JUDGMENT : M.R. Pathak, J Heard Mr. Kanak Sarma, along with Mr. Ditul Das, learned counsels for the accused appellant and Ms. Barnali Bhuyan, learned Additional Public Prosecutor, Assam for the State respondent. 2. This criminal appeal has been filed by the appellant Sri Bipul Ray @ Roy being aggrieved with the judgment of conviction and sentence dated 22.01.2015, passed by the learned Sessions Judge, Kokrajhar in Sessions Case No. 59/2012, arising out of Fakiragram Police Station Case No. 30/2012, (corresponding to G R No. 271/2012) whereby he has been convicted under Section 302 IPC and sentenced to suffer Rigorous Imprisonment for Life with a fine of Rs. 5,000/-for the said offence, in default of payment of fine, to undergo Rigorous Imprisonment for 3 (three) months. 3. Smti. Gita Rani Roy (PW.4) on 27.04.2012 lodged an written ejaharbefore the Officer-in-Charge of Fakiragram Police Station stating that on the previous evening, i.e., on 26.04.2012 at around 07:00 pm while returning home from Shakti Ashram Bazar side Rupak Roy saw a youth of Mukhigaon vandalizing the public Kali and Shiva Temples of their village. Witnessing the same said Rupak Roy informed the villagers about the same. Before the villagers could move to the place of those temples, said Rupak Roy along with his friend Raju Roy proceeded in advance and saw Bipul Roy, son of late Jadab Roy of Mukhi Gaon. Seeing them said Bipul Roy came out of the temple and he chased them with lathi and Khukri in his hand. Seeing it Rupak Roy and Raju Roy walked back and called the villagers. Before the villagers could reach the place said Bipul Roy damaged the motor cycle of Rupak Roy that he left on the road while he and Raju Roy ran out of fear of losing their lives on being chased by Bipul Roy. On arrival of the villagers in the temple, Bipul Roy fled towards his house. Suddenly, said Bipul Roy appeared before Rupak Roy, Pratyush (Paritosh) Devnath (PW.1), Sanjay Roy (PW.3) and others and attacked Rupak Roy with Khukri in his hand. People gathered at the place of occurrence called a 108 Ambulance and took injured Rupak Roy immediately to the Kokrajhar Hospital but the said victim succumbed to the injuries on his way to the hospital. People gathered at the place of occurrence called a 108 Ambulance and took injured Rupak Roy immediately to the Kokrajhar Hospital but the said victim succumbed to the injuries on his way to the hospital. Through the said ejahar the complainant on behalf of the villagers requested the authorities concerned to investigate the matter and to punish the accused accordingly. 4. Said ejahar(Exhibit-1) dated 27.04.2012 of Gita Rani Roy was registered by the Officer-in-Charge of Fakiragram Police Station on 27.04.2012 as Fakiragram Police Station Case No. 30/2012, under Section 302 IPC corresponding to G R No. 271/2012 and accordingly, the said criminal case was formally set in motion. 5. Prior to the said ejahar(Exhibit-1), on the night of 26.04.2012 itself, around 08:15 pm, after the said incident, one Ram Krishna Roy (PW.5) of Balidia Bathan Gaon informed Fakiragram Police Station over phone that around 07:00 pm one Bipul Roy of Mukhigaon stabbed a boy of their village, namely, Rupak Roy in his stomach with a dagger, thereby caused grievous injuries on him and that the villagers have already sent the injured Rupak Roy to Kokrajhar Hospital in ’Mritunjay’, 108 Ambulance. The Officer-in-Charge of Fakiragram Police Station recorded the said telephonic information by registering the same as G. D. Entry No. 609, dated 26.04.2012 (Exhibi4). After making the said G D Entry No. 609 dated 26.04.2010, the Officer-in-Charge of Fakiragram Police Station with Home Guard Akbar Ali went to the place of occurrence. 6. The Investigating Officer of the case visited the place of occurrence, drew its sketch map (Exhibit-6), recorded the statements of the witnesses acquainted with the facts of the case, made inquest on the dead body of the deceased (Exhibit-11), forwarded the dead body of the deceased Rupak Roy to the Ranendra Narayan Basumatary (RNB) Civil Hospital, Kokrajhar for its post-mortem examination, arrested the accused Bipul Roy on 27.04.2012. 7. During the course of investigation, the Investigating Officer of the case on 27.04.2012, i.e., on the next day of the incident forwarded three witnesses acquainted with the case, namely, Sanjoy Kumar Roy (PW.3), Tikiram Roy (PW.2) and Paritosh Devnath (PW.1) to the Magistrate for recording of their statements under Section 164 CrPC and on 27/04/2012 itself, the learned Sub-Divisional Judicial Magistrate (Sadar), Kokrajhar accordingly recorded the statements of those three witnesses vide Exhibits – 8, 9 and 10 respectively. 8. 8. After arresting the accused Bipul Roy on 27.04.2012 and on his statement before the I.O. of the case regarding the weapon of offence used in the crime involved in the case, the concerned I.O. recorded the same by making Fakiragram Police Station G D Entry No. 622 dated 27.04.2012 (Exhibit-5) in that regard and recovered an iron Khukri with wooden handle, 15 inches in length, the alleged weapon used in the crime, from the house of the accused at Mukhigaon, Ujanpara that was brought out by the accused himself in presence of witnesses, which was accordingly seized by preparing Seizure List in presence of witnesses (Exhibit-3), [Material Exhibit (M.R.) No.24/12]. 9. The Investigating Officer of the case PW.4 after obtaining the Post Mortem Examination Report of the deceased Rupak Roy dated 27.04.2012 (Exhivit-2) from the R N B Kokrajhar Civil Hospital and on completion of the investigation of the case, finding prima facie materials against the accused person Bipul Roy submitted the Charge Sheet in said Fakiragram P S Case No. 30/2012 under Sections 302 IPC vide No. 34/2012 dated 31.05.2012 (Exhibit-7). 10. As Section 302 IPC is exclusively triable by the Court of Sessions, the learned SDJM, Kokrajhar by its order dated 14.06.2012 committed the said G.R. Case No. 271/2012 to the Court of learned Sessions Judge, Kokrajhar along with the Charge Sheet, Case Diary including the Inquest Report, Post Mortem Examination Report of the deceased and Seizure List etc. On receipt of the records of the said G.R. Case No. 271/2012, the same was duly registered as Sessions Case No.59/2012 in the Court of learned Sessions Judge, Kokrajhar. 11. In the said Sessions Case No.59/2012, learned Sessions Judge, Kokrajhar on 13.07.2012 framed charge against the accused appellant Bipul Roy under Section 302 IPC and the same was read over and explained to the said accused to which the accused pleaded not guilty and claimed to be trial and accordingly, and thus, the trial of the case was initiated. 12. To prove the guilt of the accused, the prosecution examined 13 witnesses and also exhibited various Exhibits and Material evidence. After closure of recording of evidence of the prosecution witnesses, statement of the accused person under Section 313 CrPC was recorded by the learned Trial Court on 30.08.2013. Though the defence did not adduce any evidence but it cross examined the prosecution witnesses. 13. After closure of recording of evidence of the prosecution witnesses, statement of the accused person under Section 313 CrPC was recorded by the learned Trial Court on 30.08.2013. Though the defence did not adduce any evidence but it cross examined the prosecution witnesses. 13. On the prayer of the prosecution and as not been objected and for arriving at the just decision, the learned Trial Court by order dated 01.08.2014 allowed re-examination of the prosecution witnesses Paritosh Devnath (PW.1), Tikiram Roy (PW.2) and Sanjoy Kumar Roy (PW.3) since the prosecution inadvertently could not exhibit their statements recorded under Section 164 CrPC during investigation, during the trial of the case. Accordingly, the concerned SDJM (S), Kokrajhar (PW.12), who recorded Section 164 CrPC statements of those three prosecution witnesses, was examined and cross examined on 05.09.2014; Tikiram Roy (PW.2) and Sanjoy Kumar Roy (PW.3) were re-examined and re-cross examined on 20.09.2014 and Paritosh Devnath (PW.1) was re-examined and re-cross examined on 22.10.2014. The concerned Executive Magistrate (PW.13) present during Inquest of the deceased Rupak Roy on 27.04.2012 was also examined and cross examined on 22.10.2014. Thereafter, additional statements of the accused Bipul Roy under Section 313 CrPC were recorded on 19.11.2014. 14. The Trial Court considering the evidence as recorded as well as the exhibits placed by the prosecution passed the impugned judgment on 22.01.2015 convicting the accused appellant under Section 302 IPC for committing murder of Rupak Roy on 26.04.2012 and sentencing him to suffer Rigorous Imprisonment for Life with fine. 15. Mr. Kanak Sarma learned counsel for the accused appellant submitted that the accused in his Section 313 CrPC statement stated that he suffered from mental disorder and he did not know how he caused the death of the deceased for which the said accused is entitled for protection under Section 84 IPC; there are contradictions between the evidence of prosecution witnesses, their statements made under Section 161 CrPC as well as under Section 164 CrPC; the Material Exhibit-1 Khukri was not sent to FSL to ascertain whether the said alleged weapon of offence contained human blood or not or whether it had the fingerprints of the accused or not etc. Therefore, Mr. Therefore, Mr. Sarma, learned counsel for the appellant submitted before the Court that the learned Trial Court committed illegality in convicting the accused appellant Bipul Roy and therefore, the impugned judgment of conviction and sentence dated 22.01.2015 passed against the appellant Bipul Roy in Sessions Case No. 59/2012 should be set aside and quashed, acquitting him from the said case. 16. Mr. Sarma on behalf of the accused appellant submitted that there was only one injury on the abdomen of the deceased and that there was no intention on the part of the accused to commit murder as described under section 299/300 IPC and therefore the said crime should be considered under Section 304 Part II of the IPC and there being exception to Section 300 IPC. In that regard Mr. Sarma placed a coordinate bench judgment of this Court in the case of Ripunjoy Borgohain -Vs- State of Assam reported in 1998 (4) GLT 502 and submitted that the accused appellant cannot be convicted under Section 302 IPC and at best he can be convicted only under Section 304 Part II of the IPC, though he stated that the appellant is entitled for his acquittal as there is no sufficient materials in the evidence of PWs. 1, 2 and 3. 17. On the other hand, Ms. Barnali Bhuyan, learned Additional Public Prosecutor, Assam submitted that the learned Sessions Judge, Kokrajhar in Sessions Case No. 59/2012 arising out of Fakiragram Police Station Case No. 30/2012 (corresponding to G.R. Case No. 271/2012) on proper scrutiny of the evidence as well as the exhibits adduced by the prosecution, rightfully convicted the accused-appellant and as such, the impugned Judgment and Order of conviction and sentence dated 22.01.2015 need not be interfered stating further that whatever contradictions were there, those were very minor and the defence failed to pull down the evidence of the eye witnesses present at the place of occurrence during the time of the incident. 18. Let us briefly discuss the evidence adduced by the prosecution witnesses. 19. 18. Let us briefly discuss the evidence adduced by the prosecution witnesses. 19. PW.1 Sri Paritosh Devnath, an ocular witness to the incident in his examination-in-chief deposed before the Trial Court that on 26.04.2012 (wrongly typed in the paper book as 20.04.2012, verified from the original) around 07:00 pm while he along with Sanjoy Roy (PW.3) were at Baldia Batan Gaon, Rupak Roy came and informed them that the accused Bipul Roy had vandalized the Kali Mandir at Baldia Batan Gaon. Then he along with Sanjoy (PW.3) and Raju (PW.6) left for the said temple but did not find the accused Bipul Roy and found the motor cycle of said Rupak Roy in a smashed condition. There they also found Rupak and he told them that Bipul Roy had damaged his said motor cycle. PW.1 deposed that thereafter, he along with, Rupak, Tikiram (PW.2) and Sanjay (PW.3) went to the house of the accused Bipul Roy in search of him, to enquire the reason of damaging the motor cycle of Rupak Roy and on reaching near the house of the accused Bipul Roy, said accused chased them with a lathi and he along with Tikiram and Sanjay could fled to a little distance but Rupak Roy could not ran away and then they heard the scream of Rupak. PW.1 also deposed on hearing the scream of Rupak, he immediately ran back towards Rupak Roy and saw accused Bipul Roy alighted over Rupak and was stabbing Rupak in his abdomen and chest with a Khukri. Then the PW.1 broke a branch of a tree from nearby and pushed the same on the face of Bipul and pulled Rupak away. PW.1 deposed that Rupak was not in a state to talk and by that time other people gathered at the place of occurrence, an 108 Ambulance was called and Rupak was sent to the Hospital and later he got the information that on his way to the hospital Rupak succumbed to his injuries. He also deposed that the accused killed Rupak Roy with the Material Exhibit-1, Khukri. During his cross examination by the defence said PW.1 stated that there was darkness at the time of the incident and he did not remember while chasing them whether the accused had a dao in his hand or not. PW.1 denied the suggestion that the accused Bipul Roy did not kill Rupak. During his cross examination by the defence said PW.1 stated that there was darkness at the time of the incident and he did not remember while chasing them whether the accused had a dao in his hand or not. PW.1 denied the suggestion that the accused Bipul Roy did not kill Rupak. On his re-examination on 22.10.2014, PW.1 deposed before the Trial Court that police brought him to the Court on 27.04.2012 and he made statements before the Magistrate with regard to the incident and had also put his thumb impression on his said statements. PW.1 proved Exhibit-10 as his said statement before the Magistrate. During his re-cross examination by the defence, PW.1 stated that he did not know how to read and write, but the Magistrate had read out the statements that he made before him. 20. PW.2 Sri Tikiram Roy, another ocular witness to the incident deposed before the Trial Court that one evening during last Bohag (fourth Assamese month, April to May in English) while he was at his house Raju Roy (PW.6) and Rupak Roy came to his house and stated that the accused had vandalised the Kali Mandir in their village and then he went to the Kali Mandir but did not find the accused therein. PW.2 deposed that thereafter, he along with Rupak, Paritosh (PW.1) and Sanjay (PW.3) went to the house of the accused to ask him about the incident and then the accused Bipul came there with a Khukri in his hand and tightened his hold over Rupak and Rupak fell down and then the accused alighted over Rupak and stabbed him in his abdomen with the Khukri. He further deposed that the PW.1 with a branch of tree pushed the accused in his face and then the accused released Rupak and ran away. PW.2 deposed that Rupak sustained bleeding injuries in his abdomen and people gathered therein. Then Rupak was taken to Kokrajhar hospital in a 108 Ambulance and that he did not accompany Rupak. A little later he got the information that Rupak had died. During his cross examination by the defence said PW.2 stated that he did not remember the date of the incident and that he did not see the Khukri in the Court. Then Rupak was taken to Kokrajhar hospital in a 108 Ambulance and that he did not accompany Rupak. A little later he got the information that Rupak had died. During his cross examination by the defence said PW.2 stated that he did not remember the date of the incident and that he did not see the Khukri in the Court. He also stated that the incident occurred around 07:00 pm and that a jungle was near by the place of occurrence and denied the suggestion that he did not tell police that the accused had killed the deceased Rupak. On his re-examination on 20.09.2014 said PW.2 deposed before the Trial Court and regarding the incident police brought him to the Court on 27.04.2012 and he made statements before the Magistrate in that regard and that Exhibit-9 was his said statement, wherein he had put his thumb impression. During his re-cross examination by the defence said PW.2 stated that after recording his statement, the Magistrate did not read over the contents to him but the Magistrate wrote down the statement in the manner as he had stated. 21. PW.3 Sri Sanjoy Roy is the 3rd ocular witness to the incident. He deposed before the Trial Court that on 26.04.2012 around 07:00 pm his co-villager Raju Roa (PW.6) came and told him that accused Bipul Roy had vandalised the Kali Mandir situated in their village. Then he along with Paritosh (PW.1), Raju (PW.6), Tikiram (PW.2) and Rupak went to the Kali Mandir but they did not find the accused Bipul Roy in the temple. PW.3 deposed that then they proceeded to the house of the accused to inquire about the incident and that before they could reach the house of Bipul Roy, he came there began to chase them with something in his hand. PW.3 also deposed that though he along with Paritosh and Tikiram ran away but Rupak fell down and he heard the cry of Rupak Roy seeking help. PW.3 also deposed that though he along with Paritosh and Tikiram ran away but Rupak fell down and he heard the cry of Rupak Roy seeking help. Then Paritosh (PW.1) was the first to go near Rupak and little later he went near Rupak followed by Tikiram (PW.3) and on reaching there he saw that the accused alighted over the body of Rupak and was stabbing him in his chest and abdomen with a Khukri and then Paritosh (PW.1) with the branch of a tree pushed Bipul in his face whereupon the accused released Rupak and family members of Bipul and took him away. PW.3 deposed that when people gathered in the place of occurrence, they sent Rupak in a 108 Ambulance to the Kokrajhar Hospital, but on his way to the hospital Rupak succumbed to his injuries. PW.3 identified the Material Exhibit-1 the Khukri that was used by the accused Bipul in commission of the offence. During his cross examination by the defence PW.3 stated that while chasing them the accused had a Khukri in his hand and that there was a little darkness at the time of the incident. PW.3 denied the suggestion that he did not see the Khukri in the hand of the accused and also denied that the accused did not chase them. He also denied the suggestion that the accused did not kill Rupak and that he had made false statement. During his re-examination on 20.09.2014, PW.3 deposed before the Trial Court that on 27.04.2012 police brought him to the Court at Kokrajhar for recording of his statement in connection with the case and he accordingly gave his statement about the incident before the Magistrate and after its recording he had put his signature on it and identified the same Exhibit-8 and his signature on it. During his re-cross examination by the defence PW.3 denied the suggestion that police had tutored him and stated that the Magistrate had recorded his statements as per his narration. However, he stated that he did not go through the statements that he made before the Magistrate and that the Magistrate did not read over his statements to him. 22. PW.4 Smti. However, he stated that he did not go through the statements that he made before the Magistrate and that the Magistrate did not read over his statements to him. 22. PW.4 Smti. Gita Rani Roy, the informant of the case and a reported witness in her evidence deposed before the Trial Court that the deceased Rupak was her nephew who was a driver in the BMC and on the date of the incident on 26.04.2012 at around 01:30 pm he went to Kokrajhar in his motor cycle to attend a marriage and on the same day around 07:00 pm her sister in law Bijulee Roy informed her that the accused Bimal Roy stabbed Rupak with a Khukri. She further deposed that at that time her husband was in the market who on his return told her that Rupak was stabbed by the accused Bimal with Khukri and was taken to hospital. Later in the night she came to know that Rupak had died and on the next day morning she lodged the ejahar before Fakiragram Police Station. She deposed that she saw the dead body of Rupak when it was brought to her house. During her cross examination by the defence, said PW.4 stated that she did not write the ejahar and the name of the scribe was not mentioned in it. 23. PW.5 Sri Ram Krishna Roy is also hearsay witness who deposed before the learned Trial Court that while he was in a marriage on the date of the incident, he got the information that fight had taken place in the village and he went there along with some villagers and found a 108 Ambulance that had already arrived and had departed. He came to know from the villagers that the accused Bimal assaulted Rupak and that he was taken to hospital in a 108 Ambulance. Then he informed the Officer-in-charge of Fakiragram Police Station about the said incident over phone and that little later police came to the place of occurrence. In his cross examination by the defence, PW.4 stated that he had not seen the incident and also did not see the accused on the day of the incident. 24. PW.6 Sri Raju Kumar Roy, in his evidence-in-chief deposed before the Trial Court that the deceased Rupak Roy lived near his house and that the incident took place about an year back during evening. 24. PW.6 Sri Raju Kumar Roy, in his evidence-in-chief deposed before the Trial Court that the deceased Rupak Roy lived near his house and that the incident took place about an year back during evening. He deposed that on the date of the occurrence Rupak called him away from to the Kali temple in the village stating that someone had vandalized the said temple. On coming with Rupak, he saw the accused Bipul was striking against the tin walls of the temple with a lathi. Seeing them the accused came charging them in order to beat them and leaving the motor cycle, they ran away from the said place and called the villagers to the front of the temple. On reaching the temple he saw the bike of Rupak in a broken condition and they did not find the accused in the temple. PW.6 deposed that a little later he heard that the accused had stabbed Rupak with a dagger and then he went to the place of occurrence and found people holding the abdomen of Rupak as he had sustained injury in it. He deposed that later a 108 ambulance arrived and Rupak was taken on it and that after about an hour he heard that Rupak had died. During his cross examination by the defence, said PW.6 stated that he did not remember the date of the incident and did not go to the house of the accused. 25. PW.7 Dr. Dipak K. Ramchiary, the Autopsy Doctor who conducted post mortem examination on the person of the deceased on 27.04.2012, in his evidence-in-chief before the learned Trial Court deposed that during his said examination he had found the following injuries:-- External appearance An average built male dead body of approximately 22 years of age, with Rigor mortis. Wound position and character Large incised wound over the right waist, prolapse of omentum and small bowel. Abdomen Teared with right waist. Large incised wound prolapsing the omentum of some part of small bowel. Massive hamoperitoneum was seen. Cranium, spinal cord and kidney Healthy. Severely injury over right kidney due to incised wound. The autopsy Doctor PW.7 opined that the cause of death was due to hemorrhagic and shock following deep incised penetrating injury over right waist leading to injury to right kidney and small bowel. Massive hamoperitoneum was seen. Cranium, spinal cord and kidney Healthy. Severely injury over right kidney due to incised wound. The autopsy Doctor PW.7 opined that the cause of death was due to hemorrhagic and shock following deep incised penetrating injury over right waist leading to injury to right kidney and small bowel. PW.7 identified the Post Mortem Examination Report of the deceased Rupak, Exhibit-2 and his signature on it. During his cross examination the Autopsy Doctor PW.7 stated that at the time of examination the injury upon the dead body of Rupak was within 24 hours. 26. PW.8 Sri Prakash Roy is the seizure witness of the Material Exhibit-1 i.e., the Khukri and before the learned Trial Court he deposed that the accused Bipul Roy produced the Khukri from his house and gave it to the police and thereafter police seized the same and he as a witness signed the seizure list. During his cross examination said PW.8 stated that he signed the seizure list in the house of the accused and that Material Exhibit-K seized in the case is in the Court today. 27. PW.9 Sri Rohit Chandra Roy deposed before the Trial Court that deceased Rupak Roy was his nephew and when he reached the place of occurrence at the time of the incident, he found that blood was coming out of the abdomen of said injured Rupak and finding Rupak in such a state, he informed 108 Ambulance, in which he was taken to the Kokrajhar hospital and that on his way to the hospital said Rupak succumbed to his injuries. He further deposed that PW.2 Tikiram and PW.5 Ram Krishna Roy told him that the accused Bipul had stabbed Rupak in his abdomen with a Khukri. During his cross examination by the defence said PW.9 stated that police did not interrogate him and he denied the suggestion that the accused Bipul did not kill Rupak Roy. 28. PW.10 Sri Ratin Kumar Roy is another seizure witness of the Material Exhibit-K, who in his deposition before the learned Trial Court deposed that he saw police seizing a Khukri from the possession of accused Bipul Roy and thereafter, he signed the seizure list that was prepared by the police. 28. PW.10 Sri Ratin Kumar Roy is another seizure witness of the Material Exhibit-K, who in his deposition before the learned Trial Court deposed that he saw police seizing a Khukri from the possession of accused Bipul Roy and thereafter, he signed the seizure list that was prepared by the police. During his cross examination by the defence, said PW.10 stated that he did not see the incident and also did not see the accused producing the dao and giving it to the police. 29. PW.11 Sri Jayanta Kr. Barman is the Investigating Officer of the case and he deposed before the learned Trial Court that it is the PW.5 who had informed the Officer-in-Charge of Fakiragram Police Station on 26.04.2012 around 08:15 pm that a youth named Bipul Roy of Mukigaon had caused grievous injury to a youth named Rupak Roy, a co-villager of the complainant, by stabbing him in his abdomen with dagger and that local people had sent the said injured to Kokrajhar Hospital in a 108 Ambulance. PW.11 deposed that on receipt of the said information he made G D entry No. 609 (Exhibit 4) dated 26.04.2012 and proceeded to the place of occurrence. He also deposed that he met PW.5 Ram Krishna Roy and other witnesses at the place of occurrence and recorded their statements and apprehended the accused Bipul Roy. He also deposed that after apprehending the accused, during the night itself he came to know that the injured Rupak had already died in Kokrajhar hospital and on the next day PW.4 Gita Rani Roy filed the FIR of the case. PW.11 further deposed that he submitted charge sheet in the case along with the extract of the G D entry. During his examination said I.O. further deposed that he made the Exhibit-5, i.e., the GD entry No.622 on 27.04.2012 in Fakiragram Police Station before proceeding for leading to discovery of the Exhibit-6, Khukri the weapon used in the crime. PW.11 deposed that the Material Exhibit K was seized by him on being shown by the accused Bipul Roy. During his cross examination said PW.11 stated that on the night of the incident he recorded the statement of five witnesses and did not seize blood stained cloths of the deceased and that in the seizure memo he did not state the place from where said Material Exhibit-K was seized by him. 30. During his cross examination said PW.11 stated that on the night of the incident he recorded the statement of five witnesses and did not seize blood stained cloths of the deceased and that in the seizure memo he did not state the place from where said Material Exhibit-K was seized by him. 30. PW.12 Sri Chandranshu Chaturvedy was the concerned SDJM(S) at Kokrajhar on 27.04.2012 and during his examination-in-chief he deposed before the Trial Court that PW.1 (Paritosh Devnath), PW.2 (Tikriram Roy) and PW.3 (Sanjoy Kumar Roy) appeared before him on 27.04.2012 in connection with said G R Case No. 271/2012 and recorded their statements under Section 164 CrPC that are Exhibits – 10, 9 and 8, respectively and he identified those Exhibits including his signature on those statements. PW.12 also deposed that PW.3 (Sanjoy Kumar Roy) had given his signature on his statement in his presence, whereas PW.1 (Paritosh Devnath) and PW.2 (Tikiram Roy) had put their thumb impression in their statements in his presence. During his cross examination by the defence said PW.12 stated that in the Exhibits – 9 and 10, the statements of PW.2 (Tikiram Roy) and PW.1 (Paritosh Devnath) there were no mention as to by whom the Thumb Impression of those witnesses had been endorsed. 31. PW.13 Sri Bipul Saikia is the concerned Circle Officer as well as the concerned Executive Magistrate who conducted the inquest on the dead body of the deceased Rupak Roy on 27.04.2012 in RNB Civil Hospital at Kokrajhar. In his evidence said PW.13 deposed before the Trial Court that during the inquest on the person of the deceased Rupak Roy a cut mark of sword was found on the right side of his belly (abdomen) measuring about 3” in width was detected and he deposed that murder of said Rupak Roy was committed by the accused Bipul Roy. PW.13 proved the Inquest Report of the deceased Rupak Roy, Exhibit-11 and his signature on the said report. During his cross examination by the defence, said PW.13 stated that in the said Inquest Report he did not mention the height of the dead body (of Rupak Roy) nor the colour of wearing apparels found on the said dead body. 32. During the recording of statements under Section 313 CrPC on 30.08.2013, the accused Bipul Roy denied all the accusation made against him by the prosecution witnesses while recording their evidence. 32. During the recording of statements under Section 313 CrPC on 30.08.2013, the accused Bipul Roy denied all the accusation made against him by the prosecution witnesses while recording their evidence. On being asked the said accused stated that he would adduce evidence. 33. During his re-recorded statements under Section 313 CrPC recorded by the learned Trial Court on 19.11.2014 on being pointed out that the Circle Officer-cum-Executive Magistrate while conducting the inquest on the person of the deceased Rupak Roy found three inches width cut injury caused with sward (dagger) on the right side of his belly (abdomen) and on being asked what he had to say about it, the accused stated that he was not well, he did not know as to who killed the deceased and he was not mentally sound. The accused on being asked stated that he will not give any evidence in the case from his side. 34. We have seen that PW.1 Paritosh Devnath, PW.2 Tikiram Roy and PW.3 Sanjoy Roy, the three eye witnesses to the incident deposed that the accused alighted over Rupak and stabbed Rupak with Khukri in his abdomen and chest. 35. Exhibits -8, 9 and 10 placed by the prosecution in the case were Section 164 CrPC statements of the PWs. 1, 2 and 3 recorded by the Sub-Divisional Judicial Magistrate (Sadar), Kokrajhar on 27.04.2012, i.e., on the very next day of the incident that occurred around 07:00 pm on the previous day 26.04.2012. The concerned Magistrate PW.12 who recorded Section 164 CrPC statements of those three ocular witnesses PWs. 1, 2 and 3 proved their statements, i.e., Exhibits -8, 9 and 10. On perusal of those Exhibits -8, 9 and 10, it can be seen that all those three ocular witnesses (PWs. 1, 2 & 3) stated that the accused stabbed the dagger in the abdomen of the deceased Rupak. We found that the ocular evidence of PWs. 1, 2 and 3 were consistent and reliable and remained unshaken by the defence. 36. We noticed that PW.7, Autopsy Doctor, who conducted the post mortem examination on the person of the deceased Rupak Roy proved the Post Mortem Examination Report of the said deceased Rupak Exhibit-2. We found that the ocular evidence of PWs. 1, 2 and 3 were consistent and reliable and remained unshaken by the defence. 36. We noticed that PW.7, Autopsy Doctor, who conducted the post mortem examination on the person of the deceased Rupak Roy proved the Post Mortem Examination Report of the said deceased Rupak Exhibit-2. The medical evidence available in the case shows that the deceased Rupak sustained -large incised wound over the right waist, with prolapse of omentum and small bowel, his abdomen was teared in right waist and there was severe injury over his right kidney due to incised wound. As per the opinion of said Autopsy Doctor PW.7 the cause of death of the deceased was due to hemorrhagic and shock following deep incised penetrating injury over right waist leading to injury to right kidney and small bowel. Even this medical evidence of PW.7 could not be unturned by the defence. 37. The Hon’ble Supreme Court in the case of Kathi Bharat Vajsur -Vs- State of Gujarat, reported in (2012) 5 SCC 724 after discussing various judgments of the Hon’ble Apex Court relating to ocular evidence vis-a-vis medical evidence have held that — When the medical evidence is in consonance with the principal part of the oral/ocular evidence thereby supporting the prosecution story, there is no question of ruling out the ocular evidence merely on the ground that there are some inconsistencies or contradictions in the oral evidence. 38. In the case in hand we found that the medical evidence fully supports the prosecution. We have already observed that the testimonies of the eye witnesses PWs. 1, 2 and 3 to be consistent and reliable. As such the contention of the appellant that the evidence of eye witnesses should not be considered as there were contradictions between their statements made under Section 161 CrPC as well as under Section 164 CrPC cannot be considered and we reject the same. 39. It is settled that whether the accused deserves conviction under Section 304 Part-I or Part-II of Section 304 IPC depends upon the proper appreciation of the evidence on record. 39. It is settled that whether the accused deserves conviction under Section 304 Part-I or Part-II of Section 304 IPC depends upon the proper appreciation of the evidence on record. It is well settled that it is not possible to enter into the mind of the accused but his intention can be ascertained from the weapon used and part of the body chosen by the accused for assault and the consequential nature of the injury caused and sustained by the victim. 40. The Hon’ble Supreme Court, relating to ‘single injury’ in the case of Mahesh Balmiki-Vs- State of MP, reported in (2000) 1 SCC 319 have held that — “Adverting to the contention of a single blow, it may be pointed out that there is no principle that in all cases of a single blow Section 302 IPC is not attracted. A single blow may, in some cases, entail conviction under Section 302 IPC, in some cases under Section 304 IPC and in some other cases under Section 326 IPC. The question with regard to the nature of offence has to be determined on the facts and in the circumstances of each case. The nature of the injury, whether it is on the vital or non-vital part of the body, the weapon used, the circumstances in which the injury is caused and the manner in which the injury is inflicted are all relevant factors which may go to determine the required intention or knowledge of the offender and the offence committed by him. In the instant case, the deceased was disabled from saving himself because he was held by the associates of the appellant who inflicted though a single yet a fatal blow of the description noted above. These facts clearly establish that the appellant had the intention to kill the deceased. In any event, he can safely be attributed the knowledge that the knife-blow given by him was so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death.” 41. The Hon’ble Supreme Court, in the case of Bavisetti Kameswara Rao -Vs- State of A.P., reported in (2008) 15 SCC 725 , after considering its earlier judgments, with regard to ‘single injury’ have held that — “13. The Hon’ble Supreme Court, in the case of Bavisetti Kameswara Rao -Vs- State of A.P., reported in (2008) 15 SCC 725 , after considering its earlier judgments, with regard to ‘single injury’ have held that — “13. It is seen that where in the murder case there is only a single injury, there is always a tendency to advance an argument that the offence would invariably be covered under Section 304 Part II IPC. The nature of offence where there is a single injury could not be decided merely on the basis of the single injury and thus in a mechanical fashion. The nature of the offence would certainly depend upon the other attendant circumstances which would help the court to find out definitely about the intention on the part of the accused. Such attendant circumstances could be very many, they being (i) whether the act was premeditated; (ii) the nature of weapon used; (iii) the nature of assault on the accused. This is certainly not an exhaustive list and every case has to necessarily depend upon the evidence available. As regards the user of screwdriver, the learned counsel urged that it was only an accidental use on the spur of the moment and, therefore, there could be no intention to either cause death or cause such bodily injury as would be sufficient to cause death. Merely because the screwdriver was a usual tool used by the accused in his business, it could not be as if its user would be innocuous. 14. In State of Karnataka v. Vedanayagam [ (1995) 1 SCC 326 ] this Court considered the usual argument of a single injury not being sufficient to invite a conviction under Section 302 IPC. In that case the injury was caused by a knife. The medical evidence supported the version of the prosecution that the injury was sufficient, in the ordinary course of nature to cause death. The High Court had convicted the accused for the offence under Section 304 Part II IPC relying on the fact that there is only a single injury. In that case the injury was caused by a knife. The medical evidence supported the version of the prosecution that the injury was sufficient, in the ordinary course of nature to cause death. The High Court had convicted the accused for the offence under Section 304 Part II IPC relying on the fact that there is only a single injury. However, after a detailed discussion regarding the nature of injury, the part of the body chosen by the accused to inflict the same and other attendant circumstances and after discussing clause Thirdly of Section 300 IPC and further relying on the decision in Virsa Singh v. State of Punjab [ AIR 1958 SC 465 ] the Court set aside the acquittal under Section 302 IPC and convicted the accused for that offence.” 42. As noted above, from the medical evidence adduced by the prosecution it is clear that the deceased sustained a ‘single injury’ but the said single large incised injury on the abdomen of the deceased was so severe, penetrating and brutal that it tore his right waist leading to injuries on his right kidney and small bowel. The Circle Officer-cum-Executive Magistrate, Kokrajhar, PW.13 who conducted the inquest on the person of the deceased Rupak during the inquest found a cut mark of sword (dagger) on the right side of belly of the deceased measuring about 3” (three inches) in width and the said PW.12 proved the Inquest Report of the said deceased (Exhibit-11) and his signature on it. 43. It is in evidence that accused was vandalizing the temple, Rupak told Raju (PW.6) and others, Rupak and Raju came to the temple with motor cycle of Rupak and found the accused striking the tin walls of the temple and seeing them, the accused came charging towards them in order to beat them and they ran away, leaving the motor cycle. When Rupak and PWs. 1, 2 and 3 went to the temple again they saw the motor cycle of Rupak in a broken condition. As they did not find the accused in the temple, they proceeded towards the house of the accused to enquire and that stage the accused chased them and Rupak could not ran away whereas the other three somehow managed. 1, 2 and 3 went to the temple again they saw the motor cycle of Rupak in a broken condition. As they did not find the accused in the temple, they proceeded towards the house of the accused to enquire and that stage the accused chased them and Rupak could not ran away whereas the other three somehow managed. After hearing the cry from Rupak, at first PW.1 came near him followed by PW.3 and then PW.2 and all of them saw the accused stabbing Rupak. 44. It is not the case of the defence that the offence occurred out of a sudden quarrel ant and that the deceased was stabbed in the heat of the moment. On the contrary, considering the depositions of prosecution witnesses it can be seen that the accused prepared himself to take action against those who had objected his work of vandalising the temple as can be seen that the motor cycle of the deceased was also found in broken condition. A, deadly weapon of Khukri was used in the crime and grievous injuries on the vital parts of the body of the deceased were found. As the deadly weapon has been used causing the injury in the abdomen/stomach, the Court is of the view that the accused appellant has been rightly convicted for the offence under Section 302 of the IPC. 45. So far as the reliance placed upon the decision of this Court in the case of Ripunjoy Borgohain -Vs-State of Assam reported in 1998 (4) GLT 502 on behalf of the appellant concerned; considering the decisions of the Hon’ble Apex Court, the evidence led by the prosecution, the weapon used, nature of injuries caused on the vital part of the body, noted above, we found that the said decision shall not be applicable in the present case. 46. For the reasons above, we are in complete agreement with the view taken by the learned Trial Court. 47. Accordingly, the impugned judgment of conviction and sentence dated 22.01.2015, passed by the learned Sessions Judge, Kokrajhar in Sessions Case No. 59/2012, arising out of Fakiragram Police Station Case No. 30/2012, (corresponding to G R No. 271/2012) does not call for any interference. 48. Resultantly, this criminal appeal stands dismissed. 49. 47. Accordingly, the impugned judgment of conviction and sentence dated 22.01.2015, passed by the learned Sessions Judge, Kokrajhar in Sessions Case No. 59/2012, arising out of Fakiragram Police Station Case No. 30/2012, (corresponding to G R No. 271/2012) does not call for any interference. 48. Resultantly, this criminal appeal stands dismissed. 49. Registry shall return the relevant records of Sessions Case No. 59/2012to the Court of learned Sessions Judge, Kokrajhar along with a copy of this order. 50. A copy of this order be also furnished to the accused appellant Sri Bipul Ray @ Roy, Son of Late Jadab Ray, through the Superintendent cum Jailor, Kokrajhar District Jail, Kokrajhar.