JUDGMENT & ORDER : ARINDAM LODH, J. 1. This appeal is directed against the judgment dated 05.03.2014 in connection with case No. ST 49(WT/K) of 2012 passed by the learned Addl. Sessions Judge, Khowai, West Tripura whereby and whereunder the accused-appellant has been convicted under Section 302 of IPC and thereby sentenced to suffer imprisonment for life and to pay a fine of Rs.5,000/-, in default to pay the fine money, to suffer RI for a period of one year. Being aggrieved, the accused-appellant has preferred the instant appeal before this Court. 2. Briefly stated, the prosecution case is that on 17.05.2012 (Thursday), at noon at about 1/1.30 p.m. the accused-appellant Suku Kumar Jamatia and his mother-in-law were taking liquor in the house of Sadhan Jamatia, now deceased, of Trishabari at Dhan Chakma. Sadhan Jamatia is the father-in-law of Suku Kumar Jamatia. During the course of taking liquor an altercation took place in between Sadhan Jamatia and his son-in-law, Suku Kumar Jamatia. It is alleged that Suku Kumar Jamatia first gave a blow with a hammer to his father-in-law, Sadhan Jamatia and subsequently gave a blow of sharp dao in the neck of Sadhan Jamatia and caused severe bleeding injury. Thereafter, while he was absconding the men of local SPO camp detained him and took him in the camp. Meanwhile, Sadhan Jamatia succumbed to his injuries on the spot at his house. 3. Narrating the incident, one Raju Jamatia, another son-in-law of deceased Sadhan Jamatia filed a complaint orally at the venue of crime before the police of the Teliamura Police Station. Police recorded the complaint with a certificate that it was written as per the statement of the complainant Raju Jamatia. Accordingly, police registered the FIR being Teliamura PS case No. 56/2012 against the accused-appellant and investigation was carried out under Section 302 IPC. 4. The IO recorded the statement under Section 161 CrPC and also visited the place of occurrence, prepared hand sketch map with separate index, collected the post mortem report and the dead body challan paper and on completion of investigation, submitted charge sheet, on the basis of which GR case No. 170/2012 was registered against the accused-appellant under Section 302 IPC. Thereafter, the case was committed to the court of learned Sessions Judge, Khowai, West Tripura. 5. Thereafter, the case was committed to the court of learned Sessions Judge, Khowai, West Tripura. 5. Prosecution examined as many as 16 witnesses and also exhibited some documents to prove the charge against the appellant. On the closure of prosecution evidence the appellant was examined under Section 313 CrPC to which he strongly denied the allegations brought out against him by the prosecution but he denied adducing any evidence on his side. 6. The learned trial court took up the following points for discussion and decision: (a) Whether the death of Sadhan Jamatia was homicidal in nature and that was caused in consequence of the act of the accused Suku Kumr Jamatia; and (b) Whether such act was done with an intention of causing death of Sadhan Jamatia. 7. After having considered the materials on record and on hearing the arguments of both sides, the learned trial court came to the finding that the appellant was guilty of committing an offence punishable under Section 302 IPC and thereby sentenced him to suffer imprisonment for life and to pay a fine of Rs.5,000/-, i.d. to suffer RI for a period of one year. 8. According to the appellant, the sentence passed by the learned court below is illegal, perverse and not tenable in the eye of law and is liable to be set aside. 9. We have scanned the evidence deposed by the witnesses. It is found that there is no eye witness to the incident except PW2, namely, Alikaynnya Jamatia, the wife of the deceased. In her examination-in-chief, she has stated that on the date and time of the incident, the accused-appellant went to her house and he had caused some injuries in the head of her husband by a hammer and when her husband, i.e. Sadhan Jamatia fell down, then the appellant gave a blow of dao at his neck and seeing it she became puzzled and raised a cry and lost her sense for few minutes. She identified the accused at the dock. She has further stated that they used to cultivate the land of their other son-in-law, Raju Jamatia, and the appellant did not like it. 10. In her cross-examination, she has stated that at the time of incident except herself there was no other person present in the house excluding the accused and her deceased husband. 11. She has further stated that they used to cultivate the land of their other son-in-law, Raju Jamatia, and the appellant did not like it. 10. In her cross-examination, she has stated that at the time of incident except herself there was no other person present in the house excluding the accused and her deceased husband. 11. To a suggestion, she has denied the statement that when the appellant went to her house at about 1 p.m. on 17.05.2012 the appellant consumed liquor along with his father-in-law. The attention being drawn to her statement under Section 161 CrPC with the help of the prosecution, the witness admits to the presence of such statement but denied to have made such statement. The said portion of the statement is marked is exhibit-A subject to confirmation by the IO. PW1, Raju Jamatia is the complainant. In his evidence, he has deposed a totally opposite and contradictory version what he stated in his complaint on the basis of which FIR was registered. He has stated that the police drafted the FIR on their own and he was asked to put his signature and most surprising feature is that he was informed about the incident after one day. His mother-in-law informed him that the accused Suku Kumar Jamatia caused hurt to his father-in-law with a hammer and thereafter by a sharp edged dao. 12. PW3, Kamal Ranjan Chowdhury in his statement has stated that the accused-appellant reported to the SPO camp at Darjeeling Tilla under Teliamura P.S. and told to Vibekananda Kalai who was the In-charge, Head Constable, that he had killed one and left the dead body and at that time the accused appeared to be intoxicated. Later on, he came to know that the accused had murdered his father-in-law. 13. PW4, Pranesh Kiran Chakma has stated during the course of trial that on the date of incident he received a telephonic call from H/C Vibekananda Kalai of Darjeeling Tilla SPO Camp to the effect that the appellant gave a statement that he assaulted one Sadhan Jamatia with sharp cutting dao and hammer and they had detained the appellant. Based on that information, the duty officer of Teliamura PS entered the facts in GDE No. 1150 dated 17.05.2012 and, thereafter, the police personnel went to the place of occurrence and found the dead body of the deceased Sadhan Jamatia. Based on that information, the duty officer of Teliamura PS entered the facts in GDE No. 1150 dated 17.05.2012 and, thereafter, the police personnel went to the place of occurrence and found the dead body of the deceased Sadhan Jamatia. At the place of occurrence they found Raju Jamatia, the other son-in-law of the deceased who recorded oral ejahar that was subsequently registered as FIR. The certificate and signatures in the FIR are identified by him. 14. PW5, Vibekananda Kalai has stated the similar and identical facts during his examination before the trial court. He has further stated that he telephoned the Teliamura Police Station and detained the accused-appellant at the SPO Camp. He has signed on the seizure list in respect of the seizure of hammer which police seized from the shop of the accused. He identified his signature in the seizure list (Exhibit-3). He has stated that when they seized the hammer the accused was in the camp but his wife was present when they collected the key from his wife. He identified the seized hammer. The said witness has stated that he noticed that one dao was placed at the neck of the deceased and the sharp edge of the dao was inside the neck. 15. During his cross-examination, attention was drawn to his statement that he stated to the police that from the SPO camp they sent one messenger to the house of the father-in-law of the accused appellant to verify the incident and they received positive information and then subsequently he also visited the place of occurrence and had seen the dead body. It is found that no such statement was drawn to his 161 statement. 16. PW6, Malan Mohan Jamatia has stated that he put his signature in the inquest report prepared by the police. 17. PW7, Subha Brinda Jamatia and PW8, Dhruba Chandra Jamatia have stated that they have seen the dead body of the deceased Sadhan Jamatia lying on the verandah and they noticed one cut injury on the neck of the deceased and Dao was placed on that cut injury. They put their signature in the inquest report. 18. PW9, Chira Kumar Jamatia has stated that Sadhan Jamatia was his maternal uncle and he heard that the appellant had committed the murder of Sadhan Jamatia. 19. They put their signature in the inquest report. 18. PW9, Chira Kumar Jamatia has stated that Sadhan Jamatia was his maternal uncle and he heard that the appellant had committed the murder of Sadhan Jamatia. 19. PW10, Govinda Bahadur Jamatia, PW11, Tulasi Jamatia and PW12, Laxman Hari Jamatia have heard similar facts. 20. PW13, Sanjit Roy has stated that at about 2.30 p.m. he was at the SPO Camp when he had seen the appellant in intoxicated condition when he declared that he had murdered his father-in-law by a hammer and then by giving a dao blow. He found marks of blood in the leg of the appellant. He made a telephonic call to the Teliamura P.S. who advised to detain Suku Kumar Jamatia. They visited the place of occurrence when they found the body of Sadhan Jamatia at the verandah of the house of the deceased. 21. PW14, Bakendra Debbarma has stated that he noticed that the dead body was lying on the verandah and the dao was placed at the neck of the Sadhan Jamatia. 22. PW15, Mohan Jamatia has stated in his examination before the trial court that about a year back one day at noon the appellant went to his shop and told him that he went there after killing his father-in-law Sadhan Jamatia when he kept the hammer and told him that he would surrender before the police within a week. Subsequently, the police seized the hammer in his presence from the shop of the accused by preparing seizure list. He identified his signature in the seizure list. 23. In his cross-examination, he stated that he had not seen whether Suku Kumar Jamatia had kept the hammer in his shop. 24. PW16, Amar Krishna Sur is the Investigating Officer. He in his deposition has stated that he visited the place of occurrence on 7.05.2012 and prepared the hand sketch map of the place of occurrence with index. He identified hand sketch map and index (exhbit-8 and 8/1 respectively). He has further stated that on the same date he seized one “hand dao” which was found planted in the back side of the neck of the deceased and also one blood stained lungi of the deceased by preparing seizure list in presence of witnesses. He identified the seizure list which is marked as Exhibit-6/1. He also identified his signature which is marked as Exhibit-6/2. He identified the seizure list which is marked as Exhibit-6/1. He also identified his signature which is marked as Exhibit-6/2. He also seized one iron hammer from the shop of accused-appellant situated at Darjeeling Tilla by preparing seizure list and identified the seizure list marked as Exhibit-3/2 and also his signature marked as exhibit-3/3. He prepared surathal report on the dead body of the deceased which on identification is marked as Exhibit 4/3. He also identified his signature on the said report marked as Exhibit 4/4. He also prepared the dead body challan in respect of the deceased Sadhan Jamatia marked as Exhibit-9 and his signature therein is marked as Exhibit-9/1. He also recorded the statements of some of the witnesses on 20.05.2012, namely, Chira Kr. Jamatia, Braja Kr. Jamatia, Gobinda Bahadur Jamatia, Sanjit Roy, Tulasi Jamatia, Laxman Hari Jamatia, Kamal Ranjan Chowdury and Aliganga Jamatia. PW16 also collected the post mortem report. 25. In his cross-examination, he has stated that he did not send the seized wearing apparels having blood stain to the SFSL. During investigation he also did not seize any material relating to consumption of wine whereas from the contents of the FIR there was a wine party in the house of the deceased at the time of incident. 26. In his examination under Section 313 CrPC the appellant has denied that he had killed his father-in-law. He has also stated that he had no conversation with PW15, Mohan Jamatia and he does not know anything about the allegations levelled against him. 27. The learned trial court after discussion of the evidence on record came to the conclusion that barring the cross, denial and vague suggestion given by the defence, the evidence of the prosecution witnesses have not been shaken. The learned court has further held that the appellant suo moto appeared before the SPO Camp and candidly admitted before the men of the SPO Camp, who deposed as PWs in this case, that the accused killed his father-in-law. The said admission of the appellant before the members of SPO Camp inspired the learned trial court to declare the conviction against the accused. In regard to the motive behind the crime, the trial court held that PW2 has stated that the appellant did not like that they used to cultivate the land of Raju Jamatia, their other son-in-law. 28. Heard Mr. In regard to the motive behind the crime, the trial court held that PW2 has stated that the appellant did not like that they used to cultivate the land of Raju Jamatia, their other son-in-law. 28. Heard Mr. R Datta, learned counsel appearing for the appellant as well as Mr. B Choudhury, learned counsel appearing for the respondent-State. 29. Mr. Dutta, learned counsel appearing for the appellant has contended that the Doctor is a vital witness in this case but the prosecution has withheld the said Doctor who conducted the post mortem examination of the deceased Sadhan Jamatia leading to an adverse inference against the prosecution story. Besides, there is no eye-witness to prove the prosecution story. The statement of PW2 also cannot be given much weightage because all of them were taking liquor at the house of the deceased. PW2, in her examination-in-chief has totally suppressed the fact that she herself, her husband and the appellant were consuming liquor at that time. 30. Raju Jamatia, the other son-in-law of the deceased, who has lodged the oral complaint has clearly stated that the appellant was taking liquor with his mother-in-law. In his deposition before the trial court, he has stated that police official drafted the complaint on their own and he was asked to put his signature and that he heard the fact of the incident after one day from his mother-in-law. The persons of the SPO Camp who have deposed before the trial court have stated that the accused appellant first went to the camp and narrated the incident. The persons of the SPO Camp also detained him till his arrest but PW15 has stated in his deposition that the accused-appellant at noon went to his shop and told him that he killed his father-in-law. He has further stated that the accused appellant has kept a hammer and police seized the said hammer from that place in his presence. He also put his signature in the said seizure list which is marked as Exhibit-3/1. 31. Drawing our attention to the said contradictions, Mr. Dutta submits that there is suspicious circumstances and doubts regarding the appearance of the accused appellant in the SPO Camp and the story of detention in the said camp is not believable in view of the statements made by PW15 and the accused appellant is entitled to get the benefit of doubt. 32. Mr. Dutta submits that there is suspicious circumstances and doubts regarding the appearance of the accused appellant in the SPO Camp and the story of detention in the said camp is not believable in view of the statements made by PW15 and the accused appellant is entitled to get the benefit of doubt. 32. Mr. Dutta, learned counsel for the appellant further submits that withholding of the Doctor to make statement before the trial court has caused serious prejudice to the accused-appellant because in absence of the Doctor it has not been proved that whether the injury suffered by the deceased was the result of the blow of the Dao or not. 33. Learned counsel for the appellant further submits that, though, blood stained lungi of the accused-appellant was seized as per the prosecution story, but, it was not sent to the SFSL intentionally by the IO. Had the lungi/wearing apparel of the accused appellant been sent to the SFSL, then, it would be evident that the blood in the said lungi/wearing apparel was not the blood of the deceased Sadhan Jamatia. Learned counsel contended that though, according to the prosecution, the dao was seized but it has not been proved that the said Dao was used in the murder of the deceased Sadhan Jamatia and there is no link of the said Dao behind the commission of the crime, i.e. murder of Sadhan Jamatia, which the prosecution is bound to prove. In absence of any proof, it cannot be said beyond reasonable doubt that the said Dao was used to cause murder of the deceased Sadhan Jamatia, in view of Section 27 of the Evidence Act. 34. Lastly, Mr. Dutta, learned counsel for the appellant has contended that there was no mens rea for the appellant to commit the said crime. In support of his contention, he has submitted that PW2, the mother-in-law, the deceased father-in law and the appellant were consuming liquor and it is revealed that the appellant and the deceased were involved in a quarrel when the appellant made a blow by a “hand dao” resulting in the unintentional death of the deceased Sadhan Jamatia. 35. Mr. In support of his contention, he has submitted that PW2, the mother-in-law, the deceased father-in law and the appellant were consuming liquor and it is revealed that the appellant and the deceased were involved in a quarrel when the appellant made a blow by a “hand dao” resulting in the unintentional death of the deceased Sadhan Jamatia. 35. Mr. B Choudhury, learned PP appearing for the State has submitted that the evidence of PW2 and PW5 as well as the other witnesses have not been shaken by the defence and the case of murder of the deceased Sadhan Jamatia by the accused appellant has been well proved. With this submission, learned PP has urged to uphold the conviction and sentence of the accused appellant as awarded by the learned trial court. 36. Though, the Doctor was not examined, we have gone through the post mortem report of the deceased. The details of the injuries are as follows:- “MORE DETAILED DESCRIPTION OF INJURY OR DISEASE A deep chop wound (around 5 to 6 cm in depth) present on occipital region of skull with huge hemorrhage. 3 small circular coup injury (2 ½ cm x 3 cm in surface) present on 3 different sides of back of skull. One small circular coup injury (2 ½ cm x 3 cm in surface) present in front side of skull. OPINION OF DOCTOR AS TO CAUSE OF DEATH After PM examination, I came to the conclusion that, Sadhan Jamatia (85 years) died due to grievous chop injury leading to hemorrhagic shock.” 37. From the very beginning, the prosecution has tried to project a definite case that both the accused and the deceased were involved in hot altercation at the place of occurrence and the accused-appellant was under the state of intoxication. The story of intoxication has also become evident from the deposition of all the witnesses of the SPO Camp (PW-3, PW-5 and PW-13) where the accused went immediately after the incident. 38. We find serious lapses to the investigation as well as the prosecution case. The recovered/seized articles were not set to the SFSL and consequently, there is no report from the SFSL to determine the blood stain and the weapon used and responsible to cause injuries which appeared to be fatal. The doctor who conducted the post-mortem examination was not examined without any explanation by the prosecution. 39. The recovered/seized articles were not set to the SFSL and consequently, there is no report from the SFSL to determine the blood stain and the weapon used and responsible to cause injuries which appeared to be fatal. The doctor who conducted the post-mortem examination was not examined without any explanation by the prosecution. 39. After being scanned the evidence and materials on record in its entirety, it is quite evident that the deceased Sadhan Jamatia died in a homicidal death being suffered with injuries. There is no concrete evidence to draw a presumption that the fatal assault was due to any previous enmity. No mens rea is couched to the cause of death of Sadhan Jamatia. 40. We find no mens rea to be said to be couched to inflict the blow that caused the death of Sadhan Jamatia. There is no evidence to show that the accused came with any premeditation and with the intention to kill his father-in-law or to inflict injuries. More so, when both of them sat together with no previous enmity, under the influence of liquor, at the spur of the moment the incident took place and in our considered view it may fall under Exception 4 of Section 300 IPC. 41. To bring more clarity, we may have a look at Exception 4 of Section 300 IPC. Exception 4 to Section 300 IPC reads as under: “Exception 4.—Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.” 42. We also have noticed the decision in Pulicherla Nagaraju @ Nagaraja Reddy Vs. State of A.P., reported in (2006) 11 SCC 444 wherein the Supreme Court has taken almost a similar view at para 29 which is reproduced in extenso: “29. Therefore, the court should proceed to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls under Section 302 or 304 Part I or 304 Part II. Many petty or insignificant matters plucking of a fruit, straying of a cattle, quarrel of children, utterance of a rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Many petty or insignificant matters plucking of a fruit, straying of a cattle, quarrel of children, utterance of a rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Usual motives like revenge, greed, jealousy or suspicion may be totally absent in such cases. There may be no intention. There may be no pre-meditation. In fact, there may not even be criminality. At the other end of the spectrum, there may be cases of murder where the accused attempts to avoid the penalty for murder by attempting to put forth a case that there was no intention to cause death. It is for the courts to ensure that the cases of murder punishable under section 302, are not converted into offences punishable under section 304 Part I/II, or cases of culpable homicide not amounting to murder, are treated as murder punishable under section 302. The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances : (i) nature of the weapon used; (ii) whether the weapon was carried by the accused or was picked up from the spot; (iii) whether the blow is aimed at a vital part of the body; (iv) the amount of force employed in causing injury; (v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight; (vi) whether the incident occurs by chance or whether there was any premeditation; (vii) whether there was any prior enmity or whether the deceased was a stranger; (viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation; (ix) whether it was in the heat of passion; (x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner; (xi) whether the accused dealt a single blow or several blows. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention. Be that as it may.” 43. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention. Be that as it may.” 43. On perusal of this provision Exception 4 of Section 300 of IPC, we may gainfully refer a decision in Gurmukh Singh Vs State of Haryana reported in (2009) 15 SCC 635 , wherein the Apex Court has laid down the principles and relevant factors to be considered for converting a conviction and sentence under Section 302 to Section 304 Part II of IPC. [SCC.P.642, para 22, 23]: “22. Before we part with the case, we would like to clearly observe that we are not laying down that in no case of single blow or injury, the accused cannot be convicted under Section 302 IPC. In cases of single injury, the facts and circumstances of each case have to be taken into consideration before arriving at the conclusion whether the accused should be appropriately convicted under Section 302 IPC or under Section 304 Part II IPC. 23. These are some factors which are required to be taken into consideration before awarding appropriate sentence to the accused. These factors are only illustrative in character and not exhaustive. Each case has to be seen from its special perspective. The relevant factors are as under: (a) Motive or previous enmity; (b) Whether the incident had taken place on the spur of the moment; (c) The intention/knowledge of the accused while inflicting the blow or injury; (d) Whether the death ensued instantaneously or the victim died after several days; (e) The gravity, dimension and nature of injury; (f) The age and general health condition of the accused; (g) Whether the injury was caused without pre-meditation in a sudden fight; (h) The nature and size of weapon used for inflicting the injury and the force with which the blow was inflicted; (i) The criminal background and adverse history of the accused; (j) Whether the injury inflicted was not sufficient in the ordinary course of nature to cause death but the death was because of shock; (k) Number of other criminal cases pending against the accused; (l) Incident occurred within the family members or close relations; (m) The conduct and behaviour of the accused after the incident. Whether the accused had taken the injured/the deceased to the hospital immediately to ensure that he/she gets proper medical treatment? These are some of the factors which can be taken into consideration while granting an appropriate sentence to the accused.” 44. If we apply the ratio decidendi in the case in hand and the evidence on record, we find that there was a sudden quarrel between the deceased and the appellant and in the midst of quarrel without any pre-meditation or intention the accused inflicted a blow upon his father-in-law with a hand dao (sharp cutting weapon) which was lying at the place of occurrence and as a result, his father-in-law sustained severe injuries on neck and unfortunately died. The evidence, therefore, squarely comes under the purview of Section 304 part II of IPC. 45. After visualizing the prosecution evidence on record on an anvil of law of appreciation of evidence and cardinal principle of criminal jurisprudence we are unable to concur with the judgment of the trial court and we are inclined to think that the appellant is entitled to the benefit of exception relied upon hereinbefore in absence of any proof of mens rea and premeditation. In these circumstances, the conviction and sentence recorded by the learned trial judge under Section 302 IPC is not sustainable and deserves to be interfered with and converted to Section 304 Part II IPC. 46. Accordingly, the judgment and order of conviction and sentence under Section 302 passed by the learned Addl. Sessions Judge is modified and converted to Section 304 Part II of IPC and the appellant is hereby sentenced to suffer rigorous imprisonment for five years and also to pay a fine of Rs.5,000/- (Rupees five thousand only) in default, he is to suffer a simple imprisonment for three months. 47. Consequently, the appeal is partly allowed and disposed of. Send down the LCRs.