JUDGMENT : 1. Heard learned Amicus Curiae, Mrs. RD Mozumdar in Crl.A.(J) No. 67/2019 and Ms. D Saikia in Crl.A.(J) No. 8/2019 for the appellants and the learned Additional Public Prosecutor, Mr. M Phukan. 2. Both these appeals having arisen out of the same judgment and order, passed by the learned Sessions Judge, Sivasagar in Sessions Case No. 103(S-S)/2017 are taken up for hearing and disposal by this common judgment. 3. The appellants were convicted under Section 302 of the IPC and sentenced to imprisonment for life and also fine of Rs. 5,000/- each with default stipulation. 4. According to prosecution case, the 2 (two) appellants and their father (deceased) picked up quarrel and in course of the quarrel, the appellants inflicted injuries to the deceased by dealing blows with axe and spade. Immediately after the occurrence, the victim was shifted to Dibrugarh Medical College and Hospital where he succumbed to the injuries. An FIR was lodged by the wife of the deceased (PW1) on the basis of which, Police registered Demow P.S. Case No. 13/2017 under Sections 326/34 of the IPC and commenced the investigation. During the investigation, the victim died and therefore, upon prayer of the Investigating Officer, Section 302 of the IPC was added. In course of investigation, Police recorded the statement of the witnesses under Section 161 of the Cr.PC, prepared the inquest report, got statement of 2 (two) of the witnesses recorded under Section 164 of the Cr.PC by the Judicial Magistrate and sent the body for post-mortem examination. Dr. Debarshee Chakraborty, PW4 conducted the post-mortem examination on the body of the deceased. The Autopsy Doctor found the following injuries on the body of the deceased. "(ii) A surgically stitched wound of 6 cm, repaired with 7 No. of stitches is found present over right fronto-parietal area, 2 cm to the right of injury number 1. On removing of the stitches the margins of the wound are found regular and clean-cut. (iii) A surgically stitched wound of 6 cm repaired with 7 no. of stitches is present over chin. On removal of the stitches, the margins of the wound are found regular and clean-cut. (iv) A surgically stitched wound of 4 cm repaired with 4 no. of stitches is found present over right parietal area, 4 cm to the right of midline and 4 cm behind vertex. of stitches is present over chin. On removal of the stitches, the margins of the wound are found regular and clean-cut. (iv) A surgically stitched wound of 4 cm repaired with 4 no. of stitches is found present over right parietal area, 4 cm to the right of midline and 4 cm behind vertex. On removal of the stitches the margins of the wound are found regular and clean-cut. (v) A surgically stitched wound of 1 cm repaired with 1 no. of stitch is present 0.5 cm to the lateral end of left eyebrow. The margins of the wound are irregular and contused. (vi) A surgically stitched wound of 1 cm repaired with 1 no. of stitch is present over the left side of face, 2 cm in front of Tragus of the left ear. On removal of the stitch, the margins of the wound are found irregular and contused. (vii) A surgically stitched wound of 1.5 cm repaired with 2 no. of stitches is found present over left malar area 2.5 cm below the left eye. On removal of the stitches, the margins of the wound are found regular and clean-cut. (viii) A surgically stitched wound of 1 cm repaired with 1 no. of stitch is found present 1 cm lateral to the lateral end of right eyebrow. The margins of the wound are found irregular and contused." In the opinion of the Doctor, death was caused due to head injury which was antemortem in nature. The Doctor further opined that only the injury No. 2 on the head was sufficient to cause death of a person in ordinary course. 5. On conclusion of the investigation, charge-sheet was laid against the appellants under Sections 304/34 of the IPC and eventually both of them stood trial. 6. In course of trial, charge was framed against both the appellants under Sections 302/34 of the IPC to which they pleaded not guilty. 8 (eight) witnesses were examined by the prosecution to establish the charge. 1 (one) witness was also examined by the Court as Court witness. 7. After conclusion of the evidence, the appellants were examined under Section 313 of the Cr.PC, wherein they pleaded innocence. 8 (eight) witnesses were examined by the prosecution to establish the charge. 1 (one) witness was also examined by the Court as Court witness. 7. After conclusion of the evidence, the appellants were examined under Section 313 of the Cr.PC, wherein they pleaded innocence. The appellant Prabhat Gogoi stated during examination under Section 313 of the Cr.PC that when he and his brother were engaged in a quarrel, the deceased being their father tried to intervene and sustained injuries by falling on the ground. On appreciation of the evidence, the learned Sessions Judge convicted the appellants under Section 302 of the IPC and awarded sentence as indicated above. 8. On our assessment of the evidence, we find that the prosecution's case is banking on the oral testimony of PW1 and PW7, who claimed to be the eye-witnesses of the occurrence and the rest of the witnesses were post occurrence witnesses and as such, they did not have any personal knowledge about the occurrence. 9. PW1, the mother of the appellants stated in her evidence that at about 2 o'clock in the afternoon, the appellants were quarrelling on the matter of bringing the cows from the field and during such quarrel, the accused, Prabhat Gogoi hit the deceased with an axe on his head. Thereafter, the accused, Nabin Gogoi also hit the deceased with spade and axe on his head and neck and as a result, he sustained severe injuries. Having seen the occurrence, she raised alarm, hearing which the neighbouring people came and shifted the injured to the Hospital where he died after 2 (two) days. During cross-examination, the PW1 stated that initially quarrel started between the 2 (two) appellants and when the deceased went to intervene and hold the axe and spade to restrain the appellants from quarrelling, he fell down. However, she denied the suggestion put by the defendants that the deceased sustained the injuries by falling. Statement of this witness was recorded under Section 164 of the Cr.PC, wherein also she stated in a consistent manner that initially quarrel took place between the 2 (two) appellants and when the deceased intervened to dissuade them, both the appellants inflicted injuries to the victim. 10. PW7, Loknath Hatimuria testified that hearing hue and cry at the residence of the appellants, he came out and noticed, that both the appellants were engaged in quarrel with their father (the deceased). 10. PW7, Loknath Hatimuria testified that hearing hue and cry at the residence of the appellants, he came out and noticed, that both the appellants were engaged in quarrel with their father (the deceased). He intervened and disbursed them. However, again the appellant Prabhat Gogoi came and assaulted the deceased. In his statement recorded under Section 164 of the Cr.PC this witness stated that having seen the appellants and their father scuffling, he went there and disbursed them but after a while again the appellant Robin fetched a hoe from his house and dealt blows on the head of the deceased. He further stated in his statement recorded under Section 164 of the Cr.PC that Prabhat Gogoi had fled away from the place of occurrence. What we notice from the evidence of this witness is that his statement before the Magistrate under Section 164 of the Cr.PC and the evidence in Court is self contradictory on material facts, inasmuch as, in his statement recorded under Section 164 of the Cr.PC, he stated that it was Nabin who inflicted injuries to the deceased and Prbhat ran away from the place, whereas in Court he stated that it was Prabhat who inflicted the injuries. In view of the above self contradictory and mutually destructive statements, we are of the considered opinion that this PW7 perhaps was not an eye-witness to the occurrence and as such no credibility can be attached to his testimony. 11. PW2 arrived immediately after the occurrence and learnt about the occurrence from one Bikash Gogoi. PW3 came to learn about the occurrence later on from one Dilip Gogoi and therefore, testimony of these witnesses appears to be hearsay. Out of the 2 (two) witnesses, who claimed to be eye-witnesses of the occurrence, we find that testimony of PW7 is not worthy of placing any reliance, for the reasons indicated above. However, we find the evidence of PW1, the mother of the appellants fully consistent and coherent throughout the entire proceeding and there is no reason to view the oral testimony of PW1 with any suspicion, inasmuch as, PW1 being the mother of the appellants would be the last person to falsely implicate her sons. This apart, her oral testimony also finds support from the medical evidence with regard to the injuries and the weapons used. This apart, her oral testimony also finds support from the medical evidence with regard to the injuries and the weapons used. This being the position, we find no reason to differ with the learned Sessions Judge in holding that the appellants inflicted injuries to the victim which led to his death. 12. In fact, the learned Amicus Curiae, Mrs. RD Mozumdar also has not seriously contested the findings of the learned Sessions Judge that the injuries causing death of the deceased were inflicted by the present appellants. However, the contention of the learned Amicus Curiae is that there was quarrel and scuffle between the appellants and when the father came later and intervened to dissuade them, he was also inflicted injuries in course of the quarrel and scuffle, and as such there was no intention or pre-meditation on the part of the appellants to cause death of the deceased. Conviction of the appellants in the above facts and circumstances could not have been recorded under Section 302 of the IPC, and at best, a conviction under Section 304 of the IPC for culpable homicide not amounting to murder could have been recorded, submits learned Amicus Curiae. 13. The learned Additional Public Prosecutor, Mr. M Phukan also very fairly conceded to the above submission of the learned Amicus Curiae. 14. Although the medical evidence transpires that there were multiple injuries but only one fatal injury was inflicted which caused the death of the deceased. Evidently, initially quarrel took place between the two appellants. When the deceased came later on and tried to intervene and dissuade the appellants, he was also assaulted by the appellants causing the injuries leading to his death. Thus the fact, that initially scuffle took place between the appellants and the deceased came later and received the injuries in course of the quarrel clearly demonstrates the absence of pre-meditation or intention on the part of the appellants to cause death of the deceased. Evidently the deceased died after 2 (two) days of treatment and only one injury was fatal and the injuries were inflicted at the heat of passion in course of quarrel and scuffle. 15. Evidently the deceased died after 2 (two) days of treatment and only one injury was fatal and the injuries were inflicted at the heat of passion in course of quarrel and scuffle. 15. Having taken note of the above facts and circumstances, which speaks loud and clear that there was no pre-meditation nor any intention to cause death of the deceased and the injuries were inflicted in the course of quarrel at the heat of passion, we are of the considered opinion that conviction under Section 302 of the IPC could not have been recorded against the appellants and therefore, the impugned judgment of conviction and sentence of the appellants under Section 302 of the IPC cannot be sustained. Accordingly, we set aside the conviction and sentence of the appellants under Section 302 of the IPC, instead, convict them under Section 304 Part-I of the IPC. Having modified the conviction, we sentence the appellants to undergo rigorous imprisonment for 10 (ten) years. We, however, do not interfere with the sentence of fine and the default sentence of imprisonment. We also do not interfere with the impugned judgment with regard to the order of the learned Sessions Judge pertaining to compensation to the victim. 16. Both the appeals thus stands partly allowed. 17. Send down the records. 18. This Court appreciates the assistance rendered by the learned Amicus Curiae, Mrs. RD Mozumdar in Crl.A.(J) No. 67/2019 and Ms. D Saikia in Crl.A.(J) No. 8/2019 and directs that an amount of Rs 7,500/- each be paid to them as honorarium for their assistance.