence on record. In the evidence of M.O. P.W. 8 Dr. Dharati Patowary also lend support to the factum of injury sustained by P.W. 2 to whom both the deceased and his wife was P.W. 2 was taken in a thela and P.W. 8 was M & HO at the Charaibhai State Dispensary. On being examined he found that there was injury in the abdomen of P.W. 2 and it was covered with a bandage and on being recovered, her loop of intestine came out and he advised her to attend Morigaon Hospital. 13. The other Medical Officer P.W. 10 Dr. Rajen Chandra Kalita has proved the P.M. report wherein he has reported that there was perforating injury of “½” lateral to the left nipple 1” perforating injury passing through the chest injuring the left lung passing out at just interior angle of left scapula. Pleural cavity left is full of semicotted blood. Injury caused by sharp pointed weapon, grievous injury. In his opinion, the cause of death is due to severe blood loss and respiratory distress as a result of above mentioned perforating injury. Similarly, the evidence of another M.O. P.W. 12 Dr. Rajendra Prasad Borah has proved his report Ext. 5 that on his examination of Smti. Bhogreswari Devi P.W. 2 he found penetrating injury in the lower abdomen by a sharp weapon. 14. The evidence of I.O. is of formal in nature who has stated about the conducting of investigation and the seizure of weapons, one dagger and bamboo spear on being produced by the informant and filing of Charge-Sheet against the accused person. 15. Having been considered above evidence on record, there is nothing to show that the accused was under any provocation to hit and assault deceased and the injured person. 15. Having been considered above evidence on record, there is nothing to show that the accused was under any provocation to hit and assault deceased and the injured person. On the contrary, it is found that he being drunk and not in a proper state of mind has himself provoked the deceased to came out from his house and the deceased and his wife (P.W. 2) were brutally assaulted by the accused for no fault of their own. There is ample evidence on record to establish the fact that accused came with sharp weapon in his hand and he being aggressive has attack and assaulted both the deceased and his wife, who were bonafidely came out to desist the accused from assaulting his children. But the accused having the bad habit of being alcoholic has himself, has given fatal blow to the person, extinguishing his life and causing grievous injury to his wife, who were the well wisher being neighbor. The evidence on record consistently proved the blameworthy conduct of accused while inflicting the injuries, which is sufficient to held him guilty of committing the culpable homicide amounting to murder by causing death of Prabin Nath. Similarly, he is also found guilty of causing grievous hurt to P.W. 2. 16. In view of all discussions on findings above, we are of the firm view that the accused has rightly been held guilty under Sections 302/326 IPC and conviction and sentence so awarded is hereby upheld. The appeal is found to be devoid of merit and is dismissed accordingly. 17. Before parting with the case record, we appreciate the assistance rendered to the Court by Ms. S. Roy, learned Amicus Curiae and we direct the Gauhati High Court Legal Aid Cell to remunerate him to the extent of Rs. 7,000/-. 18. Return the LCRs along with a copy of this judgment.