JUDGMENT : Suman Shyam, J 1. Heard Mr. A. Ahmed, learned Amicus Curiae, appearing for the appellant. Also heard Ms. S. Jahan, learned APP, Assam, appearing for the State. 2. This appeal from jail is directed against the judgement and order dated 24/09/2019 passed by the learned Sessions Judge, Jorhat, in connection with sessions case No. 132(J-M)/2018, whereby, the sole appellant Kolamanu Doley has been convicted under Section 302 of the Indian Penal Code (IPC) for committing the murder of his elder brother Dharmen Doley and sentenced to undergo rigorous imprisonment for life and also to pay fine of Rs. 10,000/-with default stipulation. 3. The prosecution case, as unfolded from the materials available on record, is to the effect that on 22/05/2015, the wife of the deceased viz. Smt. Rekha Doley had lodged an ejahar before the Officer-in-Charge of Jengraimukh Police Station, informing that at around 8 p.m. on the previous day i.e. 21/05/2018, her husband Dharmen Doley was engaged in an altercation with his younger brother i.e. the appellant over some domestic matter. As a result of the quarrel, the appellant had hacked on the right hand of the victim with a ‘dao’. Although the victim was rushed to Dhakuakhana Hospital at around 12 a.m., he succumbed to his injuries. 4. Based on the ejahar dated 22/05/2015, a GD entry bearing no. 303 dated 22/05/2018 pertaining to the Nayabazar P.P. was made on 22/05/2018 and the ejahar was forwarded to the Jengraimukh Police Station and Jengraimukh PS case No. 16/2018 was registered under Section 302 of the IPC. The matter was then taken up for investigation by the Police. On completion of the investigation, the Police had submitted charge sheet against the sole appellant under Section 302 of the IPC. Based on the charge sheet, the learned trial Court had framed the charge under Section 302 of the IPC against the appellant/accused. However, the charge on being read over and explained to him, the appellant had pleaded innocence and hence, he was subjected to trial. 5. The prosecution case was based on the testimony of one eye witness i.e. the PW-1 and the informant in this case Smt. Rekha Doley, who is also the wife of the deceased. However, the charge on being read over and explained to him, the appellant had pleaded innocence and hence, he was subjected to trial. 5. The prosecution case was based on the testimony of one eye witness i.e. the PW-1 and the informant in this case Smt. Rekha Doley, who is also the wife of the deceased. Apart from the above, the prosecution had examined as many as 9(nine) other witnesses including the doctor (PW-9), who had conducted the post-mortem examination over the dead body as well as the IO (PW-10), who had conducted the investigation in connection with Jengraimukh PS case No. 16/2018 and submitted charge sheet. 6. After recording the evidence of the prosecution side, the statement of the accused/appellant was also recorded under Section 313 of the Cr.P.C. whereby he had denied all the incriminating circumstances put to him. The accused/appellant had, however, declined the offer to adduce evidence in his defence. On conclusion of trial, the learned trial Court has held that the charge brought against the appellant under Section 302 of the IPC was established beyond reasonable doubt. Consequently, the appellant was convicted under Section 302 IPC and sentenced in the manner stated above. 7. By referring to the materials available on record, Mr. Ahmed, learned Amicus Curiae, appearing in this case, has submitted that although there is no scope in this case to argue for acquittal of the appellant, yet, going by the materials available on record, it is a clear that there was no intention on the part of the accused/appellant to cause death to the victim. According to Mr. Ahmed, it is a case of single blow in the arm of the victim and he died due to “coma” on account of excessive bleeding. According to Mr. Ahmed, the medical evidence brought on record does not conclusively establish that the death of the victim was due to bodily injury sustained by him, as inflicted by the appellant, which was sufficient in the ordinary course of nature to cause death. Mr. Ahmed, therefore, argue that unless the aforesaid aspect of the matter is proved on the basis of cogent evidence brought on record, the “third condition” of Section 300 of the IPC would not be satisfied. Under the circumstances, submits Mr. Ahmed, the appellant could not have been convicted under Section 302 IPC. Mr. Ahmed, therefore, argue that unless the aforesaid aspect of the matter is proved on the basis of cogent evidence brought on record, the “third condition” of Section 300 of the IPC would not be satisfied. Under the circumstances, submits Mr. Ahmed, the appellant could not have been convicted under Section 302 IPC. Rather, this is a case where the appellant/accused could, at best, be convicted under Section 304 Part-II of the IPC as he did not have the intention to kill the victim. In support of his above argument, Mr. Ahmed has placed reliance on a decision of the Supreme Court rendered in the case of Virsa Singh Vs. State of Punjab reported in AIR 1958 SC 465 . 8. Responding to the above, Ms. S. Jahan, learned APP, Assam, has argued that although the evidence on record clearly establishes the fact that it was none other than the accused /appellant, who had inflicted grievous injury on the body of the victim leading to his death, yet, in view of the fact that it is a case of single injury and the blow was struck on the arm of the deceased, it could be a case of culpable homicide not amounting to murder. Ms. Jahan has fairly submitted that on an objective assessment of the evidence available on record, it appears that there was no intention to cause death of the victim and hence, this could be a case for conviction of either under section 326 IPC under Section 304 Part-II of IPC. 9. We have considered the submissions made by the learned counsel for both the sides and have also carefully gone through the evidence available on record. 10. As noted above, the wife of the victim Smt. Rekha Doley is the informant in this case. She was examined as PW-1. This witness has deposed before the Court that the victim was her husband and the appellant/accused is the younger brother of her husband. At the time of the incident, she was watching Television with her husband inside the house. Smt. Rajeswari Doley came to their house and she was also watching Television. At that time, the accused had entered the room and told them to give him some space. Her deceased husband was holding the remote control of the TV. The accused cut the right hand of her husband. Smt. Rajeswari Doley came to their house and she was also watching Television. At that time, the accused had entered the room and told them to give him some space. Her deceased husband was holding the remote control of the TV. The accused cut the right hand of her husband. She immediately caught hold of her husband so as to save him from further assault. The PW1 has stated that the accused fled the scene and she had taken her husband to the Dhakuakhana Hospital for treatment but he succumbed to his injuries on the way to the hospital. It has also come out from the testimony of PW-1 that on the date of the incident, her father-in-law, who was suffering from some illness, had given Rs. 65,000/-to her deceased husband, which he got after selling a pair of buffaloes. The amount was meant to be kept by the deceased for the purpose of treatment of her father-in-law but the accused wanted the amount to purchase a motor bike. The witness has also confirmed that she had lodged the ejahar (Ext. 1) before the Police and proved the FIR (Ext.1) by identifying her signature. During her cross examination, the PW-1 could not be shakened. 11. PW-2 Smt. Rajeswari Doley did not stand by her statement earlier recorded before the IO nor did she support the prosecution case as a result of which, she was declared as a hostile witness. Similar is the case with PW-4 and PW-5 viz. Sri Bapukan Doley and Sri Majit Doley. Although they have denied having made any statement before the IO, the fact that these witnesses had recorded their statement before the IO, has been proved through PW-10 Sri Nilamoni Nath, who is the IO in this case. However, all these three witnesses had resiled from their statement, as a result of which, they had been declared as hostile witnesses. What is significant to note herein is that the two witnesses i.e. PWs 4 and 5 did not see the occurrence but had only heard about the same from other persons. Therefore, their evidence, even if adduced in the line of the statement made before the IO, could at best be of hearsay value. What is significant to note herein is that the two witnesses i.e. PWs 4 and 5 did not see the occurrence but had only heard about the same from other persons. Therefore, their evidence, even if adduced in the line of the statement made before the IO, could at best be of hearsay value. However, the PW-2, who according to the PW-1, was present at the place of occurrence at the time of the incident, apparently was an eye witness but she did not support the prosecution case. 12. Sri Phukand Doley (PW-3) was known to the deceased and he has deposed before the Court by stating that he came to know from the wife of the deceased that the accused had killed him. PW-6 Sri Bishal Doley is a seizure witness of Ext. 2, by means of which the iron (saw) used by the accused in assaulting the victim was seized by the IO. 13. PW-7 Sri Dharmen Pegu, appears to be related to the victim. He has deposed that on the date of the incident after hearing a hue and cry, he went to the residence of the deceased. He then took the injured to the hospital in an Ambulance but the victim had succumbed to his injuries in the hospital. When he had met the deceased, he was not in a position to speak. He had heard that the accused had killed the deceased. 14. PW-8 is another seizure witness of Ext. 2. His evidence is otherwise not of much significance in this case. 15. Dr. Vikramjit Borah (PW-9) had conducted the post-mortem examination on the dead body of the deceased Dharmen Doley on 22.05.2018. He has proved the post-mortem report (Ext. 3) by identifying his signature therein. The doctor has deposed that there was a deep cut injury over the right arm of the deceased involving the major vassels. PW-9 has opined that the death was due to coma as a result of shock caused by uncontrollable bleeding from the ante mortem injury of the deceased. 16. At the time of the incident, Pw-10 Sri Nilamoni Nath was posted as In-charge of Noyabazar Petrol Post. PW-9 has opined that the death was due to coma as a result of shock caused by uncontrollable bleeding from the ante mortem injury of the deceased. 16. At the time of the incident, Pw-10 Sri Nilamoni Nath was posted as In-charge of Noyabazar Petrol Post. In connection of the Jengraimukh PS case No. 16/2018 PW-10 has deposed that on receiving the written ejahar from the informant Smt. Rekha Doley, GD entry No. 303/2018 was made by him and the ejahar was forwarded to the Officer-in-Charge of Jengraimukh Police Station for registration of the same. The IO has also deposed that upon receipt of the ejahar, he went to the place of occurrence, prepared sketch map, interrogated the witnesses, took the dead body to Garmur Civil Hospital. According to the IO, the inquest on the dead body was conducted by Executive Magistrate in the Garmur Civil Hospital. The dead body was sent for post-mortem examination. After completing the investigation and collecting the materials, charge sheet was submitted against the accused person on 31/05/2018. The IO has proved the charge sheet Ext. 5 by identifying his signature thereon. PW-10 has also brought on record the statements made by three hostile witnesses viz. PWs2, 4 and 5 before him. During his cross examination, PW-10 has stated that he did not seize the ‘dao’ which was mentioned in the ejahar nor did he sent the said ‘dao’ to the Forensic Science Laboratory. 17. From the evidence of PW-9, the doctor, who had conducted the post-mortem examination as well as the post-mortem report Ext. 3, homicidal death of the victim is well established. The victim had evidently died on account of excessive bleeding due to the grievous injuries caused on his arm by sharp cutting weapon. 18. From the evidence of PW-1, it is apparent that she had seen the occurrence. Her testimony is not only consistent with the facts and circumstances of the case but is also free from contradictions. We find that this witness is trustworthy and her evidence has been rightly relied upon by the learned trial Court. From the testimony of PW-1, it is firmly established that on the date of the incident, the accused/appellant had come to the house where the victim was staying with his family and thereafter, inflicted grievous injury on the hand of the deceased by a sharp cutting weapon. From the testimony of PW-1, it is firmly established that on the date of the incident, the accused/appellant had come to the house where the victim was staying with his family and thereafter, inflicted grievous injury on the hand of the deceased by a sharp cutting weapon. Although the PW-1 has not mentioned about any altercation preceding the occurrence, yet, we find that in the ejahar lodged by her on the next day of the occurrence, it has been clearly mentioned that there was an altercation between the accused and the victim just before the occurrence. 19. The IO (PW-10) has also deposed that the accused was arrested on 25/05/2018 in course of investigation. We also find that the PW-10 has deposed as regards the various steps taken by him during the course of investigation in connection with Jengraimukh PS case No. 16/2018 which included the recording of statement of witnesses and also collection of postmortem examination report before submitting charge-sheet. 20. From an analysis of the evidence available on record, we are of the unhesitant opinion that it was none other than the accused/appellant who had inflicted grievous injury on the arm of the victim which ultimately led to his death. 21. Having held as above, the only question that would now arise for decision in this case, in our opinion, is as to whether, this case would come within the fold of any of the exception to Section 300 of the IPC. 22. As mentioned above, this is a case of single blow inflicted by the accused upon the victim. The blow was dealt on the arm of the deceased, which is not the vital part of the body. Therefore, it is doubtful as to whether there was any intention to cause death of the deceased. The evidence available on record, more particularly, the post-mortem report and the testimony of PW-9 also does not shed any light as to whether, the injury suffered by the victim was sufficient to cause death in ordinary course of nature. 23. In the case of Virsa Singh(Supra), relied upon by Mr. Ahmed, the issue was as to whether, there was intention to inflict injury which was sufficient to cause death in the ordinary course of nature. The relevant observations made by the Apex Court, as evident from paragraphs 14 to 19, are reproduced herein below for ready reference : “14. 23. In the case of Virsa Singh(Supra), relied upon by Mr. Ahmed, the issue was as to whether, there was intention to inflict injury which was sufficient to cause death in the ordinary course of nature. The relevant observations made by the Apex Court, as evident from paragraphs 14 to 19, are reproduced herein below for ready reference : “14. To put it shortly, the prosecution must prove the following facts before it can bring a case under S. 300 "thirdly". 15. First, it must establish, quite objectively, that a bodily injury is present. 16. Secondly, the nature of the injury must be proved; These are purely objective investigations. 17. Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional or that some other kind of injury was intended. 18 Once these three elements are proved to be present, the enquiry proceeds further and. 19 Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender.” 24. Applying the test laid down in the case of Virsa Singh (Supra) to the facts of this case, we find that although it is well established that the appellant/accused had inflicted injury on the victim on his arm with a sharp weapon, yet, the evidence on record is insufficient to conclude that the said injury was sufficient to cause death of the victim in ordinary course of nature. As such, we are of the view that the fourth test laid down in the case of Virsa Singh (Supra) is not satisfied in this case. 25. We also find from the materials on record that the incident took place at around 8 p.m. and the victim was brought to the hospital at around 12 a.m. i.e. after a delay of about 4 hours. In the meantime, the deceased had suffered heavy bleeding. 25. We also find from the materials on record that the incident took place at around 8 p.m. and the victim was brought to the hospital at around 12 a.m. i.e. after a delay of about 4 hours. In the meantime, the deceased had suffered heavy bleeding. From an objective assessment of the facts and circumstances of the case as well as the evidence available on record, it would not be out of place for us to presume that had the victim been rushed to the hospital earlier and given better medical treatment, then perhaps his life could have been saved. Under the circumstances, we find force in the submission of Mr. Ahmed that it is a fit case to hold that there was no intention to cause death and therefore, a good is case is made out where the conviction of the appellant under Section 302 IPC deserves to be converted to one under section 304 Part-II of the IPC. 26. We, accordingly, set aside the conviction of the appellant under Section 302 IPC and convict him under Section 304 Part-II of the IPC. The sentence awarded by the learned trial Court shall stand modified to 8 (eight) years of rigorous imprisonment, which period would, however, be adjusted against the period already undergone. The fine imposed by the learned trial Court shall remain unaltered. 27. The appeal stands allowed in part. Send back the LCR. Before parting with the case record, we wish to put our appreciation on record as regards the valuable assistance rendered by Mr. A. Ahmed, learned Amicus Curiae and recommend that just remuneration, as per the notified rate, be paid to him.