JUDGEMENT : Suman Shyam, J 1. Heard Mr. N. Mahajan, learned counsel appearing for the appellant. We have also heard Ms. B. Bhuyan, learned APP, Assam, appearing for the State/respondent No.1. None has appeared for the informant/respondent no.2. 2. By the judgment and order dated 19/08/2017 passed by the learned Sessions Judge, Nagaon in Sessions (T-1) Case No. 296(N)/2013, the sole appellant in this case was convicted under section 302 of the IPC for committing the murder of deceased Mousum Phukan and sentenced to undergo rigorous imprisonment for life and also to pay fine of Rs. 10,000/-with default stipulation. 3. The prosecution case, in a nutshell, is that on 31/12/2012, at around 10-30 p.m. while the deceased Mousum Phukan, along with his two associates, viz. Pran Pratim Bhairagi and Jayanta Bora, were going to Nalbora village in a motor bike, accused Nabajyoti Rangdai @ Guddu had inflicted stab injury on Mousum Phukan with a sharp weapon, on his left arm, resulting into profuse bleeding. The injured victim was admitted at the Nagaon B.P. Civil Hospital but later on, he had succumbed to his injuries. 4. On 01/01/2013, Sri Diganta Phukan i.e. the Uncle of the deceased, had lodged an ejahar before the Puronigodam Police Out Post reporting the incident. Based on the FIR dated 01/01/2013, the incharge of Purnigodam Out Post had made GD entry No. 509 and thereafter, forwarded the FIR to the Samaguri Police Station for registering a case. Accordingly, Samaguri P.S. case No. 01/2013 was registered under Section 341/302 of the IPC and the matter was then taken up for investigation by the Police. Upon completion of the investigation, the I.O. had laid charge sheet against the accused/appellant under Section 341/302 of the IPC. The charge was read over and explained to the accused but since he had pleaded not guilty and claimed to be tried, the matter went up for trial. 5. During the course of trial, the prosecution side had examined as many as 16 witnesses which included two eye witnesses i.e. PWs 4 and 6. The accused had denied his involvement while recording his statement under section 313 Cr.P.C. However, the defence side did not adduce any evidence. 6. 5. During the course of trial, the prosecution side had examined as many as 16 witnesses which included two eye witnesses i.e. PWs 4 and 6. The accused had denied his involvement while recording his statement under section 313 Cr.P.C. However, the defence side did not adduce any evidence. 6. Upon appreciation of the evidence brought on record, the learned Sessions Judge, Nagaon had found the accused/appellant guilty of committing murder of the deceased Mousum Phukan and accordingly, convicted him and awarded the sentence, as mentioned above. 7. As noted above, the witnesses i.e. PWs 4 and 6 are the eye witnesses in this case and the conviction of the appellant is primarily based on their testimony. Therefore, let us first examine the evidence adduced by these two witnesses. 8. PW-4 Sri Pran Pratim Bairagi has deposed before the Court that the deceased Mousum Phukan was his classmate and he died on 31/1/2012. On the date of occurrence, at around 8-30 p.m., he along with the deceased and one Sri Jayanta Bora (PW-6) were sitting on a bench in front of a shop at Nalbora village wherefrom the accused person hails. At around 9-15 p.m., the accused came there, called him and started talking about his motorcycle ride. Around that time, the deceased Mousum Phukan had also called PW-4 and requested him to accompany him to Keyanpatty. Accused Guddu was annoyed by the interruption caused by the deceased Mousum Phukan and rebuked him by using some slang language involving the mother of the deceased. Deceased Mousum had also argued with the accused but Guddu had repeated the same slang referring to the mother of the victim. In course of such argument, the deceased came forward and gave two slaps to Guddu. At that stage, accused Guddu had left the place by saying that he would come back. After that, PW-4 along with the deceased and his other friend PW-6 had left for Keyanpatty on a motorcycle and after some time, they came back and stopped in front of the same shop so as to drop Jayanta Bora (PW-6). At that time the incident took place. This witness has stated that they were all riding in the same motorcycle and it was the deceased who was driving the bike while Jayanta Bora (PW-6) was seated next to him. At that time the incident took place. This witness has stated that they were all riding in the same motorcycle and it was the deceased who was driving the bike while Jayanta Bora (PW-6) was seated next to him. Suddenly, from out of nowhere, the accused Guddu came out with a ‘dagger’ in his hand and stabbed the deceased from the left side and immediately thereafter left the scene. PW-4 has also stated that he shouted for help and within 10-15 minutes, some neighbours gathered at the place of occurrence. In the meantime, he had called the 108 Ambulance. After some time, the Ambulance had arrived at the scene. Whereafter, the PW-4, accompanied by Nabajit Phukan and some others, took the injured to the B.P. Civil Hospital, Nagaon and later on, the victim had succumbed to his injuries at around 1 a.m. This witness has further stated that on the following day, the Police took away the dead body from B.P. Civil Hospital, Nagaon and had also seized the motorcycle of the deceased vide Ext. 2. Ext. 2(1) was his signature. 9. PW-6 Sri Jayanta Bora is the other eye witness. He was one of the three persons who were riding on the motorcycle driven by the deceased Mousum Phukan and had seen the occurrence. PW-6 had also deposed in similar lines as the PW-4, by stating that the incident took place on 31/12/2012. On that day, he along with the deceased Mousum Phukan and Sri Pran Pratim Bairagi (PW-4) were sitting together in front of the shop of Sri Dilip Gogoi and chatting. At around 9-30 p.m. accused came near the shop of Sri Dilip Gogoi and called the PW-4 near him. Accordingly, the PW-4 went forward and was talking with the accused. At that time, they were planning to go to Keyanpatty and hence, the deceased Mousum Phukan had called the PW-4. Then the accused had asked who are you? – the deceased told him that his name was Mousum. Than the accused started hurling abusive language on the deceased Mousum. Mousum went forward and gave two slaps to the accused. PW-6 has stated that they intervened in the matter and then the accused had asked them to wait saying that he would be coming back and then he left the scene. Than the accused started hurling abusive language on the deceased Mousum. Mousum went forward and gave two slaps to the accused. PW-6 has stated that they intervened in the matter and then the accused had asked them to wait saying that he would be coming back and then he left the scene. Then they proceeded to Keyanpatty and stayed there up to 11/11-30 p.m. Later on, deceased Mousum had come to Nalbora to drop him and the motorcycle was driven by the deceased. PW-6 has also stated that he was sitting in the middle and PW-4 was sitting after him in the bike. As soon as they reached the shop of Sri Dilip Gogoi and were about to get down from the bike, the accused came from the side of a bamboo deck and stabbed Mousum Phukan with a sharp weapon on his left side. The blow of the sharp weapon reached the arm and chest of the deceased. At that time, the deceased had shouted by saying that “Guddu, you have killed me.” After that the accused fled away. This witness has also stated that after the assault, the motorcycle fell down and he had held Mousum and had seen blood oozing out from the deceased. Having seen the blood, he was feeling dizzy. At that time, PW-4 raised an alarm and people from nearby area had gathered. Later on, the victim was shifted to the B.P. Civil Hospital, Nagaon in an Ambulance. The injured had succumbed to his injuries around 12-45 a.m. (midnight). 10. During their cross examination, the evidence adduced by the PWs 4 and 6 could not be shakened. On the contrary, PWs 4 and 6 had remained firm in their testimonies and stated that they had witnessed accused Guddu inflict stab injury on the left arm of the deceased Mousum Phukan and had also narrated the circumstances under which, and the time and place in which, the incident took place. The versions of PWs 4 and 6 find due corroboration from the testimony of one another and therefore, leaves no room for doubt that they had seen the occurrence and were truthful in their deposition. 11. PW-1 Sri Konok Chandra Bora was the Secretary of the V.D.P. of that village at the time of the incident and he has deposed before the Court that the incident took place on 31/12/2012 at about 11 p.m. 12. 11. PW-1 Sri Konok Chandra Bora was the Secretary of the V.D.P. of that village at the time of the incident and he has deposed before the Court that the incident took place on 31/12/2012 at about 11 p.m. 12. PW-2 Sri Diganta Phukan is the informant in this case. He is also the Uncle of the deceased. PW-2 had deposed that he had lodged the ejahar reporting the incident. Ext. 1 was the ejahar and Ext. 1(1) was his signature. The PW-2 did not see the incident but later on, lodged the ejahar on the basis of information received by him. 13. PW-3 Sri Labajit Phukan, PW-5 Sri Bhaskar Bora, PW-7 Sri Hirumoni Gayan, PW-8 Ms. Sangita Phukan, PW-9 Sri Prabhat Phukan, PW-10 Sri Dilip Gogoi and PW-14 Sri Moinal Bairagi are all residents of the same village. They had not seen the occurrence but had learnt about the same from other persons. All these witnesses had adduced evidence before the Court supporting the prosecution case and stated that the incident took place on 31/12/2012 late in the evening whereby, the victim Mousum Phukan was stabbed. 14. PW-11 Sri Dipak Phukan is the father of the victim. He has deposed that on the date of the occurrence he was posted at Katiasarai in the district of Hailakandi. He received information over phone that his son Mousum Phukan was stabbed by the accused. Immediately, he asked that his son be taken to the hospital. Later on, at 1 a.m. his son had died due to the injury received by him. 15. PW-12 UBC Dharanidhar Gayan had accompanied S.I, in-charge of Puranigodam Police Out post as well as the Investigating Officer (IO) in this case, to recover the ‘dagger’ used in committing the offence. PW-12 has stated that it was the accused who had shown the ‘dagger’ in the place of occurrence which was seized by the I.O. Ext. 7 and Ext. 7(1) is his signature. 16. PW-13 Sri Sankar Chandra Rabha was serving as Junior Scientific Officer in the Directorate of Forensic Science, Kahilipara, Assam. PW-13 has stated that on 01/12/2013 he had received a sealed parcel through his Director, in connection with Samaguri P.S. case No. 01/2013. The parcel contained one plastic handled knife with stains of suspected blood. According to this witness, the blood sample tested positive of human blood of Group-B. 17. PW-15 Dr. PW-13 has stated that on 01/12/2013 he had received a sealed parcel through his Director, in connection with Samaguri P.S. case No. 01/2013. The parcel contained one plastic handled knife with stains of suspected blood. According to this witness, the blood sample tested positive of human blood of Group-B. 17. PW-15 Dr. Mafikul Islam was the doctor on duty at the B.P. Civil Hospital, Nagaon on 01/01/2013 and had conducted the post mortem examination on the dead body of the deceased. According to the post mortem report, the following injuries were found in the dead body :- “Following injuries were found on examination of the dead body: One incise wound of size 5 cm long x 3.5 cm breadth in the middle portion situated horizontally in the enterior and mediar aspect of left arm in the upper part, 6 cm blow the mid axillary crease. It was spindle in shape with clean cut everted margins, deep enough to cut the skin, subcutaneous issues, muscle fibres, the brachael artery and accompanying veins upto periosteum of humerous. Depth is about 4.5 cm No other injury was found. The injury was antimortem in nature. Haematoma was found in the deeper part of the wound containing about 350 ml of blood.” The doctor had opined that the cause of death is due to shock and haemorrhage as a result of injury in major artery as described. 18. PW-16 Sri Pulak Kumar was serving as the In-charge of Puranigodam Police Out Post on 31/12/2012 and was the I.O. entrusted with the investigation of this case. PW-16 had deposed that on receiving information about the incident at about 11 p.m. on 31/12/2012, he had immediately made GD entry No. 504 and rushed to the place of occurrence. On reaching the place of occurrence, he found victim Mousum Phukan in a senseless condition. He had immediately sent the injured to the Nagaon B.P. Civil Hospital by 108 Ambulance. He then drew a rough sketch map of the place of occurrence, examined witnesses. PW-16 has stated that he had received the information about the incident from a person called Diganta Phukan (PW-2) and has also recorded his statement. According to the PW-16, inquest was held on the dead body by the Circle Officer and thereafter, the body was sent for post mortem examination. PW-16 has stated that he had received the information about the incident from a person called Diganta Phukan (PW-2) and has also recorded his statement. According to the PW-16, inquest was held on the dead body by the Circle Officer and thereafter, the body was sent for post mortem examination. On 01/01/2013, accused Nabajyoti Rangdai @ Guddu was arrested from the Nagaon Bus Stand and after interrogating him, the accused was forwarded to the Court and then taken on Police remand. During interrogation, the accused had told that he would be able to show the knife used in committing the offence. Accordingly, the accused person took them to Nalbora and he was accompanied by the Officer-in-Charge of Samaguri Police Station. Thereafter, the knife was seized by him on being shown by the accused vide seizure list Ext. 7 and Ext. 7(3) was his signature. Mat. Ext. 1 is the seized knife. The witness PW-16 has also confirmed that he had seized the motorcycle driven by the victim at the time of occurrence vide Ext. 2 and subsequently given the zimma of the same. According to the PW16, the statement of PW-4 Pran Pratim Bairagi and PW-6 Jayanta Bora were also recorded before the Magistrate under Section 164 Cr.P.C. and the knife was sent for FSL examination. Upon completion of investigation, he had submitted charge sheet i.e. Ext. 15 against the accused person. 19. Taking note of the evidence available on record, the learned trial Court has found the appellant guilty of having committed the murder of the deceased Mousum Phukan and sentenced him as aforesaid. 20. During the course of argument, Mr. Mahajan, learned counsel for the appellant has fairly submitted that in this case, he is not arguing for acquittal but merely for conversion of the conviction of the appellant to one under Section 304 Part-II of IPC on the ground that this is not a case where the appellant had the intent to commit the murder of the deceased but had acted in a heat of passion, having lost his self control on being provoked by the deceased. It is also the submission of Mr. Mahajan that the evidence on record would go to show that there was no previous animosity between the appellant and victim and the incident occurred by chance. It is also the submission of Mr. Mahajan that the evidence on record would go to show that there was no previous animosity between the appellant and victim and the incident occurred by chance. He submits that the incident would not have occurred had the victim not returned back to the same place at around 11-30 p.m. on that night along with his two associates i.e. PWs 4 and 6. By drawing the attention of this Court to the evidence on record, Mr. Mahajan submits that there is absence of pre-meditation in this case and the accused has also not acted with cruelty nor has he taken undue advantage. 21. Relying on a recent decision of the Supreme Court in the case of Stalin Vs. State represented by the Inspector of Police reported in (2020) 9 SCC 524 , Mr. Mahajan submits that the present is a case which would be covered under the exception No 4 of Section 300 of IPC and therefore, would come within the ambit of Section 304 part-II IPC. As such, submits Mr. Mahajan, the present is a fit case for conversion of the jail sentence of the appellant by altering the conviction to one under Section 304 Part-II of the IPC. 22. Ms. B. Bhuyan, learned APP, Assam, on the other hand has argued that the injury was not only confined to the arm of the victim but the ‘dagger’ had also pierced the victim’s chest and, therefore, even though it is a case of single blow, it cannot be said that there was lack of intent on the part of the accused to commit murder of the deceased. Ms. Bhuyan has, however, submitted in her usual fairness that the testimony of PWs 4 and 6 goes to show that an altercation did take place between the accused and the deceased which had apparently generated anger on the part of the accused and, therefore, the possibility of grave provocation cannot be ruled out in this case. 23. We have considered the submissions advanced by learned counsel for both the parties and have also carefully gone through the materials available on record. 24. 23. We have considered the submissions advanced by learned counsel for both the parties and have also carefully gone through the materials available on record. 24. As noted above, the learned counsel for the appellant is not arguing for acquittal of his client but is merely seeking conversion of the conviction from Section 302 IPC to one under Section 304 Part-II of IPC on the ground that the accused/appellant did not have the intention to commit murder of the deceased. In so far as the occurrence is concerned, there is no doubt or dispute about the fact that the incident took place on 31/12/2012 at around 11-30 p.m. at the Nalbora village. At that time, the deceased had just reached the place of occurrence driving a motorcycle along with the PWs 4 and 6. No sooner did they reach the Nalbora village, the appellant, armed with a ‘dagger’ had pounced upon the victim and stabbed him on his left arm, which had resulted into profuse bleeding. Although, the injured victim was immediately shifted to B.P. Civil Hospital at Nagaon, yet, he had succumbed to his injuries a few hours later. It has also come out from the evidence of I.O. PW-16 and the PW12 that the weapon used was a ‘dagger’ which was recovered by the Police on being shown by the accused and his statement to such effect has also been recorded by the I.O. The forensic report also confirms the presence of human blood of Group-B in the ‘dagger’. The post mortem report mentions about one stab injury on the body of the victim. The bulk of evidence brought on record by the prosecution, read in the light of the testimonies of two eye witnesses, leaves no room for doubt that it was none other than the accused/appellant who had fatally assaulted the victim Mousum Phukan leading to his homicidal death. 25. This leads us to the next question as to whether there was intention on the part of the appellant/accused to cause death of the victim. We have already noted herein-before while analyzing the testimonies of PWs 4 & 6 that an altercation did take place between the accused and the deceased at around 9-30 p.m. on the same evening whereby, the deceased had “slapped” the accused protesting against the abusive language hurled by the accused concerning the mother of the deceased. We have already noted herein-before while analyzing the testimonies of PWs 4 & 6 that an altercation did take place between the accused and the deceased at around 9-30 p.m. on the same evening whereby, the deceased had “slapped” the accused protesting against the abusive language hurled by the accused concerning the mother of the deceased. On receiving the slap from the victim, the accused had left the scene promising to return back. From the tone and tenor of the evidence adduced by PWs 4 and 6, it clearly appears that the accused had left the place feeling insulted, promising to return back so as to avenge the insult. Later on, at around 11-30 p.m. when the deceased, driving the motor bike, had returned back to the same place, the accused person had stabbed him. From the evidence on record, it is apparent that the accused was enraged by the slap he had received from the deceased and, therefore, was extremely provoked, which had prompted him to fetch the weapon so as to inflict injury on the deceased. 26. We also find from the evidence of both the eye witnesses that there was no previous animosity between the accused and the victim and they did not even know each other before the incident. The altercation that took place between the two was the development of that evening only. Moreover, from the medical evidence available on record, it is apparent that it is a case of “single blow” dealt by the accused on the left arm of the victim, which is obviously not the vital part of the body. If the accused had the intent of killing the victim, then in all probability he would have struck the victim on the vital parts or the body which was evidently within his reach. Although Ms. Bhuyan, learned APP has submitted that the victim had received injury in his chest also and, therefore, it cannot be said that there was no intent on his part to kill the victim, yet, upon careful examination of the postmortem report Ext. 10, we are unable to agree with such assertion of the learned APP. The post-mortem report Ext. 10 mentions about only one incised wound. PW-15 has also confirmed the same and has mentioned that there was no other injury in the dead body. 27. 10, we are unable to agree with such assertion of the learned APP. The post-mortem report Ext. 10 mentions about only one incised wound. PW-15 has also confirmed the same and has mentioned that there was no other injury in the dead body. 27. It is also to be noted that after giving a “single blow”, the accused had left the place of occurrence in his motor bike. Evidence brought on record indicates that there was no attempt on the part of the accused/appellant to take undue advantage of the situation. 28. While dealing with the issue of cases that would come under Section 302 of IPC and those which would come under the purview of section 304 Part-II of the IPC, the Hon’ble Supreme Court has held as follows in the case of Pulicherla Nagaraju Vs. State of A.P. reported in (2006) 11 SCC 444 . “29. Therefore, the court should proceed to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls under Section 302 or 304 Part I or 304 Part II. Many petty or insignificant matters – plucking of a fruit, straying of cattle, quarrel of children, utterance of a rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Usual motives like revenge, greed, jealousy or suspicion may be totally absent in such cases. There may be no intention. There may be no premeditation. In fact, there may not even be criminality. At the other end of the spectrum, there may be cases of murder where the accused attempts to avoid the penalty for murder by attempting to put forth a case that there was no intention to cause death. It is for the courts to ensure that the cases of murder punishable under Section 302, are not converted into offences punishable under Section 304 Part I/II, cases of culpable homicide not amounting to murder, are treated as murder punishable under Section 302. It is for the courts to ensure that the cases of murder punishable under Section 302, are not converted into offences punishable under Section 304 Part I/II, cases of culpable homicide not amounting to murder, are treated as murder punishable under Section 302. The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances : (i) nature of the weapon used ; (ii) whether the weapon was carried by the accused or was picked up from the spot; (iii) whether the blow is aimed at a vital part of the body; (iv) the amount of force employed in causing injury; (v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight; (vi) whether the incident occurs by chance or whether there was any premeditation; (vii) whether there was any prior enmity or whether the deceased was a stranger ; (viii) whether was any grave and sudden provocation. And if so, the cause for such provocation; (ix) whether it was in the heat of passion; (x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner; (xi) whether the accused dealt a single blow or several blows. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention. Be that as it may.” 29. In the context of exception IV of Section 300 of IPC, the Supreme Court has observed in the case of Stalin (supra) relied upon by the appellant’s counsel, as follows :- “11. As per Exception IV to Section 300 IPC, culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage and not having acted in a cruel or unusual manner. In the present case, at the place of incident the beer was being served; all of them who participated in the beer party were friends; the starting of the incident is narrated by PW 3, as stated hereinabove. In the present case, at the place of incident the beer was being served; all of them who participated in the beer party were friends; the starting of the incident is narrated by PW 3, as stated hereinabove. Therefore, in the facts and circumstances, culpable homicide cannot be said to be a murder within the definition of Section 300 IPC and, therefore, in the facts and circumstances of the case narrated hereinabove and the manner in which the incident started in a beer party, we are of the opinion that Section 302 IPC shall not be attracted. 12. Now, the next question which is posed for consideration of this Court is whether the case would fall under Section 304 Part II IPC? Considering the totality of the facts and circumstances of the case and more particularly that the accused inflicted the blow with a weapon like knife and he inflicted the injury on the deceased on the vital part of the body, it is to be presumed that causing such bodily injury was likely to cause the death. Therefore, the case would fall under Section 304 Part I IPC and not under Section 304 Part II IPC”. 30. In the case of Sukhbir Singh Vs. State of Haryana and others reported in (2002) 3 SCC 327 the Hon’ble Supreme Court, while dealing with a similar issue, had held that in order to avail the benefit of Exception IV of Section 300 of the IPC, defence is only required to probabilise that the offence was committed without premeditation, in sudden fight and in a heat of passion, upon a sudden quarrel and the offender had not taken any undue advantage and had not acted in a cruel or unusual manner. 31. In the instant case, the evidence clearly suggest that the victim had provoked the appellant by giving him a slap. The appellant had left the scene and had returned back with a ‘dagger’. He was waiting there so as to strike a blow on the deceased. However, having regard to the fact that the accused had struck only one blow in the left arm of the victim, we are of the considered view that there was no intention to kill although the accused/appellant presumably had the requisite knowledge that the assault was likely to cause death. However, having regard to the fact that the accused had struck only one blow in the left arm of the victim, we are of the considered view that there was no intention to kill although the accused/appellant presumably had the requisite knowledge that the assault was likely to cause death. Moreover, as noticed above, the quarrel between the accused and the victim took place by chance. The accused appellant was a person of young age and therefore, it is possible that despite the time gap of an hour or so between the quarrel and the assault, the anger or the passion on the accused did not sufficiently die down so as to restore normalcy in his state of mind. As a matter of fact, it appear to us that had the victim not left the place along with PWs 4 & 6 immediately after the quarrel, the occurrence would have taken place much earlier. The above possibility, in our view, would only strengthen the theory that the accused had acted under the heat of passion and assaulted the victim having lost his self control. 32. For the reasons stated above, we hereby set aside the conviction of the appellant under Section 302 of the IPC and instead, convict him under Section 304 Part-II of the IPC. 33. Accordingly, the jail sentence awarded to the appellant, shall now be reduced to rigorous imprisonment for a period of 10(ten) years, which would, however, be adjusted against the sentence already undergone. 34. In so far as the fine imposed by the learned trial Court is concerned, the same remains undisturbed. 35. The appeal stands partly allowed. Send back the LCR.