JUDGMENT : N. Kotiswar Singh, J.— 1. Heard Ms. B. Choudhury, learned amicus curiae appointed by this court to assist this court on behalf of the appellant. Also heard Mr. P. Borthakur, learned Additional Public Prosecutor, Assam for the State and Ms. B. Sarma, learned Legal Aid Counsel appears for the informant (respondent No. 2). 2. The present appeal has been, preferred against the judgment dated 20.12.2018 passed by the learned Sessions Judge, Sivasagar in Sessions Case No. 83(S-N) of 2017 arising out of G.R. Case No. 647/2015, whereby the appellant has been convicted under section 302, IPC and sentenced to undergo rigorous imprisonment for life with a fine of Rs. 2,000 only in default of which to undergo simple imprisonment for another 2 months with further conviction under section 325, IPC and sentenced to undergo rigorous imprisonment for 2 years with a fine of Rs. 1,000 in default of which, to undergo further simple imprisonment for 1 month. Both the sentences were directed to run concurrently. 3. The brief facts of the case as can be gathered from the records is that an FIR was lodged on 29.12.2015 by one Sri Lakheswar Karmakar, father of the appellant alleging that on 23.12.2015, at about 8 p.m. he had a quarrel with his eldest son Tulsi Karmakai (alias Latu) and at that time, his son was in a heavily drunken state. He took a dao from his home and inflicted severe injuries on him (Lakheswar) and Drupadi Karmakar, the mother of the appellant, thus, hacking them with the dao indiscriminately and fled away from the house. Soon after Tulsi fled, the neighbours came and immediately took them to the hospital of Chantak Tea Estate Seeing the seriousness of the injury, the Doctor of the Tea Estate referred them to the Government Hospital at Assam Medical College and Hospital (‘AMGH’), Dibrugarh. However, on the way his wife, Drupadi Karmkar died. 4. Based on the aforesaid FIR, a case being Bihubor P.S. Case No. 60/2015 under section 326/302, IPG was registered. On completion of the investigation, the following charges were framed against the appellant (Tulsi Karmakar). Firstly, that on 23.12.2015, at about 8.00 p.m. the appellant had assaulted Smt. Drupadi Karmakar with a dao and on : 24.12.2015 the said Drupadi Karmakar succumbed to her injuries during treatment at AMCH; Dibrugarh and thereby committed the offence punishable under section 302, IPC. On completion of the investigation, the following charges were framed against the appellant (Tulsi Karmakar). Firstly, that on 23.12.2015, at about 8.00 p.m. the appellant had assaulted Smt. Drupadi Karmakar with a dao and on : 24.12.2015 the said Drupadi Karmakar succumbed to her injuries during treatment at AMCH; Dibrugarh and thereby committed the offence punishable under section 302, IPC. Secondly, that on 23.12.2015, at about 8.00 p.m. the appellant voluntarily caused grievous hurt to Sri Lakheswar Karmakar by means of a Dab and thereby committed an offence punishable under section 326, IPC. 5. The prosecution produced 7 witnesses and the defence, 2 witnesses in course of the trial. 6. The learned trial court after considering the evidences adduced by the prosecution convicted the appellant under section 302, IPC, and section 325, IPC instead of section 326, IPC and sentenced as mentioned above 7. Before we go to the merit of the casts, we will consider the relevant evidence on record, first the prosecution witnesses and then the defence witnesses. 8. PW-1, Sri Lakheswar Karmakar the informant and the father of the appellant. He deposed that the appellant is his son and the deceased Drupadi Karmakar, his wife (and the mother of the appellant. The appellant-Tulsi Karmakar resided in the nearby house in same compound. He deposed that on 23.12.2015, at about 8.00 p.m, he along with his wife, Drupadi Karmakar anc. This daughter, Nemita Karmakar and son Naresh Karmakar, were in his house. At that time, the appellant g asked his sister to open the door for taking some vegetables. On opening the door, the appellant entered his house and physically assaulted his mother Drupadi. On hearing the cry, when PW-1 came out of his room, file appellant assaulted him on the leftside of the head. He also stated that he saw injury on the back side of his wife's neck. When PW-1 reused h an alarm, his youngest son PW-2 who was in another room came out of the room. The local villagers also gathered there who then took them to Santak Bagan Hospital for treatment and from there, they were taken to Assam Medical College and Hospital (AMCH), Dibrugarh. They reached there on the next day early morning. However, his wife Drapudi died at AMCH and he remained at AMCH as an indoor patient for about 10 days. The local villagers also gathered there who then took them to Santak Bagan Hospital for treatment and from there, they were taken to Assam Medical College and Hospital (AMCH), Dibrugarh. They reached there on the next day early morning. However, his wife Drapudi died at AMCH and he remained at AMCH as an indoor patient for about 10 days. He also deposed that on the date of incident, in the afternoon, his wife Drapudi had scolded the appellant-Tulsi Karmakar concerning missing of some money. During the cross-examination PW-1 stated that he had signed the FIR on the date of occurrence at Santak Bagan Hospital. He, however, stated that he could not say about the contents of the FIR nor who had written the FIR. He stated that the police personnel might have taken his signature. He also stated that an altercation started relating to taking of Rs. 2000. Initially his wife asked him (the appellant) as to whether he had taken the money and on his denial, she scolded the appellant and out of anger, his wife told the appellant that he is not her son, etc. During the cross-examination, PW-1 denied the suggestion that it was the mother and not the son, who attempted to assault the appellant. PW-1 also denied that the appellant snatched the dao from his wife and hit her. The appellant also stated that Lakhi, wife of the appellant, was pregnant, and on the date of the incident she had some abdominal pain. Then the appellant called PW-1 to his room through his daughter, who then arranged one local nurse for treating Lakhi. PW-1 denied of any altercation between Lakhi and his youngest son Naresh Karmakar. PW-1 stated that subsequently he came to know that Lakhi had sustained cut injury on her stomach and she was also taken to AMCH and admitted therein. PW-1 denied the suggestion that on getting injury by Lakhi, when the appellant came to his house for asking his mother about the incident, an altercation took place between appellant's mother and the appellant. PW-1 stated that on hearing hue and cry, the family members of his neighbour and many others arrived. He also stated that Dilip Tanti (PW- 4) who resides about 500 metres from his house also came there on being called by somebody. He denied that he had falsely implicated the appellant in order to save his youngest son. PW-1 stated that on hearing hue and cry, the family members of his neighbour and many others arrived. He also stated that Dilip Tanti (PW- 4) who resides about 500 metres from his house also came there on being called by somebody. He denied that he had falsely implicated the appellant in order to save his youngest son. He also denied that he had lodged a false FIR. 9. PW-2, Sri Naresh Karmakar was the younger brother of the appellant The appellant-Tulsi Karmakar used to reside in the nearby house in same compound. He deposed that at the time of incident, he along with his mother Drupadi Karmakar, sister Nemita Karmakar and father Lakheswar were in their house. He stated that on 23.12.2015, at about 8 p.m. when he was in his room, on hearing a hue and cry, he came out of the room and saw the appellant leaving their house with a dao. He also saw his father coming out of the house holding his injured head and his mother lying with injuries inside the house. He saw injury on the back of the neck and hand of his mother. Local villagers also soon gathered there. They took his parents to Santak Bagan Hospital for treatment. From there they were taken to Sivasagar Hospital at Joysagar and thereafter to AMCH. PW-2 stated that his mother died on the way to Dibrugarh and his father remained at AMCH as an indoor patient for about 15 days. PW-2 deposed that on the date of incident, in the afternoon hours his mother had scolded the appellant for stealing her money. After arrest of the appellant, the police brought the appellant to their residence in search of dao used by the appellant but the said dao could not be recovered. He also deposed that the police had interrogated him. In the cross-examination by the defence, PW-2 stated that Lakhi, the wife of the appellant had sustained cut injury on her stomach and was taken to AMCH by him from Santak Hospital and was admitted there. He denied that he had inflicted cut injury on Lakhi's abdomen and could not say if Dilip Tanti had taken Lakhi to Santak Hospital. He denied that after getting injury by Lakhi, the incident of assaulting of his parent happened. He denied that he had inflicted cut injury on Lakhi's abdomen and could not say if Dilip Tanti had taken Lakhi to Santak Hospital. He denied that after getting injury by Lakhi, the incident of assaulting of his parent happened. He denied that while giving statement to police he had not stated that “I have seen the accused going out of my house with Dao.” He stated that 5-6 villagers accompanied him while taking his parents to Sivasagar Hospital and Lakhi's mother also accompanied them. He stated that Lakhi's mother was also a resident of Santak Bagan and the police met all those persons at Santak Hospital. 10. PW-3, Dr. Durlakh Thengal, was the Registrar, Department of Surgery, AMCH, Dibrugarh who examined the injured Sri Lakheswar Karmakar. He deposed that the patient was admitted in the hospital on 24.12.2015 and was discharged as per medical advice on 27.12.2015 and on examination he found the following injuries on him: “History: Alleged history of physical assault on 23.12.2015 at around 8.00 p.m. at Santak Sivasagar. Injury : Appox. 10 cm × 1 cm × 1 cm lacerated wound over left fronto parietal region of sclap exposing skull bone. The patient was advised NECT Head” NECT head report (CT No. 5428) : Communicated displaced fracture at left parietal bone and soft tissue swelling with air-foci??? over left fronto parietal region.” PW-3 gave his opinion that the injury was grievous in nature. In the cross-examination, P.W. 3 deposed that in his report exhibited as Ext. 3 he had mentioned the injury as grievous as it was a fracture injury caused by suspected to be a blunt object. 11. PW-4, Sri Dilip Tanti, a Tea Estate employee and VDP Secretary, deposed that the appellant-Tulsi Karmakar @ Ladu was known to him being a worker of the same bagan and also knew the deceased Drupadi Karmar and the injured Lakheswar Karmakar, the parents of the appellant. He deposed that on 23.12.2015, at about 9.00 p.m., when he was at his residence, one Maya Bawri, a neighbour of the appellant informed him over phone that some incident of assault had taken place at the residence of Lakheswar Karmkar. On learning this, being the VDP Secretary, he went to the residence of Lakheswar Karmkar saw him in a pull cart. On learning this, being the VDP Secretary, he went to the residence of Lakheswar Karmkar saw him in a pull cart. He accompanied them to Santak Bagan Hospital, and from the Hospital, he had informed to Bihubar PS about the incident. He stated that due to the critical condition, both the injured were taken to Santak Civil Hospital in a Bagan Ambulance and from there they were referred to Sivasagar Hospital at Joysagar. The patients were sent to Sivasagar with the villagers and one son of the injured. He came to the residence of the injured with the police and found pool of blood near the kitchen. He also saw bunch of hair of woman and scattered boiled rice at that place. He stated that he came to know that on the way to Dibrugarh, Drupadi died, and Lakheswar Karmakar was admitted at AMCH. He also stated that he saw injury on the neck of Drupadi and bleeding injury on the head of Lakheswar Karmakar. After few days, police apprehended appellant-Tulsi Karmakar. PW-4 also stated that he was called by the police and accompanied them while searching for the dao near banana trees on the backside of the house as led by the appellant but failed to recover the dao though appellant stated that he had thrown the dao at that place. He also stated that Sankar Chawra, VDP President was also with him. During the cross-examination by the defence, PW-4 denied that he had seen the incident of assault on the injuries. He stated that while giving statement to police, he had not stated about knowing about the incident from Maya Bawri, meeting the injured Drupadi Karmakar and Lakheswar Karmakar while bringing in a pull cart, seeing injury on the back side of the neck of Maya, visiting residence of the injured and finding of pool of blood near the kitchen; seeing bunch of hair of woman and scattered boiled rice at that place, patients being admitted at Sivasagar Hospital and referred to AMCH, Dibrugarh, about the death of Dnipadi on the way to Dibrugarh and of admission of Lakheswar Karmakar at AMCH. He denied that he had deposed falsely as tutored. He also denied giving statement to police that appellant-Tulsi, resided in same compound with different mess and the appellant is married and lives with his wife. He denied that he had deposed falsely as tutored. He also denied giving statement to police that appellant-Tulsi, resided in same compound with different mess and the appellant is married and lives with his wife. Though he stated that on the date of incident, wife of Tulsi also got injured on her abdomen, he could not notice the type of injury as cloth was wrapped on her abdomen. He stated that while giving statement to police, he had not stated that he brought Lakhi Karmakar, wife of Tulsi to Santak Hospital. However, he knew that she was taken to Santak and then to AMCH for treatment, where she was treated for a few days. He stated that he had heard from the villagers that Naresh Karmakar, younger brother of the appellant had inflicted cut injury on Lakhi Karmakar. He, however, denied that Naresh had assaulted his parents. 12. PW-5, Sri Sankar Chawra stated that the accused-Tulsi Karmakar @ Ladu was known to him a being worker of same Bagan. He stated that on 24.12.2015 at about 7.00 a.m., while he was at his work place, he came to know from the co-labourers that a quarrel had taken place at the residence of the appellant. He also stated that he had heard that the appellant injured his parents. After three days, police came to the factory with the appellant and took him and the VDP Secretary Dilip Tanti to the residence of the appellant where the police searched for the dao near banana trees on the backside of the house as led by the appellant but they failed to recover the dao though the appellant had stated, that he had thrown the dao by which he cut his parents at that place. He stated that he did not ask Lakheswar as to how the incident took place. He was not cross-examined by the defence. 13. He stated that he did not ask Lakheswar as to how the incident took place. He was not cross-examined by the defence. 13. PW-6, Sri Utpal Bora deposed that on 23.12.2015, when he was posted as O/C at Bihubhar Police Station, on that day, at about 10.30 p.m. He received an information over phone from the VDP Secretary/Sri Dilip Tanti of Santak regarding a quarrel at Line No. 3 of Santak T.E. On receiving the information, the same was entered in Bihubar PS GD Entry book vide GD Entry No. 377 dated 23.12.2015 and proceeded to the place of occurrence to investigate the matter PW-6 deposed that accordingly, at 11.10 p.m., he went to the place of occurrence, i.e., the residence of Lakheswar Karmakar and came to know that Lakheswar Karmakar and his wife Drupadi Karmakar were taken to Santak PHC, from where they were referred to Sivasagar Civil Hospital and from there to AMCH. On entering the house of the injured with local villagers, he did not find any there. He stated that he had noticed blood stain in the kitchen room inside the house of the injured. He had also searched the place of occurrence and its nearby areas but could not seize anything. He stated that he had recorded the statement of the witnesses at the place of occurrence. From the witnesses he came to know that Tulsi Karmakar had assaulted his father Lakheswar Karmakar and Drupadi Karmakar by sharp object. He also learnt that Naresh Karmakar, brother of the accused had assaulted Lakhi Karmakar, wife of the appellant and after the said incident, Tulsi assaulted his parents. On the next day morning, he had also visited the place of occurrence and prepared a rough sketch map, Ext. 5. He stated that during the investigation, he came to know that Drupadi Karmakar succumbed to her injuries at AMCH. The inquest was done by Borbari OP and the post mortem was done at AMCH. PW-6 stated that on 29.12.2015, he had received one written FIR from Lakheswar Karmakar and registered Bihubari PS Case No. 60/2015 under section 326/302, IPC and took charge to make further investigation of the case. He further stated that on 4.1.2016 appellant-Tulsi Karmakar surrendered at Police Station and was arrested and forwarded to judicial custody. He stated that on his transfer, he had handed over the Case Diary to his successor. He further stated that on 4.1.2016 appellant-Tulsi Karmakar surrendered at Police Station and was arrested and forwarded to judicial custody. He stated that on his transfer, he had handed over the Case Diary to his successor. From the Case Diary, it appeared that his successor I/O had collected the post mortem report, SCD from Borbori OP, injury report of Lakheswar Karmakar, and upon completion of investigation, charge sheet was submitted against the appellant under section 302/326, IPC. He stated that in this case, he had recorded the statement of all the witnesses. During the cross-examination by the defence, PW-6 stated that witness Naresh did not state before him that he had seen the accused going out of his house with dao. PW-6 also stated that witness Dilip Tanti, PW-4 had not stated before him about knowing of the incident from Maya Bawri, but stated that on arriving at the house of Lakheswar, he saw injured Drupadi Karmakar and Lakheswar Karmakar and took them to local hospital in a pull cart and saw injury on the backside of the neck of Drupadi and bleeding injury on the head of Lakheswar. PW-6 stated that, however, Dilip Tanti did not say about finding of pool of blood near the kitchen, seeing a bunch of hair of woman and scattered boiled rice at that place, etc., as stated his deposition. He stated that during the investigation, he came to know that apart from Drupadi and Lakheswar Karmakar, appellant's wife Lakhi was also brought to Santak PHC and from there to Sivisagar Civil Hospital He had not collected any medical examination report from Santak PHC or from Sivasagar Civil Hospital. He also did not collect any medical report of Lakhi Karmakar as he did not meet her during investigation, though he came to know that she was treated at AMCH. He did not register any case on the assault on Lakhi Karmalw as no FIR was submitted on that aspect. FIR was lodged after 6 days of the incident and no reason for delay was mentioned in the FIR. He did not question the informant for the delay in lodging the FIR. In the FIR there was no mention of the scribe of FIR and he did not investigate about the scribe of the FIR. He stated that he examined the informant on 29.12.2015. He did not question the informant for the delay in lodging the FIR. In the FIR there was no mention of the scribe of FIR and he did not investigate about the scribe of the FIR. He stated that he examined the informant on 29.12.2015. He did not visit AMCH for recording statement of injured Lakheswar Karmakar. He denied that FIR was signed by the complainant on 3.1.2016 at PS Campus after returning from AMCH. He stated that the residence of the appellant and the deceased are in the same campus. He searched for the appellant but was found absent in his house. He denied the suggestion of the defence that he did not search for the accused and that the accused was not absconding. 14. PW-7, Dr. Subhajyoti Deka, Associate Professor, Department of Forensic Medicine, AMCH, Dibrugarh deposed that he had appeared on being directed by the Superintendent, SMCH, Dibrugarh with the post mortem register in respect of the post mortem done on the body of Drupadi Karmakar. He deposed that on 24.12.2015, at about 03.45 p.m., Dr. S.J. Gogoi who was working as the Demonstrator, Department of Forensic Medicine, AMCH, Dibrugarh, on police requisition performed the post mortem examination on the dead body of the deceased, Drupadi Karmakar. He stated that the dead body was brought and identified by Dilip Lohar and Naresh Karmakar, PW-2. Relevant portions of the post mortem report are reproduced hereinbelow: “I. External appearance 1. Condition of subject stout emaciated, decomposed, etc. One average built wash complexioned female body deceased with a sari petticoat, blouse. Eyes and mouth closed. Rigor mortis present all over the body. Body cold on touch. 2. Wounds, Position, Character: Injury (1) Chop wound of sixe 8× 2 cm. bone deep present over occipital area of scalp on left side obliquely 4 cm. from midline. (2) Chop wound of size 6 × 2 cm × muscle deep present over left side of back of neck longitudinally 6 cm. from midline. Underlying muscles, vessels cut. (3) Chop wound of size 6× 3 cm × muscle deep present over back of chest on left side obliquely. N.B. : Margins of injury Nos. (1) to (3) are abraded at places. Blood clots adherent to wound margins which resist washing with running water. 3. Bruise Position size and nature: 4. Mark of ligature on neck dissection, etc. : Healthy. II. N.B. : Margins of injury Nos. (1) to (3) are abraded at places. Blood clots adherent to wound margins which resist washing with running water. 3. Bruise Position size and nature: 4. Mark of ligature on neck dissection, etc. : Healthy. II. Cranium and spinal canal 1. Scalp, skull, vertebrae: Scalp-As described. Skull, vertebrae-All healthy. 2. Membrane: Healthy. 3. Brain and spinal cord: Brain — Healthy. Spinal cord-Not examined. Note : The spinal canal need not be examined unless any indications of disease or injury exist. III. Thorax 1. Walis ribs and cartilages: Walis — As described. Ribs, cartilages-All healthy. 2. Pleurae: Both pleurae healthy, pale. 3. Laryax and trach ere: All healthy, pale. 4. Right lung: Both lungs healthy, pale. 5. Left lung: Healthy. 6. Pericar (dium): 7. Heart: Healthy/empty. 8. Vessels: All healthy. IV. Abdomen 1. Walls: Healthy. 2. Peritonoum: Healthy, pale. 3. Mouth, pharyanx, oesophagus: All healthy, pale. 4. Stomach and its contents: Healthy, pale and contains liquid substance. 5. Small intestine and its contents: Healthy, pale and contains liquid substance. 6. Large intestine and its contents: Healthy, pale and contains gases and faecal substance. 7. Liver: Healthy, pale. 8. Spleen: Healthy. 9. Kidneys: Both kidneys healthy, pale. 10. Bladder: Healthy, pale and empty. 11. Organs of generation extema: Ext.-Healthy, and internal Int. — Uterus healthy (..illegible). Others-All healthy. V. Muscles, bones and joints 1. Injury: As described 2. Disease or deformity: NIL 3. Fracture: 4. Dislocation: Assistant Surgeon Opinion of as to cause of death Sub-Assistant Surgeon Death was due to haemorrhage and shock resulting from injuries as described. All the injuries were ante mortem and caused by moderately heavy sharp cutting weapon and homicidal in nature. Approx. time since death was 8 to 16 hours.” 15. PW-7 identified the signature of the doctor who conducted the post mortem in Ext. 8, post mortem report. Ext. 9 was the Post Mortem Register of AMCH and Ext. 9(1) was the relevant entry by which the fact of conduct of post mortem examination was entered. He deposed that as per the Register, the post mortem was conducted at 03.30 p.m. Ext. 9(3) was the Xerox copy of the relevant entry of Ext. 9(1) which was proved in original. PW-7 was not cross-examined. 16. DW 1, Lakhi Karmakar was the wife of the appellant, Tulsi Karmakar, who deposed in favour of the appellant. He deposed that as per the Register, the post mortem was conducted at 03.30 p.m. Ext. 9(3) was the Xerox copy of the relevant entry of Ext. 9(1) which was proved in original. PW-7 was not cross-examined. 16. DW 1, Lakhi Karmakar was the wife of the appellant, Tulsi Karmakar, who deposed in favour of the appellant. She deposed that appellant was her husband and she lived with him in a different house from her father- in-law but in the same campus. According to her, on 23.12.2015, at about 7 p.m., when she was at her residence, her brother-in-law (husband's brother, Naresh Karmakar) came to her residence and stabbed at her abdomen with a kalam katari. At that time she was pregnant for 5 months. She stated that she gpt cut injury on left side of her belly. Naresh also assaulted on the back of her chest and she got injury there. At that time, her husband, Tulsi Karmakar, the appellant was in the kitchen. On getting injury, she fell down and lost consciousness, whereupon, her husband Tulsi went out of her room in search of Naresh and entered his father's room. She stated that she regained sense at Dibrugarh and came to know that initially she was taken to Bagan Hospital and from there to Sivasagar Hospital and finally at AMCH, Dibrugarh. She stayed for 9 days at Dibrugarh. She stated that at AMCH, Naresh informed her that her husband had killed his mother Drapudi and also asked her to return to matrimonial home and as such, since after her return from medical college she was not allowed to enter her husband's room and was living with her parents. On being cross-examined by the prosecution, DW-1 stated that Naresh (PW-2) had insulted her inside her bedroom and that on getting 2 cut injuries she fell down on her bedroom and lost consciousness. She, however, could not say in which direction Naresh had gone, and in which direction her husband had gone in search of Naresh. She admitted that Naresh was also at AMCH, Dibrugarh. She also admitted that she was taken to AMCH by Naresh in a vehicle in and her father-in-law and mother-in-law who also got injuries were also taken in the same vehicle. She denied that Naresh did not assault her. She admitted that Naresh was also at AMCH, Dibrugarh. She also admitted that she was taken to AMCH by Naresh in a vehicle in and her father-in-law and mother-in-law who also got injuries were also taken in the same vehicle. She denied that Naresh did not assault her. She also denied that when her husband Tulsi assaulted his parents, she went there to resist him and in that process she got injury from the dao used by her husband. She denied that for that reason, the did not file any case against Naresh for her injuries. She also denied that in the interest of her husband, she had deposed falsely against Naresh. 17. DW 2, Sri Sukarmani Tanti, deposed that the appellant was his son- in-law and Smt. Lakhi Karmakar was her daughter through her first husband Ramchandra Goala. She stated that about 3 years back, in one evening on being informed by a neighbour of her daughter that her daughter was assaulted at her abdomen, she came to Lakhi's house ‘and saw her with cut injury on her abdomen and back of the chest. From there she took Lakhi to Bagan Hospital. She accompanied them to Hospital and from threre her daughter Lakhi was taken to AMCH, Dibrugarh. She stated that she heard from her daughter that her brother-in-law Naresh inflicted the cut injury on her. During cross-examination, DW-2 denied that her daughter had never informed her that Naresh had inflicted the cut injury on her. She stated that she heard from her daughter that the appellant-Tulsi had assaulted his parents with dao and his mother died due to the injury at Dibrugah and his father also got some injury on his head and they were taken to Dibrugarh. She stated that her daughter was pregnant at that time and she heard that during the scuffle, when her daughter tried to snatch the dao from her husband, she got the injuries on her abdomen, and presently, Lakhi and her children were living with her. She also stated that she or her daughter did not file any case against Naresh for the injuries. 18. She also stated that she or her daughter did not file any case against Naresh for the injuries. 18. In the light of the evidences discussed above and other evidences adduced before the trial court, the issue before this court is whether the prosecution has been able to establish the charge that the appellant had intentionally caused the death of his mother and also injured his father for which he was convicted by the trial court under section 302, IPC and section 325, IPC, respectively. 19. For the aforesaid purpose, it is to be established by the prosecution through direct or circumstantial evidences that it was the appellant who was responsible for the death of his mother and causing injury to his father. 20. There are medical evidence to show that the mother of the deceased received three injuries. (1) Chop wound of size 8 × 2 cm bone deep present over occipital area of scalp on left side obliquely 4 cm from midline; (2) Chop wound of size 6 × 2 cm muscle deep present over left side of back of neck longitudinally 6 cm from midline, underlying muscles, vessels cut and, (3) Chop wound of size 6 × 3 cm muscle deep present over back of chest on left side obliquely. The opinion of the medical expert was that these injuries were ante mortem and caused by moderately heavy sharp cutting weapon and were homicidal in nature and death was due to haemorrhage and shock resulting from aforesaid injuries. Thus, it was incumbent upon the prosecution to establish that it was the appellant who had caused the aforesaid injuries to the said deceased. 21. As regards the injuries received by PW-1, father of the appellant, the medical report shows that he had received injury of appox. 10 cm × 1 cm × 1 cm lacerated wound over left fron to parietal region of scalp exposing skull bone which, according to the medical opinion, was grievous in nature and it was a fracture caused by an object suspected to be blunt. Similarly, it was incumbent upon the prosecution to prove that it was caused by the appellant. 22. From the above, what transpires is that while the injuries received by the deceased was caused by heavy sharp cutting weapon, as far as the injury received by the appellant's father was concerned, it was by a blunt object. Similarly, it was incumbent upon the prosecution to prove that it was caused by the appellant. 22. From the above, what transpires is that while the injuries received by the deceased was caused by heavy sharp cutting weapon, as far as the injury received by the appellant's father was concerned, it was by a blunt object. The allegation of the prosecution is that the appellant had used a dao. If the use of dao is established, it can certainly cause the aforesaid two kinds of injuries, sharp as well as blunt. It is a well-known fact that a dao is a local general purpose instrument used by villagers for cutting firewood, etc., of which one edge is sharp and the other, blunt. We have to now examine whether such a weapon was used by the appellant. 23. As far as the occurrence of the incident is concerned, there are 2 eye witnesses, i.e., the appellant's father, Lakheswar Karmakar, PW-1, who received injuries as well as the appellant's younger brother, Naresh Karmakar and defence witness, DW-1, Lakhi Karmakar who narrated a different story but both the narration involved use of dao. As per the prosecution and the evidence adduced by PW-1, father of the appellant, who received injury, stated that the appellant on the date of incident, at about 8 p.m. had asked his daughter to open the door for taking some vegetables. Thereafter, on opening the door, the appellant entered his house and assaulted his mother, Drupadi. On hearing the cry, when he came out of his room, the appellant also inflicted injury on his head. Though PW-1 did not specifically say that he witnessed the actual assault of his wife by his son, there is evidence on record to show that when he heard the cry of his wife and he came out of his room, the appellant inflicted injury on his head. He also saw injury on the backside of the neck on his wife. Therefore, he raised an alarm. Upon raising hue and cry by PW-1, his son Naresh Karmakar came out of his room: PW-1 stated that in the afternoon hours on the same day, his wife had scolded the appellant regarding missing of some money. The evidence regarding the incident became clearer during the cross-examination by the defence. PW-1 stated that an altercation started regarding missing of Rs. The evidence regarding the incident became clearer during the cross-examination by the defence. PW-1 stated that an altercation started regarding missing of Rs. 2,000 between his wife and the appellant when the wife scolded the appellant that the appellant is not her son, etc. 24. As to whether there was an altercation between the appellant's mother and the appellant, the appellant clearly admitted that on the date of the incident, the mother of the appellant had scolded the appellant. To the question No. 13 asked by the trial court to the appellant which reads as follows: “PW-2 also deposed that on the date of incident, in afternoon hours your mother has scolded you for stealing her money. What is your say?”, the appellant had replied in affirmative — “Yes”. Thus, the fact that the mother of the appellant scolded the appellant is fully corroborated by the statement made by the appellant under section 313, CrPC. This fact of scolding, according to the appellant, was the reason for assaulting of his parents by him. 25. The statement of the appellant under section 313, CrPC, as regards the other aspects corroborates the case of the prosecution. The appellant never denied entry to the house of his mother where the assault had taken place. This is evident from the answers given by the appellant to the court while being examined under section 313, CrPC. To the question No. 2 asked to the appellant by the trial court which reads as follows: “PW-1 also deposed that on 23.12.2015 at about 8 p.m., you asked your sister to open the door for taking some vegetables. On opening the door, you entered inside the house of your parents and physically assaulted your mother Drupadi. He also saw injury on the bade side of neck of his wife. What is your say?”, the answer given by the appellant to the said question was as follows: “I went there to stop my mother who was rebuking me for taking money from my father. However, out of anger, some incident of assault happened there. I did not do so with intention to cause her death.” Similarly, to the question No. 3 asked by the court to the appellant which reads as follows: “PW-1 also deposed that on hearing cry, when he came out of his room, you also inflicted cut injury on his head. However, out of anger, some incident of assault happened there. I did not do so with intention to cause her death.” Similarly, to the question No. 3 asked by the court to the appellant which reads as follows: “PW-1 also deposed that on hearing cry, when he came out of his room, you also inflicted cut injury on his head. He got injury on the left side of the head. What is your say?”, the answer given by the appellant was as follows: “Might be.” 26. From the above answers given to the questions asked by the trial court, it is clearly evident that the appellant, in fact, admitted of going to the house of his mother who on being rebuked for taking money from his father, out of anger had assaulted his mother though he claimed that he did not have any intention to cause her death. This admission clearly corroborates the prosecution case. Similarly, the appellant also had not clearly denied the case of the prosecution that he caused injury to his father. On the contrary, the following answer given by the appellant to the trial court rather corroborates the case of the prosecution. To the question No. 7, asked by the trial court to the appellant, which reads as follows: “PW-1 also deposed that on the date of incident, in afternoon hours your mother has scolded you for missing of some money. What is your say?”, the appellant gave the answer in the affirmative as “Yes” The appellant admitted that his mother had scolded him regarding missing of some money. Similarly, when the trial court asked him about the deposition of PW-2 that on re-entering his house, he saw that his father had come out of the house with holding his head in injured condition and his mother was lying with injuries inside the house and he saw injury on the back side of neck, hand of his mother, the appellant answered that it may be possible. Thus, the appellant did not deny the evidence of PW-2 as regards his mother lying in the house with injuries. 27. From the above, it can be said that the case of the prosecution that the appellant had come to the house of the deceased mother and had assaulted his mother and father after being, rebuked by his mother regarding missing of some money stands, established. 27. From the above, it can be said that the case of the prosecution that the appellant had come to the house of the deceased mother and had assaulted his mother and father after being, rebuked by his mother regarding missing of some money stands, established. He also never denied of assaulting his parents, though the appellant had not admitted of using dao. 28. From the above evidence, when the appellant has admitted assaulting his parents and causing such injuries, the evidence of PW-2/the younger, brother of the appellant that he saw the appellant leaving the house with the dao stands corroborated. In fact, the use of dao by the appellant has also come out clearly from the evidence of PW-1 who received the injury from his son. 29. Though PW-1 did not categorically mention the use of dao to assault him and his wife, it was suggested by the defence that during, the altercation, the appellant's mother tried to hit the appellant with a dao, then the appellant snatched the dao from his mother and hit her. Thus, it was the suggestion of the defence that a dao was used during the altercation which was snatched by the appellant. 30. Under the circumstances, it can be clearly inferred that a dao was used and it was the appellant who used the dao to assault. Thus, the use of dao by the appellant stands established. 31. The fact that the appellant had admitted that he went to the house of his mother, though he claims that he went there to stop her who was rebuking him for missing of the money and out of anger, the incident of assault happened clearly corroborates the prosecution case that he assaulted his mother. Though he might not have any intention to cause death, the assault which caused the death of his mother has been established by the prosecution beyond any reasonable doubt. 32. It may be noted here that the appellant also tried to make a case that his younger brother Naresh Karmakar assaulted his mother. In this regard, it may be apposite to mention the answer given by the appellant in his cross-examination under section 313, CrPC. 32. It may be noted here that the appellant also tried to make a case that his younger brother Naresh Karmakar assaulted his mother. In this regard, it may be apposite to mention the answer given by the appellant in his cross-examination under section 313, CrPC. In question No. 21, the trial court asked the following question to the appellant, “PW-5 Sri Sankar Chawra, VDP President in his evidence deposed that on 24.12.2015 at about 7 a.m., while he was at this work place, from co- labourers, he came to know that incident of quarrel took place at your, residence. He heard that you cut your parents. What is your say?”, his answer was “Some incident of assault with my parents took place.” In question No. 26, the trial court asked the appellant as follows: “PW-6 also deposed that he has recorded statement of witness at the P.O. From the witnesses, he came to know that you have assaulted your parents, namely, Lakheswar Karmakar and Drupadi Karmakar by sharp object. What is your say?”, The appellant answered as follows: “Some incident of assault took place with my parents.” In Question No. 32, the trial court asked the following question, “PW-6 also deposed that from the CD, it appears that his successor I/O has collected the PM report, SCD from borbori OP, injury report of Lakheswar Karmakar and upon completion of investigation, SI Bhaskar Deogharia has submitted charge sheet against you under section 302/326, IPC. Ext. 6 is the charge sheet. What is your say?” The appellant answered as follows: “I did not kill mother intentionally.” 33. The aforesaid answers given by the appellant to the questions put by the trial court would clearly show that he never denied the assault rather admitted it, but he claimed that he had no intention to kill his mother. However, at the same time, the appellant had tried to put up an alternative scenario for implicating his younger brother Naresh Karmkar, as the provocateur. 34. However, at the same time, the appellant had tried to put up an alternative scenario for implicating his younger brother Naresh Karmkar, as the provocateur. 34. To the Question No. 36 of the trial court as to whether he had anything more to say on the case and the evidence adduced, the appellant answered that because of the cut injury inflicted on his pregnant wife at her abdomen by his brother Naresh Karmakar and seeing blood on her, he had lost control and by taking a dao he went to the house of his parents and started assaulting them. He also stated that, in such a situation, they might have sustained some injuries, I though he did not cause the death of his mother intentionally and it was due to sudden provocation and out of anger. 35. Thus, what the appellant tried to project is that he was provoked on seeing his pregnant wife being assaulted by his younger brother and thereafter, losing his control by taking a dao he went to the house of his parents and assaulted them. 36. We, however, fail to understand if the younger brother of the appellant had caused injury to his pregnant wife and thereby he lost his temper, why the appellant did not assault his younger brother Naresh Karmakar who had assaulted his wife but his parents? 37. On the otherhand, there is evidence on record to show that Naresh Karmakar had taken his wife to the hospital along with his parents which clearly indicates any absence of conflict between his younger brother Naresh and his wife. Though DW-1, Lakhi Karmakar had Stated that Naresh had assaulted her inside her room, she admitted that she was taken to AMGH by Naresh in a vehicle in which her mother-iri-law and father-in-law were also, taken. It defies logic that if it was Naresh who had assaulted the wife of the appellant, there was no reason for Naresh to have cooperated by helping her (Lakhi) to be carried to the hospital/more so, when the parents were grievously injured by the husband of Lakhi. 38. DW-1 (Lakhi), wife of the appellant tried to support her husband, the appellant by stating that after Naresh had assaulted her, she fell down and became senseless. 38. DW-1 (Lakhi), wife of the appellant tried to support her husband, the appellant by stating that after Naresh had assaulted her, she fell down and became senseless. If she became unconscious, it is hard to believe her statement that after she was assaulted by Naresh, her husband went out of her room in search of Naresh and entered his father's room. As to how she could narrate what had happened after she had lost consciousness is hard to believe. In fact, during the cross-examination of the DW-1, the prosecution tried to project that when her husband assaulted his parents, DW-1 went there to stop her husband and in that process she got injury caused by the use of dao by her own husband. Though it was denied by DW-1, it appears to be more plausible in the light of the evidences which have emerged. 39. The fact that DW-1 or any of her relative did not file any case against Naresh for the injuries allegedly caused by Naresh to her also points to the concocting of an alternative scenario by the appellant. In fact, Naresh never caused any injury to DW-1 but she had tried to project that it was Naresh who assaulted her to save her husband. 40. The stand taken by the accused in his answers recorded by the court under section 313, CrPC runs ??? to the aforesaid stand taken by the defence of appellant that it was Naresh who had assaulted his wife. 41. Thus, this court holds that the ??? put through the mouth of the wife of the appellant, DW-1 of her being assaulted by Naresh under the circumstances hardly instills any confidence to be believed. 42. From the above, it is clear that the prosecution has been able to prove the case that it was the appellant who caused the injuries to his mother which led to her death and also caused injuries to his father. As regards injuries which were received by Lakhi, the wife of the appellant, there is no evidence that these were caused by Naresh. 43. The next question which is to be considered, is whether the appellant had the intention to cause death of his mother. As regards injuries which were received by Lakhi, the wife of the appellant, there is no evidence that these were caused by Naresh. 43. The next question which is to be considered, is whether the appellant had the intention to cause death of his mother. It is the plea of the appellant that he had assaulted his parents on being provoked after he was scolded by his parents on being accused by her mother about the missing of Rs. 2,000. It appears that the appellant might not have assaulted his parents if there was no such quarrel. The appellant was staying in the same compound as that of his parents. Thus, it cannot be said with certainty that the appellant had an intention to kill his mother or cause such bodily injury which would cause the death of his mother. As regards intention, it can be ascertained from the immediate or proximate circumstances which led to the incident. It was the case of the prosecution that the appellant had assaulted his parents after being rebuked by his mother regarding missing of Rs. 2,000 and also on being rebuked by his mother that he is not her son. 44. As per the medical evidence, the injuries caused to the deceased mother were responsible for her death. Therefore, we have to examine whether the plea taken by the appellant, in the light of the evidences which had emerged in course of the trial, would entitle the appellant to any of the benefits of the Exceptions mentioned under section 300, IPC so as to convict him under section 304, IPC, rather than under section 302, IPC. 45. Exception 1 as mentioned under section 300, IPC, provides that culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident. The above exception is subject to the following provisos— First, that the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person. Secondly, that the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant. Secondly, that the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant. Thirdly, that the provocation is not given by anything done in the lawful exercise of the right of private defence. 46. The Second Exception provides that culpable homicide is not murder if the offender, in exercise in good faith of the right of private defence or property, exceeds the power given to him by law and causes the death of the person against whom he was exercising such right or defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence. As regards this Exception 2, there must be an assault by the victim to the accused who in self-defence must have acted, which ultimately results in the death of the other person. In the present case, there is no evidence of the victim assaulting the appellant nor such a plea by the appellant and as such, the question of considering this Second Exception by way of self- defence does not arise. 47. The Third Exception relates to when the offender is a public servant. In the present case, the appellant is not public servant and as such, the Third Exception is not attracted. 48. The Fourth Exception provides that 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 taking undue advantage or acted in a cruel or unusual manner. The common thread which runs in Exception 1 and Exception 4 is the loss of self-control due to grave and sudden provocation or sudden quarrel or in the heat of passion upon a sudden quarrel and accordingly, it has to be ascertained whether either of Exception 1 or 4 is attracted in the present case. For this, there must be evidence that there was a quarrel or an incident which led to sudden provocation leading to deprivation of self-control due to his grave and sudden provocation. 49. From the evidence as discussed above, there was certainly a quarrel between the appellant and the appellant's mother because of missing certain amount of money. For this, there must be evidence that there was a quarrel or an incident which led to sudden provocation leading to deprivation of self-control due to his grave and sudden provocation. 49. From the evidence as discussed above, there was certainly a quarrel between the appellant and the appellant's mother because of missing certain amount of money. Even if, it is assumed that the rebuke and scolding of the mother of the appellant led to a sudden quarrel, can it be said that such scolding by the mother was of a grave and sudden provocation? We think not. There is also no reason why the appellant should go armed with dao to rebuke his mother as he claimed. If he brings the dao which is not really needed in a house, for the purpose of rebuking his mother, he certainly cannot invoke any of these Exceptions. If the Exceptions have to be proved in the context of his quarrel with his mother, the appellant has to take specific plea and prove that the dao was lying nearby when the sudden quarrel erupted in a heat of anger out of a sudden provocation, he picked up the dao and assaulted his mother. But such a plea was not taken by the appellant nor there is any such evidence. It is also to be noted that if any assailant seeks the plea of Exceptions under section 300, IPC, the onus is upon him to establish the case, not for the prosecution. But, the appellant has failed to prove existence of such an Exception. 50. On the other hand, in the present case, the prosecution had been able to establish beyond reasonable doubt that the appellant had assaulted his mother with dao which caused grievous injuries. The fact that the appellant had caused not merely one injury but three injuries and these injuries were caused on the vital parts of the body, i.e., near neck would clearly indicate that even if the appellant did not have any intention to kill his mother, he inflicted the injuries, which he knew in ordinary course, would cause death. 51. The fact that the appellant had caused not merely one injury but three injuries and these injuries were caused on the vital parts of the body, i.e., near neck would clearly indicate that even if the appellant did not have any intention to kill his mother, he inflicted the injuries, which he knew in ordinary course, would cause death. 51. Thus, even if, a benefit of doubt given to the appellant that he had no intention to kill his mother, he knew that by assaulting an unarmed woman with a deadly weapon like dao, it was so imminently dangerous that it must in all probability cause death or was likely to cause bodily injury as was likely to cause death. He committed such an act, without any excuse, which caused death as provided under the fourth situation contemplated under section 300, IPC, as such, it will amount to committing a murder, even if, he did not have any premeditated design to kill his mother. 52. As discussed above, his action does not come under any of the Exceptions as contemplated under section 300, IPC so as to render his offence as culpable homicide not amounting to murder, to bring within the scope under section 304, IPC. 53. While coming to our conclusion we have extensively referred to the statements made by the appellant during the examination under section 313, CrPC. Law is well settled as to the use of statement recorded under section 313, CrPC. It is not evidence in the true sense of the term for the reason that while recording statements under section 313, CrPC, the accused does depose as a witness and no oath is administered to him when he is examined under this section. Furthermore, he is also not subjected to cross-examination. In State of Maharashtra v. R.B. Chowdhury, AIR 1968 SC 110 : 1968 Cri LJ 95 (SC) Supreme Court held as follows: “5 No doubt under the Code of Criminal Procedure the statement of an accused may be taken into consideration in an inquiry or trial but it is not strictly evidence in the case. In State of Maharashtra v. R.B. Chowdhury, AIR 1968 SC 110 : 1968 Cri LJ 95 (SC) Supreme Court held as follows: “5 No doubt under the Code of Criminal Procedure the statement of an accused may be taken into consideration in an inquiry or trial but it is not strictly evidence in the case. An accused, when makes his statement under section 342, does not depose as a witness because no oath is administered to him, when he is examined under that section” The object of examination of an accused under section 313, CrPC is to afford him an opportunity to explain the circumstances appearing against him as well as to put forward his defence. However, it has been also settled that if he makes statement supporting the prosecution's case, it can be used against him to corroborating the prosecution case as held in Ramrutresh v. State of Chhattisgarh, AIR 2012 SC 1357 : (2012) 4 SCC 257 . It was held in para 22 in Ramnaresh (supra) as follows: “22. It is a settled principle of law that the obligation to put ??? evidence to the accused under section 313, CrPC is upon the court. One of the main objects of recording of a statement under this provision of the CrPC is to give an opportunity to the accused to explain the circumstances appearing against him as well as to put forward his defence, if the accused so desires. But once he does not avail this opportunity, then consequences in law must follow. Where the accused takes benefit of this opportunity then his statement made under section 313, CrPC insofar as it supports the case of the prosecution, can be used against him for rendering conviction. Even under the latter, he faces the consequences in law.” Thus, the onus of the prosecution to prove the case beyond reasonable doubt remains and never shifts, and any deficiency or lacuna in the evidence of the prosecution case cannot be filled up by the statement made by the accused under section 313, CrPC, and only a part of such statement cannot be made the sole basis of conviction. It can, however, be used to corroborate and bolster the evidence of the prosecution as held in para 27 of Mohan Singh v. Prem Singh, (2002) 10 SCC 236 : AIR 2002 SC 3582 . It can, however, be used to corroborate and bolster the evidence of the prosecution as held in para 27 of Mohan Singh v. Prem Singh, (2002) 10 SCC 236 : AIR 2002 SC 3582 . Relevant part of para 27 of Mohan Singh (supra) reads as follows: “27. The statement made in defence by the accused under section 313, CrPC can certainly be taken aid of to lend credence to the evidence led by the prosecution, but only a part of such statement under section 313 of the Code of Criminal Procedure cannot be made the sole basis of his conviction. The law on the subject is almost settled that statement under section 313, CrPC of the accused can either be relied in whole or in part. It may also be possible to rely on the inculpatory part of his statement if the exculpatory part is found to be false on the basis of the evidence led by the prosecution. See Nishi Kant Jha v. State of Bihar, (1969) 1 SCC 347 : AIR 1969 SC 422 .” 54. Keeping the aforesaid legal position in mind, what we have noted is that the case of the prosecution in brief, is that, the appellant by using a deadly weapon, a dao assaulted his mother and father which resulted in the death of his mother and injury to his father, thereby committing murder of his mother. As regards the death of his mother due to injuries caused by a sharp weapon, it has been clearly established by the medical evidence and corroborated by the statement of the PW-1, the father of the appellant. The evidence of PW-1, as discussed above, had not been shaken the evidence of the use of dao by the appellant, which has also come out clearly through the cross-examination of PW-1. PW-2, though did not see the actual assault, saw the appellant leaving the house soon after the incident of assault occurred, after hearing a hue and cry and leaving with the dao. PW-2, though did not see the actual assault, saw the appellant leaving the house soon after the incident of assault occurred, after hearing a hue and cry and leaving with the dao. Though the defence has tried to discredit the evidence of PW-2 that he saw the appellant going out of his house with the dao during his cross- examination and also by proving the same with the evidence of the I.O. that the PW-2 did not state before him that he had seen the appellant going out of his house with the dao, yet the eye witness account of PW-1 cannot be doubted who was assaulted by the appellant with the dao. The evidence of the prosecution that a dao was used stands corroborated by the statement of the appellant himself made under section 313, CrPC to the effect that he used the dao to assault his parents though he gave a different reason for assaulting his parents. Thus, the assault of the parents and causing grievous injuries to them with the use of the dao which is the case of the prosecution, stands corroborated by the statement of the appellant made under section 313, CrPC.. It is not the case that no evidence was adduced by the prosecution regarding use of dao. It was the case of the prosecution of the use of dao as mentioned above, which stands corroborated by the statement of the appellant made under section 313, CrPC. Accordingly, we are of the view that the prosecution has been able to establish the case against the appellant under section 302, IPC as regards death of his mother and also section 325, IPC as regards the injury caused to his father. Accordingly, for the reasons discussed above, we uphold the conviction of the appellant. 55. As regards the punishment, we find no reason to differ from the quantum of punishment awarded by the trial court. 56. Ms. B. Choudhury, learned amicus curiae, and Ms. B. Sarma, learned Legal Aid Counsel, who have ably assisted this court in conducting this jail appeal, may be given the honorarium at the rate fixed under the Rules. 57. For the reasons discussed above, the appeal is, accordingly, dismissed is disposed of merit.