Research › Search › Judgment

Gauhati High Court · body

2020 DIGILAW 465 (GAU)

Gokul Mech v. State Of Assam

2020-05-06

HITESH KUMAR SARMA, SUMAN SHYAM

body2020
JUDGMENT Hitesh Kumar Sarma, J - This appeal is directed against the judgment and order dated 17.07.2017, passed in Sessions Case No. 107/(CH)2015, by the learned Additional Sessions Judge-2, FTC, Tinsukia convicting the appellant and sentencing him to rigorous imprisonment for life and to pay fine of Rs. 20,000/-, and in default of payment of the fine, further rigorous imprisonment for 6 (six) months for offence punishable under Section 302 of the IPC. 2. We have heard Mr. AK Ahmed, learned counsel for the appellant as well as Ms. B Bhuyan, learned Additional Public Prosecutor appearing for the State respondent No. 1. We have also perused the trial court record and the impugned judgment. 3. The fact of the case is that on the date of occurrence, i.e., on 31.12.2014, at about 3:00 pm, Numal Gogoi, the brother of PW2 (informant) went to the market situated at Chapakhowa for purchasing some pork. The appellant is a pork seller there in the said market. The deceased and the appellant had some altercation there. Then the deceased had thrown the pork of the appellant''s shop on the road. Thereafter, the appellant had inflicted the cut injuries on the neck of the deceased resulting ultimately in his death. 4. The PW2, the brother of the deceased, lodged the FIR, marked as Ext. 4, in the Sadiya Police Station which registered a case, being No. 1/2015, investigated into it, collected evidence, and finally, on completion of investigation laid the charge-sheet against the appellant under Section 302 of the IPC. However, the investigation of the case was initiated prior to receipt of the FIR on the basis of the GD Entry No. 678 dated 31.12.2014, marked as Ext. 8, made on the information given by the appellant himself in the police station itself. The FIR, Ext. 4, was lodged on 1.1.2015, i.e. on the next day of the date of occurrence. 5. After observing all required legal formalities, the trial commenced against the appellant for charge under Section 302 of the IPC. During the trial, the prosecution examined as many as 17 (seventeen) witnesses. The defence examined none. The defence plea is of total denial. In his statement, recorded under Section 313 of the Cr.PC also, the appellant has denied the accusation levelled against him. 6. During the trial, the prosecution examined as many as 17 (seventeen) witnesses. The defence examined none. The defence plea is of total denial. In his statement, recorded under Section 313 of the Cr.PC also, the appellant has denied the accusation levelled against him. 6. Now, let us scan the evidence on record to find out whether the prosecution has been able to bring home the charge against the appellant. 7. The PW1, is the Autopsy Doctor. He deposed that on 31.12.2014, at about 4:30 pm, he had conducted autopsy on the dead body of the deceased Numal Gogoi. He also recorded his findings, vide the post mortem report, Ext.1, as follows:- wxyz "External Appearance: zyxw wxyz An average built male dead body with rigor-mortis not appeared. zyxw wxyz Injury: zyxw wxyz One deep clean cut wound on left side of the neck size 12 cm X 3 cm X 4 1/2 cm complete cut the jugular vein and carotid artery. Other organs were found healthy." zyxw wxyz He also opined that the cause of death was due to haemorrhage and shock resulting from massive haemorrhage from cut wound and it was homicidal in nature. He also exhibited the Inquest Report vide Ext. 2 and Ext. 2(1), 2(2), 2(3) and 2(4) are his signatures therein. zyxw 8. The evidence of the PW2, the informant, is to the effect that at about 3:30 pm, on the date of occurrence, he had received information from one Mridul Gogoi that the deceased was assaulted by somebody. Only in the police station, he had come to know that it was the appellant who had committed murder of his deceased brother. The evidence of this PW2, in the absence of corroboration by the person from whom he had heard, has no evidentiary value being a piece of hearsay evidence. That apart, Mridul Gogoi who had informed the PW 2 that somebody had assaulted his brother has also not been examined by the prosecution. 9. The PW3 and PW4, Sri Moniram Gogoi and Sri Kanteswar Borgohain, had only heard about the occurrence. They have not at all implicated the appellant with the commission of the alleged offence. In the absence of any implicating evidence they were not even cross-examined by the defence. Their evidence does not appear to be of any significance for the prosecution. 10. They have not at all implicated the appellant with the commission of the alleged offence. In the absence of any implicating evidence they were not even cross-examined by the defence. Their evidence does not appear to be of any significance for the prosecution. 10. The evidence of PW5,Sri Kalia Mech is to the effect that he heard about the occurrence from some people in the locality of the place of occurrence. He also heard from those persons that the appellant had committed the murder of the deceased. In his crossexamination, he deposed that he did not make any such statement before the Investigating Police Officer. wxyz Admittedly, he had no personal knowledge about the occurrence. The person from whom he had heard about the occurrence have also not been examined by the prosecution. Therefore, his evidence is of no significance being hearsay in character zyxw 11. The PW6, Smt. Sabita Gogoi, is the wife of the deceased. Her deceased husband had informed her, over phone, just before the occurrence, that he had gone to the market for shopping. At about 4:30 pm somebody had informed her that her husband was inflicted cut injuries. She also deposed that the PW2, i.e., the elder brother of her deceased husband had lodged the FIR. wxyz From such evidence of the PW6, it clearly appears that she had no personal knowledge about the occurrence. She even could not disclose the source of her knowledge about the occurrence. Accordingly, the evidence of this PW6 is found to be hearsay in nature and similarly situated with that of the evidence of PWs 2 and 5. zyxw 12. The PW7, Upen Bharali, who was available in the Sadia Daily Bazar at the time of occurrence, deposed that he came to know that a murder had taken place in the market. On hearing the same, he went to the place of occurrence along with PW8, Sri Bubul Buragohain and found the deceased lying there. Then these PWs 7 and 8 had taken the deceased to the hospital where the doctor had declared him dead. The PW7 was declared hostile and subjected to cross-examination by the prosecution with the permission of the court. Then these PWs 7 and 8 had taken the deceased to the hospital where the doctor had declared him dead. The PW7 was declared hostile and subjected to cross-examination by the prosecution with the permission of the court. His attention was drawn to and was confronted with his previous statement made under Section 161 of the Cr.P.C. to the effect that he had stated in his said statement that at the time of occurrence, I was present at the P.O. I saw an altercation between the deceased and the accused in respect of meat. Suddenly, the accused inflicted cut injury with a machete on the neck of the deceased. I saw blood oozing from the neck of the deceased. I alongwith others tried to apprehend but could not apprehend him. Although this witness denied having made such statement to the police yet the prosecution has been able to prove his such statement through the Investigating Police officer (PW17). The Investigating Police Officer deposed that he had made such statement and the contents of such statement has also been brought in his evidence. 13. The PW8, Bubul Buragohain, deposed that while he was busy in the Sadiya Daily Bazar at about 3:40 4:00 pm, he heard that a murder had taken place in the bazar (market) and then he immediately rushed to the place of occurrence to find there a gathering of people and also the deceased Numal lying on the ground with full of blood. Thereafter, he and the PW7 had taken the deceased to the Chapakhowa FRU hospital where the doctor had declared him dead. wxyz This witness was declared hostile and was subjected to cross-examination by the prosecution as per procedure. The prosecution has drawn his attention to and also confronted him with his previous statement recorded under Section 161 of the Cr.PC to the effect that at the time of occurrence I was present at the P.O. I saw an altercation between the deceased and the accused in respect of meat. Suddenly, the accused inflicted cut injury with a machete on the neck of the deceased. I saw blood oozing from the neck of the deceased. I alongwith Upen Bharali and other took Numal Gogoi to Chapakhowa FRU where he (sic) declared dead. However, this witness has denied to have made such statement before the Investigating Police Officer (PW17). Suddenly, the accused inflicted cut injury with a machete on the neck of the deceased. I saw blood oozing from the neck of the deceased. I alongwith Upen Bharali and other took Numal Gogoi to Chapakhowa FRU where he (sic) declared dead. However, this witness has denied to have made such statement before the Investigating Police Officer (PW17). The Investigating Police Officer (PW17) deposed that the PW8 had made such statement and the contents of such statement has also been brought in his evidence. zyxw 14. The PW9, Sri Dinesh Gogoi, is a homeguard attached to Sadiya Police Station. He had seen the appellant in the lock-up of the police station. He joined his duty at the police station at about 12 noon on the day of occurrence. He is a witness to the seizure of the dao vide Ext.5. He has also exhibited the seized dao vide M.Ext. 1. This witness was also declared hostile as per procedure and was subjected to cross-examination by the prosecution. The prosecution has drawn his attention to and also confronted him with his previous statement made under Section 161 of the Cr.P.C. to the effect that he had stated that at the time of seizure I was on Santry duty at Sadiya PS. At that time police seize the M. Ext. 1 from the possession of accused and prepared seizurelist and I put my signature thereon as witness. He stated that on the evening the accused inflicted cut on the neck of the deceased at Chapakhowa Daily Bazar. Although this witness has denied to have made such statement to the police yet the prosecution has been able to prove his such statement through the Investigating Police officer (PW17). The Investigating Police Officer deposed that the PW9 had made such statement and the contents of such statement has also been brought in his evidence. 15. The PW10, Ganesh Ghatowar, is a Policeman and was on duty on 31.12.2014 at the Sadiya Police Station. On that day, he saw the appellant there in the police station with a machete dao in his hand. Sri Tiluram Verma, the Officer-in-Charge of the police station, directed him to put the appellant in the police lock-up which he did. He is also a witness to the seizure made vide Ext.5 wherein Ext. 5(2) is his signature as witness. On that day, he saw the appellant there in the police station with a machete dao in his hand. Sri Tiluram Verma, the Officer-in-Charge of the police station, directed him to put the appellant in the police lock-up which he did. He is also a witness to the seizure made vide Ext.5 wherein Ext. 5(2) is his signature as witness. wxyz In his cross-examination, the PW10 has stated that the appellant had come to the police station with a dao to report that some people gathered in the market attempted to apprehend him. The fact comes out from the evidence of PW10 is that the appellant had appeared in the police station with a dao in his hand for his own protection as some people gathered in the market had attempted to apprehend him. The Officer In-charge of the Police Station Sri Tiluram Verma had put him in the lock up. In his cross-examination, this witness stated that he had put the appellant in the lock up on being instructed by the said Officer In-charge. However, in his cross-examination he also stated that the Officer In-charge was outside without specifically mentioning the time when he was outside the Police Station. zyxw wxyz But, it appears to be an admitted position from his such evidence that either he had put the appellant in the lock up under the instruction of the Officer In-charge or the Officer In-charge had himself put the appellant in the lock up leaving us with no doubt that the Officer In-charge was present in the Police Station at the time appellant had appeared there. zyxw 16. The PW11, Sri Amulya Gogoi, has deposed that he heard from the people gathered at Chapakhowa Hospital that one person had sustained cut injuries. He also came to know that the said person had succumbed to his injuries. This witness was declared hostile by the prosecution with the permission of the court and was subjected to cross-examination. The prosecution has brought to his attention that he had stated in his previous statement made to the Investigating Police Officer that yesterday I alongwith the deceased went to Chapakhowa market to purchase pork. Both of we(sic) about to purchase meat, at that time the deceased called me to purchase meat in an another shop. The prosecution has brought to his attention that he had stated in his previous statement made to the Investigating Police Officer that yesterday I alongwith the deceased went to Chapakhowa market to purchase pork. Both of we(sic) about to purchase meat, at that time the deceased called me to purchase meat in an another shop. At that time, a quarrel took place in between Numal and the accused and suddenly the accused inflicted cut injury on the neck of the deceased with the dao used to cut the meat. After committing the offence, he fled away. We took Numal to the Chapakhowa FRU and doctor declared him dead. Although this witness has denied having made such statement to the police yet the prosecution has been able to prove his such statement through the Investigating Police officer (PW17). The Investigating Police Officer deposed that he had made such statement and the contents of such statement has also been brought in his evidence. 17. The PW12, Sri Bhupen Deori, came to know about the occurrence later on. In his crossexamination, he has categorically expressed his ignorance about the occurrence as he was not present at the time of the incident. Therefore, the PW12 has not implicated the appellant with the commission of the offence. 18. The PW13, Sri Sayanjid Buragohain, has deposed that he knew the appellant as well as the deceased. According to him, the incident had taken place at about 4:00 4:30pm on a day in the month of December, 2014. At that time, he was at the market and was selling meat. Then he saw the deceased had fallen down on the ground and thereafter he was taken to the hospital where he had succumbed to his injuries. This witness was also declared hostile by the prosecution with the permission of the court and his attention was drawn to his previous statement made before the Investigating Police Officer under Section 161 of the Cr.P.C. to the effect that deceased Numal sustained cut injuries on his neck and thereafter he fell down on the ground and also saw the accused fled away from the place of occurrence with a dao in his hand and later I came to know that the accused caused cut injuries to the deceased on his neck. In his cross-examination, he deposed that it was dark at the time of occurrence and a large number of people gathered in the market and that three persons were selling meat in the market. He was busy with his customers and so he did not see how the deceased had sustained injuries. wxyz The prosecution, however, did not examine the investigating police officer (PW17) as to the statement made before him by this witness under Section 161 of the Cr.P.C and as such failed to prove his previous statement to the effect indicated above in the manner provided in Section 145 of the Indian Evidence Act. Therefore, his evidence is of no avail to the prosecution. zyxw 19. The PW14, Ajoy Buragohain, deposed that the incident had taken place on 31.12.2014 at about 4:00pm. At that time, he was present in his electrical shop located nearby the place of occurrence. At the relevant time of occurrence he had come out of his shop after hearing hue and cry and found the deceased lying on the ground. Thereafter, the deceased was taken to the hospital where he had succumbed to his injuries. This witness was also declared hostile by the prosecution with the permission of the court and was subjected to cross-examination. His attention was drawn by the prosecution to his previous statement to the effect that in his statement under Section 161 of the Cr.PC recorded by the Investigating Police Officer, he had stated that on the day of incident I saw the accused running in front of my shop and when I came out from my shop. I saw the deceased lying near the meats of the accused with cut injuries on his neck. Later I came to know that the accused caused injuries to the deceased with a dao. Later the deceased was taken to Chapakhowa FRU. Although this witness denied having made such statement to the police yet the prosecution has been able to prove his such statement through the Investigating Police officer (PW17). The Investigating Police Officer deposed that he had made such statement and the contents of such statement has also been brought in his evidence. 20. The PW15, Smti. Nirmala Mech, is the wife of the appellant. In her examination-in-chief, she has expressed her total ignorance about the incident and even stated that the police did not record her statement. The Investigating Police Officer deposed that he had made such statement and the contents of such statement has also been brought in his evidence. 20. The PW15, Smti. Nirmala Mech, is the wife of the appellant. In her examination-in-chief, she has expressed her total ignorance about the incident and even stated that the police did not record her statement. This witness was declared hostile by the prosecution with the permission of the court and subjected her to cross-examination. Her attention was drawn to and she was confronted with her previous statement recorded under Section 161 of the Cr.P.C. wherein she had stated that the accused Gakul Mech is my husband. On 31.12.2014, in the evening at about 4:00 PM, I was in the shop of my husband and at that time, the deceased tried to quarrel with my husband and the deceased also threw meat of our shop on the road. When I asked him as to why he had thrown the meat on the road, then he scolded me with filthy languages. Thereafter the deceased tried to attack my husband and then my husband inflicted dao blows on his neck. Thereafter my husband proceeded to the police station with a dao in his hand. Then, the deceased was taken by his colleagues to Chapakhowa FRU. However, this witness denied having made such statement to the police yet the prosecution has been able to prove his such statement through the Investigating Police officer (PW17). The Investigating Police Officer has confirmed in his evidence that the PW15 had made such statement and the contents of such statement has also been brought in his evidence. 21. The PW16, Smti. Manju Chetry , in her examination-in-chief stated she did not know anything about the occurrence and police did not record her statement. The prosecution declared this witness hostile with the permission of the court and subjected her to cross-examination. Her attention was drawn to and she was confronted with her previous statement recorded under Section 161 Cr.PC wherein she had stated that the accused inflicted cut injuries on the neck of the deceased, at that time, I was present in our hotel. Thereafter, I came to know that the accused fled away after committing the offence. Her attention was drawn to and she was confronted with her previous statement recorded under Section 161 Cr.PC wherein she had stated that the accused inflicted cut injuries on the neck of the deceased, at that time, I was present in our hotel. Thereafter, I came to know that the accused fled away after committing the offence. Although this witness denied having made such statement to the police yet the prosecution has been able to prove her such statement through the Investigating Police officer (PW17). The Investigating Police Officer deposed that she had made such statement and the contents of such statement has also been brought in his evidence. wxyz Evidently, the PW16 is not the eye witness to the occurrence and she came to know subsequently that the appellant had fled away after commission of the offence. Therefore, even if the PW16 made the statement attributed to her yet such statement, in the absence of corroboration from her source of knowledge remain hearsay having no evidentiary value. zyxw 22. Pw17 is the Investigating Police Officer. In his evidence he has narrated about various stages of the investigation of the case including receipt of the FIR, making of the GD Entry, examination of the witnesses, inquest as well as post mortem examination of the dead body of the deceased etc. till laying of the chargesheet. It has also come out from his evidence, as indicated during the discussions of the evidence of PWs 7, 8, 9, 11, 14 and 15 (who were declared hostile witnesses) that they had made statements before him implicating the appellant with the commission of the offence. He also deposed that he had recorded the GD Entry vide Ext. 8 as per the statement of the appellant himself. wxyz The learned Addl. P.P. has submitted that the prosecution has been able to prove the previous statements of the PWs 7, 8, 9, 11, 14 and 15 made under Section 161 of Cr.P.C. implicating the appellant. As per their proved previous statements they are the eye witnesses to the occurrence. But, learned counsel for the appellant has canvased before us that there was no eye witness to the occurrence. zyxw 23. The statements of the PW7, 8, 9, 10, 11, 14 and 15 although reduced into writing yet in their depositions in the court they did not support the prosecution case for which they were declared hostile. But, learned counsel for the appellant has canvased before us that there was no eye witness to the occurrence. zyxw 23. The statements of the PW7, 8, 9, 10, 11, 14 and 15 although reduced into writing yet in their depositions in the court they did not support the prosecution case for which they were declared hostile. We have indicated in the earlier discussions that the prosecution has proved their previous statements through the Investigating Police officer (PW17). Let us now see the law relating to the proof of previous statement. Section 145 of the Evidence Act provides that a witness may be cross-examined as to the previous statements made by him in writing or reduced into writing. Section 145 of the Evidence Act is quoted herein below for ready reference:- wxyz "145. Cross-examination as to previous statements in writing.- A witness may be crossexamined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him." zyxw 24. While interpreting Section 145 of the Evidence Act, the Supreme Court had made the following observations in the case of V. K. Mishra and Anr. vs- State of Uttarakhand and Anr, (2015) 9 SCC 588 : wxyz "19. Under Section 145 of the Evidence Act when it is intended to contradict the witness by his previous statement reduced into writing, the attention of such witness must be called to those parts of it which are to be used for the purpose of contradicting him, before the writing can be used. While recording the deposition of a witness, it becomes the duty of the trial court to ensure that the part of the police statement with which it is intended to contradict the witness is brought to the notice of the witness in his cross-examination. The attention of witness is drawn to that part and this must reflect in his cross-examination by reproducing it. If the witness admits the part intended to contradict him, it stands proved and there is no need to further proof of contradiction and it will be read while appreciating the evidence. The attention of witness is drawn to that part and this must reflect in his cross-examination by reproducing it. If the witness admits the part intended to contradict him, it stands proved and there is no need to further proof of contradiction and it will be read while appreciating the evidence. If he denies having made that part of the statement, his attention must be drawn to that statement and must be mentioned in the deposition. By this process the contradiction is merely brought on record, but it is yet to be proved. Thereafter when investigating officer is examined in the court, his attention should be drawn to the passage marked for the purpose of contradiction; it will then be proved in the deposition of the investigating officer who again by referring to the police statement will depose about the witness having made that statement. The process again involves referring to the police statement and culling out that part with which the maker of the statement was intended to be contradicted. If the witness was not confronted with that part of the statement with which the defence wanted to contradict him, then the court cannot suo moto make use of statements to police not proved in compliance with Section 145 of Evidence Act that is, by drawing attention to the parts intended for contradiction." zyxw 25. In the present case, as noted above, the attention of the hostile witnesses, i.e., PWs 7, 8, 9, 11, 14 and 15, was drawn to and were confronted with the parts of their previous statements, proposed to be contradicted, by reproducing the same. In this manner the prosecution has brought their such statements on record. 26. Although on perusal of the statements by the aforesaid hostile witnesses made before the Investigating Police Officer and the statements they were confronted with by the prosecution for contradicting them and proved through the Investigating Police Officer (PW17), yet they are not found to be same word by word. In such a situation, the settle legal propositions are: wxyz 1. A statement in writing made by witness before a police officer in the course of investigation can be used only to contradict his statement in the witness box and for no other purpose. zyxw wxyz 2. Statements not reduced to writing by the Police Officer cannot be used for contradictions. zyxw wxyz 3. A statement in writing made by witness before a police officer in the course of investigation can be used only to contradict his statement in the witness box and for no other purpose. zyxw wxyz 2. Statements not reduced to writing by the Police Officer cannot be used for contradictions. zyxw wxyz 3. Though a particular statement is not recorded, a statement that can be deemed to be part of that expressly recorded can be used for contradictions not because it is an omission strictly so called but because it is deemed to form part of the recorded statement. Such a fiction is permissible be construction only in the following three cases; - (i) when a recitals found in the statement, (ii) a negative aspect of a positive recital of recitals in a statement and (iii) when the statement before the police and before the court cannot stand together. [ Ref: Tahsildar Singh v State of U.P., (1959) AIR SC 1012] zyxw wxyz It is for the trial judge to decide in each case, after comparing the part or parts of the statement recorded by the police with that made in the witness box, to give a ruling having regard to the aforesaid principles whether the recital intended to be used for contradiction satisfies the requirements of law. zyxw wxyz Applying this legal proposition referred to in 3(i) above, we find that the parts of the previous statements of the said witnesses with which they were confronted for contradicting them were made by them in their respective statements sporadically and as such their previous statements implicating the appellant proved through the PW17 are parts of their expressly recorded statements. zyxw wxyz In view of the above discussions, we have no hesitation to hold that PWs 7,8,9,11,14 and 15 are all eye-witnesses to the occurrence and their proved previous statements make it clear that it was none but the appellant who had committed the crime. We have also noticed that the evidence of the PW17 (Investigating Officer) in respect of the statements made before him by the PWs. 7, 8, 9, 11, 14 and 15 remains unassailed. zyxw 27. The learned counsel for the appellant has further submitted that the Officer-In-Charge was not present at the police station at the relevant time of appearance of the appellant there with a dao in his hand. 7, 8, 9, 11, 14 and 15 remains unassailed. zyxw 27. The learned counsel for the appellant has further submitted that the Officer-In-Charge was not present at the police station at the relevant time of appearance of the appellant there with a dao in his hand. The PW17 deposed that he had seized the dao from the possession of the appellant in the police station as per direction of the Officer-In-Charge and such fact has also been recorded in the GD Entry Ext.8. To establish that such evidence of PW17 is a lie, the learned counsel for the appellant has referred to the evidence of PW10, in his cross-examination, to the effect that the Officer In-Charge was outside the police station. But, while analysing the evidence of PW10 in Para 15 of this judgement we have already believed and held that the Officer In-Charge was present in the police station at the relevant point of time of the appearance of the appellant there. 28. The learned counsel for the appellant has further submitted that the appellant did not surrender in the police station as recorded in the GD Entry and also did not confess that he had inflicted cut injuries upon the deceased. So far the extra-judicial confession of the appellant, we have dealt with the same in paragraph 31 of this judgment. As argued by the learned defence counsel, there is no instance in the record to suggest, even remotely, that the appellant had come to the police station to report the fact that some people gathered in the market had attempted to attack/apprehend him. The evidence of the Investigating Police Officer that immediately after making the GD Entry, he went to the place of occurrence is indicative of the fact that the information of inflicting injuries upon the deceased was received by him first from the appellant himself as recorded in the GD Entry. The statement of the PW11, proved by the Investigating Police Officer (PW17), that after committing the offence, the appellant had fled away has, in fact, established the fact that immediately after the occurrence, he had left for the police station. The evidence of PW7 shows that he and others tried to apprehend the appellant after the occurrence. The statement of the PW11, proved by the Investigating Police Officer (PW17), that after committing the offence, the appellant had fled away has, in fact, established the fact that immediately after the occurrence, he had left for the police station. The evidence of PW7 shows that he and others tried to apprehend the appellant after the occurrence. As per the materials on record, the occurrence had taken place at about 3:40 4:00pm and the appellant had appeared in the police station, as per the GD Entry, at 4:05 pm. This fact is further reinforced by the proved evidence of the wife of the appellant, i.e., PW15 that immediately after inflicting the cut injury upon the deceased the appellant had left for the police station with a dao in his hand. Such evidence, in our view, shows that the appellant had surrendered in the police station. However, the evidence of the PWs 7, 8, 9, 11, 14 and 15, as discussed above, has convinced this court that it was none but the appellant who had inflicted the fatal injuries resulting in the death of the deceased. 29. The evidence of the PW17 is to the effect that seizure of the dao from the possession of the appellant was made in the police station vide Ext. 5. The PWs 9 and 10 are the witnesses to the seizure. However, the PW9 deposed, in his cross-examination, that he did not witness as to from whom the M.Ext 1 dao was seized. Referring to such evidence of the PW9, it is argued by the defence that the PW9 has not supported the said seizure. But, on perusal of his evidence, it is found that the PW9 has exhibited and admitted the Ext.5 and Ext.5(1) to be his signature therein as witness. The attention of PW9 was also drawn to his previous statement admitting the fact that seizure was made in the police station in his presence. Although the PW9 denied having made such statements yet such contradiction has been proved by the prosecution through the PW7 as found during the discussion of his evidence. On the other hand, the PW10 has also admitted that he was a witness to the seizure made vide Ext.5 wherein Ext.5(2) is admitted to be his signature. The Hon''ble Supreme Court held in para 31 in Life Insurance Corporation of India & Anr. On the other hand, the PW10 has also admitted that he was a witness to the seizure made vide Ext.5 wherein Ext.5(2) is admitted to be his signature. The Hon''ble Supreme Court held in para 31 in Life Insurance Corporation of India & Anr. vs- Ram Pal Singh Bisen, (2010) 4 SCC 491 as follows:- wxyz "31. Under the law of evidence also, it is necessary that contents of documents are required to be proved either by primary or by secondary evidence. At the most, admission of documents may amount to admission of contents but not its truth. Documents having not been produced and marked as required under the Evidence Act cannot be relied upon by the court. Contents of the document cannot be proved by merely filing in a court." zyxw wxyz In view of the ratio laid down by The Hon''ble Supreme Court in Life Insurance Corporation of India & Anr. (supra) admitting the document, marked Ext.5, and the signature therein as Ext. 5(1) by PW9 also amounts to admission of the contents of Ext. 5, the seizure list. The contents of Ext. 5 shows that the seized dao was stained with blood. Therefore, the argument of the learned counsel for the appellant, on this count fails. The prosecution has been able to prove the seizure of the blood stained dao from the possession of the appellant in the police station. zyxw 30. The evidence of PW11 that immediately after the occurrence the appellant had fled away and the evidence of PW7 that he along with others had tried to apprehend the appellant read in combination with the evidence of PW15 that immediately after the occurrence the appellant had left for the police station is more than clear to establish that the appellant had surrendered in the police station immediately after the occurrence for the fear of being apprehended by the public gathered there which speaks volumes about the post occurrence conduct of the appellant. 31. 31. So far the alleged extra-judicial confession made by the appellant to police persons in the police station itself, while under their dominion/custody, to the effect that he had inflicted cut injuries upon the deceased and relied upon by the learned trial court, as reflected in Para 67 of the impugned judgement, this court is of the view that such admission/confession being made before the police while the appellant was in police station is not admissible and cannot be acted upon. 32. In view of the proved eye-witness account of the hostile witnesses, i.e., PWs 7, 8, 9, 11, 13, 14 and 15 and the post occurrence circumstances leading to appearance of the appellant in the police station with a dao in his hand for the fear of being apprehended by the public gathered at the place of occurrence leaves us with no doubt that it was none but the appellant who had committed the crime. 33. Now, the question is as to whether the death of the deceased amounts to culpable homicide amounting to murder or culpable homicide not amounting to murder. To understand the legal position of the matter, we have visited the Exceptions to Section 300 of the IPC and the exception 4 being applicable in the facts of the instant case is reproduced below : wxyz 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''s having taken undue advantage or acted in a cruel or unusual manner. zyxw 34. Although it is not the case of the appellant that under grave and sudden provocation and without pre-meditation, the appellant had committed the crime, yet from the evidence of the witnesses, particularly the evidence of PW15, makes it clearly evident that the deceased had initiated the altercation/quarrel with the appellant and had thrown the meat of the shop of the appellant on the road provoking the appellant to react in the manner he did. There is no evidence of premeditation on the part of the appellant to cause death of the deceased. It transpires from the evidence, read as a whole, that the appellant had inflicted the fatal injury upon the deceased without pre-meditation in a sudden fight in the heat of passion. There is no evidence of premeditation on the part of the appellant to cause death of the deceased. It transpires from the evidence, read as a whole, that the appellant had inflicted the fatal injury upon the deceased without pre-meditation in a sudden fight in the heat of passion. Thus, the offence committed by the appellant falls under the purview of Exception 4 to Section 300 of the IPC. The learned Additional Public Prosecutor, Ms. Bhuyan has fairly agreed that the appellant had inflicted the fatal injury causing death of the deceased in the heat of passion in a sudden fight due to the provocation which, according to her, falls within under the Exception 4 of Section 300 of the IPC. 35. Accordingly, the conviction of the accused is converted from the offence punishable under Section 302 of the IPC to one under Section 304 Part-II of the IPC. Accordingly, considering the entire facts of the case, this court is of the view that punishment in the form of rigorous imprisonment for 10 (ten) years and fine of Rs. 10,000/-, and in default of payment of fine, simple imprisonment for 6 (six) months for commission of offence punishable under Section 304 Part-II of the IPC would meet the ends of justice. The accused- appellant is sentenced accordingly. The order of the learned trial court in respect of compensation to the next of kin of the deceased remain undisturbed. 36. The period of custody of the accused-appellant at the investigation stage, during trial and after the judgment of the learned court below shall be set off against the substantive sentence imposed upon the accused-appellant. 37. The appeal is, accordingly, partly allowed. The period of detention of the appellant in custody be set off under Section 428 of the Cr.P.C. against the substantive sentence. 38. Send down the LCR with a copy of this judgment.