JUDGMENT : MIR ALFAZ ALI, J. 1. Heard Mr. U Choudhury, learned Amicus Curiae and Mr. MP Goswami, learned Additional Public Prosecutor, Assam. 2. This appeal is directed against the judgment and order passed by learned Sessions Judge, Sivsagar in Sessions Case No. 178/2011. By the said judgment, the learned sessions judge convicted the appellant under 304 Pt-II of IPC and sentenced him to imprisonment for ten years and fine of Rs. 20,000/-, in default, rigorous imprisonment for six months. 3. As per prosecution case, on 06.04.2010 when the informant Rakhi Gowalla and the victim were going to the house of their sister Dipali Gowalla to attend a marriage ceremony, the accused appellant Dambaru Baishya obstructed the victim on the way and hit him with an axe on his head and thereby caused serious injuries. Immediately the victim was shifted to civil hospital, Sivasager for treatment and the FIR (Exhibit-6) was lodged by PW-2, Rakhi Gowalla. 4. On the basis of the said FIR, police registered Amguri PS Case No. 81/2020 under Section 341/326 IPC. During investigation the victim died and therefore the penal provision of Section 302 IPC was added on the prayer of the Investigating Officer. In course of investigation, police recorded the statement of the witnesses prepared inquest report and send the body for postmortem examination. Doctor, Hemanta Kr. Mahanta (PW-7) conducted the post-mortem examination. 5. The autopsy, doctor found one stitched wound 10 cms long vertically placed on left temporal and parietal area, 2 cm above the left ear. One cut fracture 6 cm long on left temporal and parietal bone underneath the Injury No. 1. In the opinion of the doctor, death was due to coma resulting from head injury which was anti mortem in nature and caused by heavy sharp cutting weapon and was homicidal in nature. 6. During the investigation, the confessional statement of the accused was also recorded by PW-6, Judicial Magistrate, Mr. Parvez Ahsan Choudhury. PW-6 testified that the accused was duly cautioned by putting necessary questions as per Section 164 Cr.P.C. and having satisfied that the appellant was ready and willing to make confession voluntarily, he was sent to judicial custody for reflecting for two days. After such reflection the learned Judicial Magistrate recorded the confession, following all the necessary legal formalities. 7. PW-6 testified that the accused was duly cautioned by putting necessary questions as per Section 164 Cr.P.C. and having satisfied that the appellant was ready and willing to make confession voluntarily, he was sent to judicial custody for reflecting for two days. After such reflection the learned Judicial Magistrate recorded the confession, following all the necessary legal formalities. 7. In the confessional statement, the appellant stated that there was animosity between the parties and he lodged a case against Rupeswar Gowalla, Bablu Gowalla and Doyamoy Gowalla in order to take revenge. On 06.04.2010 at about 9.30 am Monchuka Gowalla, Sikha Gowalla and Rupeswar Gowalla trespassed into the house in order to assault him. Gokul Gowalla was also with them. They have trespassed into his house by cutting CI sheet. He dealt a blow with an axe and one of them sustained injury, who was immediately shifted to hospital. Later on, he came to know, that the person who sustained injury due to the blow given by the axe was the victim Prafulla Gowalla. On the next morning, he surrendered before the police at Amguri Police Station. 8. On conclusion of investigation, police submitted charge-sheet against the appellant under Section 302 IPC and eventually he stood on trial. 9. In course of trial, the learned Sessions Judge framed charge against the appellant under Section 302/341 IPC to which he pleaded not guilty. In course of trial, prosecution examined 13 witnesses in order to bring home the charges. After completion of the prosecution evidence, the accused appellant was examined under Section 313 Cr.P.C. During examination under Section 313 Cr.P.C. the appellant admitted his guilt by stating that he had committed the offence. 10. Out of 13 witnesses examined by the prosecution, PW-2 was the Investigation Officer, PW-7 was the doctor and PW-6 was the Judicial Magistrate, who recorded the statement. All other oral witnesses were post occurrence witnesses and none of them has personal knowledge about the occurrence except PW-2, who was the only eye witness of the case. 11. PW-2, the informant stated in his evidence, that while she along with the victim was going to the house of her sister to attend the marriage, at the entrance gate of his sister, the appellant hit the deceased with an axe on his head and consequently he sustained injury and after one week he died in the hospital. 11. PW-2, the informant stated in his evidence, that while she along with the victim was going to the house of her sister to attend the marriage, at the entrance gate of his sister, the appellant hit the deceased with an axe on his head and consequently he sustained injury and after one week he died in the hospital. The evidence of this witness remained totally unshaken. 12. On the basis of the above evidence of the PW-2 and the statement of the appellant recorded under Section 313 Cr.P.C. as well as the confessional statement, learned Sessions judge convicted the appellant under Section 304 Pt-II and awarded sentence as indicated above. 13. Learned Amicus Curiae has not contested the conviction of the appellant recorded by the learned trial court under Section 304 Part-II IPC. However, contention of the learned Amicus Curiae is that having regard to the facts that only a single blow was given and the victim died after one week in course of treatment, sentence for a period of 10 years was on the higher side and not proportionate to the gravity of the offence and as such argued for reducing the quantum of sentence. Learned Public Prosecutor supporting the conviction and sentence of the appellant contends that although a single blow was given, having regard to the nature of the weapon being the axe and the nature of injury it cannot be said that the accused did not have the intention to cause such bodily injury as is likely to cause death. Although, the intention to cause death might not be attributed to the appellant. 14. Apparently, the accused inflicted the injury with an axe, which is a heavy sharp cutting weapon. The doctor also affirmed in his evidence, that the injury was caused by Material Exhibit-1, the axe, which was shown to him. Evidently, the injury was inflicted on the vital part of the body. 14. Apparently, the accused inflicted the injury with an axe, which is a heavy sharp cutting weapon. The doctor also affirmed in his evidence, that the injury was caused by Material Exhibit-1, the axe, which was shown to him. Evidently, the injury was inflicted on the vital part of the body. Therefore, I find substance in the contention of the learned Public Prosecutor that though the intention to cause death might not be there as the materials on record suggested that there was provocation, as rightly observed by the learned trial court, but in view of the weapon used and the nature of injury as well as the parts of the body selected to inflict the injury it would be difficult to say that the accused did not have the knowledge that injury as is likely to cause death. Therefore, having regard to the totality of the evidence and the facts and circumstances under which the occurrence took place, I find no reason to differ with the conclusion arrived at by the learned Sessions Judge to record conviction and award sentence to the accused as indicated above and as such this appeal appears to have no merit. 15. Accordingly, the appeal stands dismissed. 16. This Court appreciates the assistance rendered by the learned Amicus Curiae and an amount of Rs. 7500/- is granted to him as remuneration, which shall be paid by the Gauhati High Court Legal Service Committee. 17. A copy of this judgment and order be sent to the Superintendent of District Jail, Sivasagar. 18. Send back the LCR with a copy of this judgment and order.