JUDGMENT : AJIT BORTHAKUR, J. Heard Mr. M. Choudhury, learned senior counsel assisted by Mr. P.K. Munir, learned counsel for the appellant and Ms. B. Bhuyan, learned Additional Public Prosecutor, Assam. 2. This appeal under section 374(2) of the Cr.PC, is directed against the judgment and order, dated 15.5.2013, passed by the learned Sessions Judge, Udalguri, Assam in Sessions Case No. 84(D-U) 2012, whereby the appellant has been convicted under section 302, IPC and sentenced to suffer rigorous imprisonment for life and to pay fine of Rs. 1,000, in default of payment of fine, to undergo rigorous imprisonment for 1 month. 3. The prosecution case, in brief, is that one Ajit Saha, s/o late Gour Saha, a resident of Bajrajhar (Kalibari) under Udalguri P.S., lodged an FIR on 25.2.2008 with the In-charge, Rowta O.P., under Udalguri P.S. alleging that on 22.12.2008 at about 12.30 a.m. one Tarapad Saha went to call the son of Gobinda Mandal to accompany him to perform guard duty in the village, but having found that he was at the house of the appellant, namely, Raju Dey @ Uday Dey, went to his house to call him for duty. Accordingly, when Tarapad Saha went to his house, the appellant Raju Dey @ Uday Dey assaulted him on his head with a stick causing grievous injury. The injured Tarapad Saha was removed to Gauhati Medical College and Hospital (‘GMCH’) for treatment. In course of treatment at GMCH, Tarapad Saha succumbed to his injuries on 25.12.2008 at about 05.00 p.m. It was further stated that as he was tied-up with the medical treatment of the injured, the FIR could not be lodged immediately after the occurrence. 4. Based on the above FIR, Rowta O.R. GDE No. 540, dated 25.12.2008, was made and on being forwarded, registered as Udalguri P.S. Case No. 260/2008, dated 26.12.2008 under section 302, IPC. On completion of investigation, Police submitted charge sheet under the aforesaid section of IPC against the appellant. 5. Being a Sessions triable case, it was committed by the learned Sub-Divisional Judicial Magistrate (M), Udalguri to the Court of learned Sessions Judge, Darrang at Mangaldai, for trial. However, subsequently the case stood transferred to the Court of learned Sessions Judge, Udalguri as territorial jurisdiction to try the case fell within the Sessions Court at Udalguri. 5. Being a Sessions triable case, it was committed by the learned Sub-Divisional Judicial Magistrate (M), Udalguri to the Court of learned Sessions Judge, Darrang at Mangaldai, for trial. However, subsequently the case stood transferred to the Court of learned Sessions Judge, Udalguri as territorial jurisdiction to try the case fell within the Sessions Court at Udalguri. During trial, prosecution examined as many as 8 witnesses including the Autopsy Surgeon and the Investigating Officer, while the defence cross-examined them at length. Prosecution exhibited 3 documents. On completion of the prosecution evidence, the appellant was examined under section 313, Cr.PC. The appellant pleaded innocence and declined to examine any witness in defence. 6. After hearing the argument of both the sides, learned court below by the impugned judgment and order, dated 15.5.2013, convicted and sentenced the appellant under section 302, IPC, as stated above. 7. Mr. M. Choudhury, learned senior counsel appearing for the appellant submitted that the evidence led by the prosecution, more particularly that of PW2, who witnessed the alleged occurrence, do not reveal any implicating material against the appellant. According to Mr. Choudhury, the incident occurred in a sudden fight between Amaresh Saha, Taprapad Saha (the deceased) and the appellant during midnight hours and in the heat of passion upon a sudden quarrel, without any previous enmity and pre-meditation, the appellant gave single blow to Tarapad. Mr. Choudhury further submitted that both parties are residents of the same village and the appellant has already undergone detention for about 5 years and further, at the most the evidence, as a whole, reveals a prima facie case of culpable homicide not amounting to murder, which is punishable under section 304, Part-II, IPC only. In support of his contentions Mr. Choudhury has relied on the ratio of the decisions rendered by the Supreme Court in the cases of Gurmail Singh v. State of Punjab, (1982) 3 SCC 185 and Jagtar Singh v. State of Punjab, (1983) 2 SCC 342 . 8. Ms. B. Bhuyan, learned Addl. Public Prosecutor, Assam has submitted that having regard to the evidence of PW. 2, who was an eye witness to the occurrence, which is corroborated distinctly by PW6, the Autopsy Surgeon, and the evidence of the prosecution witnesses having withstood the tests of cross-examination of the defence, no fault can be found with the conviction and sentence. Offence under section 302, IPC has been established. 2, who was an eye witness to the occurrence, which is corroborated distinctly by PW6, the Autopsy Surgeon, and the evidence of the prosecution witnesses having withstood the tests of cross-examination of the defence, no fault can be found with the conviction and sentence. Offence under section 302, IPC has been established. However, she alternatively submits that the appellant's acts, would undoubtedly attract the offence of culpable homicide not amounting to murder, punishable under section 304, Part-I, IPC. 9. Now, by the instant appeal, the appellant has assailed the above impugned judgment and order on the grounds, inter alia, that the learned court below failed to appreciate the evidence on record from proper perspective and appreciated the evidence ignoring the vital contradictions in evidence; that one eye witness, namely, Amaresh Saha, was not examined in the case without explaining any reason; that the evidence shows that the appellant never with a pre-meditated intention assaulted the deceased with a piece of wood and as such, the offence does not come within the definition of ‘murder’ defined in section 300, IPC. 10. Perusal of the FIR, dated 25.12.2008, lodged by the deceased's uncle PW1, Ajit Saha revealed the allegation that on 22.12.2008 at about 12.30 a.m. when his nephew — the deceased Tarapad went to the house of the appellant Raju Dey @ Uday Dey to request him for VDP duty in the relevant night, the latter assaulted Tarapad with a ‘lathi’ causing severe injury on his person and consequently in course of treatment, he died on 25.12.2008, evening, at GMCH. PW. 1, the informant, deposed that he did not witness the aforesaid occurrence, but came to know about the occurrence initially from his nephew Amaresh Saha, to the effect that the deceased Tarapad was lying in moribund condition in the house of the appellant due to assault. On receipt of the information, he rushed to the house of the appellant, but did not find Tarapad and later on, found Tarapad lying in unconscious condition on a bench in the courtyard of the house of his brother Ranjit Kumar Saha. It is, however, noticed that the said Amaresh Saha and Ranjit Kumar Saha were not examined by the prosecution in the case without explaining any reason. Thereafter, he (PW. 1) again came to know from one Gopa Biswas (PW. It is, however, noticed that the said Amaresh Saha and Ranjit Kumar Saha were not examined by the prosecution in the case without explaining any reason. Thereafter, he (PW. 1) again came to know from one Gopa Biswas (PW. 3), a VDP member, that in the relevant night, the appellant assaulted the deceased Tarapad when he and other members of the VDP had gone to the house of the appellant to request him to join in the VDP duty. The defence has elicited in cross-examination of PW. 1 that Gobinda Mandal and Gobinda Dey reside within the same compound. The sketch map vide Ext. 4 shows that the house of Gobinda Mandal is situated nearby to the north of the house of the appellant. 11. It is quite surprising to note that in the cross-examination of PW. 7, S.I. Hiranya Patowary, the I.O., the defence elicited that PW. 3 and PW. 4 were on VDP guard duty in the relevant night in the village and they stated before him that they (PWs. 3 and 4) had witnessed the occurrence thereby lending support to the credence of their testimony. Therefore, having regard to the intrinsic truth fulness of the evidence of the prosecution witnesses, we find no reason to disbelieve their testimony. PW. 8, SI Rabindra Nath Das, the second I.O., had laid the charge sheet vide Ext. 5 in the case, based on the Case Diary on investigation done by PW. 7. The prosecution case has been reinforced by the appellant's vibrant knowledge about the incident, who stated in his statement given under section 313, Cr.PC, to the effect that “It was the duty of Gobinda Mandal's son on that day. He refused to go as his son was not at home. I do not know what happened when the chaos took place”. 12. The evidence of PW. 3, Gopa Biswas, reveals that in the relevant night at about 09.30 p.m., he along with other members of VDP went to the house of Gobinda Mandal to call him for the night vigil duty in the village and at that moment, they heard commotion on the direction to the house of Gobinda Dey and thereupon, he ran towards that side. On reaching the house of Gobinda Dey, he saw the deceased Tarapad lying in injured condition in his courtyard. The evidence of PW. On reaching the house of Gobinda Dey, he saw the deceased Tarapad lying in injured condition in his courtyard. The evidence of PW. 4, Bipa Sarkar, reveals the same account of the incident as narrated by PW. 3. PW. 4 deposed to have seen Tarapad lying in injured condition with profuse bleeding from head in the courtyard of the appellant, which is situated only 20 feet away from the house of Gobinda Mandal, when he along with other VDP members went to Gobinda Mandal's house to request him to join in VDP duty. PW. 3 came to know on the following day, morning, from PW. 2 Uttam Sen, who was on VDP duty, in the relevant night with some other group in the village that the appellant had assaulted Tarapad. 13. PW. 2 Uttam Sen was an eye witness to the occurrence. According to him, on 22.12.2008 at about 11.30 p.m., he along with Tarapad Saha (the deceased), Amaresh Saha (not examined) and other members of the VDP went to the house of Gobinda Mandal to call him to join in guard duty of the VDP. Gobinda Mandal refused to perform any guard duty in the relevant night and thereupon, when an altercation was going on with Gobinda Mandal over his refusal to join VDP duty, the appellant Raju Dey, the son of Gobinda Dey, who lives in the same compound with Gobinda Mandal, told them from his house not to raise noise. Also the appellant abused them with filthy language and when they protested him, the appellant came out to the courtyard by taking a batten from his house along with all his family members. The appellant and his brothers, namely, Gakul Dey and Santosh Dey quarrelled with him (PW. 2). The mother of the appellant Santi Dey and his father Gobinda Dey caught hold of Amaresh Saha, who had gone with them and as Tarapad went to get release of Amaresh, the appellant hit him on his head with the batten which was of about 4 feet in length, resulting in his head injury. Tarapad fell down on the ground. The two brothers of the appellant assaulted him with split bamboo used to put up a fence. The aforesaid incident took place at the courtyard of the appellant. There was electric light at the courtyard at the time of the incident. 14. Tarapad fell down on the ground. The two brothers of the appellant assaulted him with split bamboo used to put up a fence. The aforesaid incident took place at the courtyard of the appellant. There was electric light at the courtyard at the time of the incident. 14. In Shankar Narayan Bhadolkar v. State of Maharashtra, 2005 SCC (Cri) 22, the Supreme Court elucidated the distinction between ‘murder’ and culpable homicide not amounting to murder. It was held that all ‘murder’ is ‘culpable homicide’, but not vice versa. Broadly speaking, ‘culpable homicide not amounting to murder’ has some special characteristics. Indian Penal Code focuses three degrees of culpable homicide, e.g., culpable homicide of the ‘first degree’ (gravest form), of the ‘second degree’ and then, the ‘third degree’. 15. The Supreme Court has held as under in the case of Jagtar Singh (supra)— “6. A quarrel took place on the spur of the moment. The appellant never expected to meet the deceased. When the deceased was just passing by the road in front of the house of the appellant, his forehead dashed with the pamala of the house of the appellant which provoked the deceased to remonstrate the appellant. It is in evidence that there was exchange of abuses and at that time appellant gave a blow with a knife which landed on the chest of the deceased. 7. Undoubtedly, PW. 2 Dr. H.S. Gill opined that the blow on the chest pierced deep inside the chest cavity resulting in the injury to the heart and this injury was sufficient in the ordinary course of nature to cause death. The question is whether in the circumstance in which the appellant gave a blow with a knife on the chest, he could be said to have intended to cause death or he could be imputed the intention to cause that particular injury which has proved fatal? The circumstances in which the incident occurred would clearly negative any suggestion of premeditation. It was in a sudden quarrel to some extent provoked by the deceased, that the appellant gave one blow with a knife. Could it be said that para 3 of section 300 is attracted. We have considerable doubt about the conclusion reached by the High Court. We cannot confidently say that the appellant intended to cause that particular injury which is shown to have caused death. There was no pre-meditation. Could it be said that para 3 of section 300 is attracted. We have considerable doubt about the conclusion reached by the High Court. We cannot confidently say that the appellant intended to cause that particular injury which is shown to have caused death. There was no pre-meditation. There was no malice. The meeting was a chance meeting. The cause of quarrel though trivial was just sudden and in this background the appellant, a very young man gave one blow. He could not be imputed with the intention to cause death or the intention to cause that particular injury which has proved fatal. Neither para 1 nor para 3 of section 300 would be attracted. We are fortified in this view by the decision of this court in Jagrup Singhv. State of Haryana. It was subsequently followed in Randhir Singh @ Dhire v. State of Punjab, decided on 18th September, 1981 and Kulwant Rai v. State of Punjab, decided on 7th August, 1981 (Criminal Appeal No. 630/81). Following the ratio of the aforementioned decisions, we are of the opinion that the appellant could not be convicted for having committed murder of the deceased Narinder Singh. His conviction for an offence under section 302, IPC and sentence of imprisonment for life are liable to be set aside.” 16. In Gurmail Singh case (supra) also, the Apex Court held that where injury proved to be sufficient in the ordinary course of nature to cause death, without an intention on the part of the assailant to cause death, in such attending circumstances, the offence under section 304, Part-II is applicable and sentence of 5 years' rigorous imprisonment is proper. 17. Thus, on scrutiny of the evidence of the prosecution witnesses, as stated above, it is apparent that it was the appellant, who assaulted the deceased Tarapad in the midst of a quarrel without any pre-meditation in a sudden fight and in the heat of passion. 18. The absence of culpable mental state is seen manifested by the evidence of PW. 1, who stated that the appellant had gone to GMCH on 24.12.2008 to see Tarapad, where he was undergoing treatment, indicating thereby that he had no previous enmity with the deceased and that he assaulted him in fact in the spur of the moment. 19. From the evidence of PW. 1, PW. 2, PW. 3 and PW. 1, who stated that the appellant had gone to GMCH on 24.12.2008 to see Tarapad, where he was undergoing treatment, indicating thereby that he had no previous enmity with the deceased and that he assaulted him in fact in the spur of the moment. 19. From the evidence of PW. 1, PW. 2, PW. 3 and PW. 4, as a whole, it appears that immediately after the incident, the deceased Tarapad in his injured condition was removed to Government Hospital at Rowta and then to Mangaldoi Civil Hospital and therefrom, to the GMCH, Guwahati for treatment. At GMCH, Tarapad succumbed to his injuries, after two days on 25.12.2008. 20. PW. 6, Dr. Pradip Thakuria, the Assistant Professor, Department of Forensic Medicine, GMCH, performed the post mortem examination on the body of the deceased on, 26.12.2008, on police requisition with reference to Bhangagarh P.S. GDE No. 491, dated 25.12.2008, and found as follows: “(1) Partially healed abrasion present over forehead right 4 cm away from mid line, 2 in numbers 3 × 2 cm and 2 × 1.5 cm, respectively. (2) Scalp contusion of size 16 × 10 cm present over right fronto parietal area. (3) Skull — Depressed communated fracture through the right frontal area 6×4 cm in size. (4) Extradural haemorrahage over right parietal region present.” 21. According to the doctor (PW. 6), injury Nos. 2 and 3 are vital in juries and are sufficient in the ordinary course of nature to cause death of a person. 22. The doctor further opined that the cause of death of the deceased was the result of ante-mortem head injury sustained, which was caused by blunt force impact, vide Ext. 3, the post mortem report. The defence appears to have not challenged the injuries, the Autopsy Surgeon found during post mortem examination on the body of the deceased rather elicited that such type of injuries cannot be caused by falling or dashing against hard substance and that injury Nos. 2 and 3 led to injury No. 4 indicating thereby that the cause of death was due to assault by blunt weapon like stick/wooden batten as the other PWs deposed. The aforesaid evidence of the Autopsy Surgeon is found to be consistent with the ocular evidence, more particularly, PW. 2 and the circumstantial evidence of PW. 1, PW. 3 and PW. The aforesaid evidence of the Autopsy Surgeon is found to be consistent with the ocular evidence, more particularly, PW. 2 and the circumstantial evidence of PW. 1, PW. 3 and PW. 4, who saw the deceased in injured condition immediately after the occurrence was over and PW. 5 Manindra Saha, the father of the deceased, who saw head injury on his son and who put his signature in the inquest report vide Ext. 2. 23. It is noticed that it is not a case of single blow, but of multiple injuries caused by repeated beatings of the deceased by a wooden batten/lathi (split bamboo) as the medical evidence of PW. 6 reveals as extracted above. However, the alleged weapon of offence was not seized during investigation, which was launched after 2 days of occurrence, after receipt of FIR, on 25.12.2006, and after death of Tarapad on that day. The reasons for delay in filing the FIR may be two fold — firstly, as the primary injury was caused to the head and it left unrealised by the informant about its fatal consequence being an internal injury which could not be seen from outside and secondly, as the appellant is a co-villager of the informant, this factor might have made him hesitant to lodge complaint with the police about the incident. 24. Situated, thus, we are of the opinion that the appellant assaulted the deceased in his courtyard in the midnight of 22.12.2008 in the heat of passion upon a sudden quarrel and pursuant to provocation initiated, in fact, by the deceased and his companions who went to the house of the appellant entailing deprivation of his power of self-control and, therefore, in absence of evidence of intention of causing death of Tarapad by the appellant, the case squarely comes within the Exception Nos. 1 and 4 to section 300, IPC, punishable under section 304, Part-II IPC. 25. Thus, we hold that the appellant is guilty of the offence of culpable homicide not amounting to murder and accordingly, we convict him under section 304, Part-II, IPC by altering the conviction from one under section 302, IPC imposed by the court below and also altering the sentence to rigorous imprisonment for 5 years instead of imprisonment for life and to pay fine of Rs. 2,000 only, in default to undergo rigorous imprisonment for 1 month only. Consequently, this appeal is partly allowed. 2,000 only, in default to undergo rigorous imprisonment for 1 month only. Consequently, this appeal is partly allowed. The period of detention undergone by the appellant to be set off against the sentence of imprisonment under section 428 of Cr.PC. Send back the LCR along with a copy of this judgment and order.