JUDGMENT : ROBIN PHUKAN, J. 1. Judgment and Order dated 16.05.2017, passed by the learned Sessions Judge, Jorhat, in Sessions Case No. 83 (J-J) of 2014, corresponding to Titabar P.S. Case no. 58 of 2014, is impugned in this appeal preferred by the Sri Sankar Pandab, from District Jail, Jorhat. It is to be noted here that vide the impugned judgment and order, dated 16.05.2017, the learned Court below has convicted the appellant under Section 302 of the Indian Penal Code and sentenced him to suffer R.I. for life and also to pay a fine of Rs. 10,000/- (Rupees ten thousand) only with default stipulation. 2. The factual background leading to filing of the present appeal is adumbrated herein below: “On 28.03.2014, at about 6.30 P.M., while deceased Binod Pandab was talking with his wife -Smt. Mamoni Pandab in his house, then the appellant - Shri Shankar Pandab, who happened to be his own son, came there and assaulted him by means of a wooden plank over his head, after an altercation over domestic matters. Then Binod Pandab sustained grievous injuries over his head and fell down on the ground. Immediately thereafter Binod Pandab was taken to Titabar Hospital and from there he was referred to Jorhat Medical College Hospital, as his condition was critical. But, during the course of his treatment in the Jorhat Medical College Hospital, he succumbed to the injuries. On receipt of an F.I.R. to that effect from Smt. Mamoni Pandab, on 29.03.2014, the Officer-In-Charge, Titabar Police Station, registered Titabar P.S. Case No. 58/2014, under Section 302 IPC, and endorsed A.S.I. Kusal Borah and S.I. Likheswar Gogoi to investigate the same. The Investigating Officers (I.O.) then visited the place of occurrence, examined the witnesses, prepared sketch map of the place of occurrence and seized one wooden plank preparing seizure list and held inquest over the dead body of the deceased and got the post-mortem conducted and collected the report. The I.O. also arrested the appellant and forwarded him to the Court. On completion of investigation, the I.O. laid Charge-Sheet against the appellant to stand trial in the Court under Section 302 of the Indian Penal Code. The appellant entered appearance before the Court of learned Sessions Judge, Jorhat. The I.O. also arrested the appellant and forwarded him to the Court. On completion of investigation, the I.O. laid Charge-Sheet against the appellant to stand trial in the Court under Section 302 of the Indian Penal Code. The appellant entered appearance before the Court of learned Sessions Judge, Jorhat. Then, hearing learned Advocates of both sides; the learned Court below had framed charge against the appellant under Section 302 IPC and on being read over the same to him, he pleaded not guilty. The learned Court below then examined as many as 12 (twelve) witnesses, including the Doctor and the I.O. and then closing the prosecution evidence, the learned Court below examined the appellant under Section 313 of the Cr.P.C. and thereafter, hearing arguments of both sides, found the appellant guilty of the charge under Section 302 of the IPC and sentenced him as aforesaid. Being highly aggrieved, the appellant preferred this Appeal from the District Jail, Jorhat.” 3. As this appeal is preferred from jail, Mr. Atal Tewari, learned Advocate, is appointed as Amicus Curiae to assist the court. 4. We have heard Mr. A. Tewari, learned Amicus Curiae for the appellant and Ms. B. Bhuyan, learned Additional Public Prosecutor for the State respondent. We have also perused the record of the learned Court below. 5. Here in this case, the death of Binod Pandab is not disputed. The evidence, so tendered and the documents so exhibited by the prosecution side, more particularly, the F.I.R. & post-mortem report, goes a long way to show that Binod Pandab dies on 28.03.2014, at Jorhat Medical College Hospital, during the course of treatment. Now, let it be seen how the death of Binod Pandab had taken place and whether it was accidental, suicidal or homicidal in nature. 6. First, let the evidence of the Doctor, who conducted autopsy on the dead body of the deceased, be examined. The prosecution side has examined Dr. Saurabh Jyoti Gogoi as PW-12. His evidence reveals that on 23.03.2014, while he was posted as Demonstrator at Assam Medical College & Hospital, Dibrugarh, in the Department of Forensic Medicine, he conducted autopsy on the dead body of Lt. Binod Pandab of Gobindpur Tea Estate, P.S. Titabar, District Jorhat. He found the dead body of a male of average built, swarthy complexion and dressed with full shirt and ganji, half pant with blood stain over his head and face. Binod Pandab of Gobindpur Tea Estate, P.S. Titabar, District Jorhat. He found the dead body of a male of average built, swarthy complexion and dressed with full shirt and ganji, half pant with blood stain over his head and face. He also found the eyes and mouth partly open and rigor-mortis present all over the body, which was cold on touch and also found presence of post-mortem hypostatic fixed at the back of the body. He also found following injuries: (i) Stitch wound of size 6 cm present over skin [stitched by 6 surgical bandage]. (ii) Stitched wound of size 3 cm present over right side of neck 4 cm from midline. (iii) Abrasion of size [6 x 4] cm present over front of chest 10 cm below suprastenal root. (iv) On dissection of scalp contusion of size [6 x 4] cm present over occipital area. Linear fracture of size 8 cm present over left parietal bone horizontally. Upon the above findings, he opined that the cause of death was due to coma, following head injury sustained, which was ante-mortem and caused by blunt force impact. The time since death was approximately 12 to 24 hours. His post-mortem report, Exhibit-5 is also consistent with his evidence. The Inquest Report, which the prosecution side has exhibited as Exhibit-1 also reveals that mark of injury, was found over head and face, and the same also lend assurance to the finding of the Doctor. However, it is elicited in his cross-examination that the injury sustained by the deceased may be caused due to fall on hard substance. 7. Now, it is to be seen how the deceased sustained the aforesaid injuries. The prosecution side has examined as many as 12 (twelve) witnesses here in this case. Out of 12 (twelve) witnesses, PWs-10 and 11 are the two I.Os., namely, A.S.I. Kusal Borah and S.I. Likheswar Gogoi, and PW-12 is the Doctor, whose evidence has already been discussed herein above. Out of the remaining 9 (nine) witnesses, there is no eye witnesses to the occurrence, except however the complainant, Smt. Mamoni Pandab/PW-1. She is the sole eye witness to the occurrence and is the star witness of the prosecution side. The other prosecution witnesses came to know about the occurrence either from the complainant or from other persons. 8. Out of the remaining 9 (nine) witnesses, there is no eye witnesses to the occurrence, except however the complainant, Smt. Mamoni Pandab/PW-1. She is the sole eye witness to the occurrence and is the star witness of the prosecution side. The other prosecution witnesses came to know about the occurrence either from the complainant or from other persons. 8. The evidence of PW-1 reveals that the occurrence took place less than a year ago, at about 6.30 P.M. in her house. At that time, she was talking with her deceased husband, Late Binod Pandab. Then, her stepson, Sri Sankar Pandab/appellant, entered into the house in inebriated condition and thereafter, assaulted her husband with a wooden plank, without a quarrel. Then her husband fell down on the ground. He was taken to Titabar Primary Health Centre and from there to Jorhat Medical College Hospital, where he succumbed to the injuries. Her evidence also reveals that the appellant is the son of the first wife of her husband, who pre-deceased her husband and the appellant used to reside with them. He does not go to his work and he used to consume alcohol. On the day of occurrence also, he was under the influence of liquor. Thereafter, she lodged the F.I.R. with the police and she had put her thumb impression over the same. Her evidence also reveals that she has produced the wooden plank used by the appellant in assaulting her husband. 9. The F.I.R., which the prosecution side has exhibited as Exhibit-4, also lend corroboration to her version in material particulars, wherein, it is stated that on 28.03.2014, at about 6.30 P.M., Sri Sankar Pandab, administered blow over the head of deceased Binod Pandab, with a wooden lathi after altercation over domestic matters. As a result of which, her husband sustained grievous injuries over his head and became unconscious and fell on the ground. Then Sankar Pandab fled away from the house hurriedly. Then she took her husband to Titabar Hospital and from there to Jorhat Medical College Hospital for treatment, where he succumbed to the injuries. 10. The defence side had cross-examined P.W.1 at length and it is elicited that there was no scuffle between her husband and the deceased prior to the incident. However, such a statement is made in the FIR. But we find that she is an illiterate lady, not even capable of reading and writing. 10. The defence side had cross-examined P.W.1 at length and it is elicited that there was no scuffle between her husband and the deceased prior to the incident. However, such a statement is made in the FIR. But we find that she is an illiterate lady, not even capable of reading and writing. And as such corroboration, to the extent of mathematical niceties, cannot be expected from her. The First Information Report(FIR) was not written by her, however, it was written at her behest. Such a contradiction, to our considered opinion; spell no inveracity to her evidence. The probative value of her evidence, thus, could not be shaken in cross. She remained firmed in her cross-examination and her version that the appellant had assaulted her husband with one wooden plank, remained unrebutted. 11. It is to be noted here that the I.O. (P.W.10), during investigation had seized the wooden plank vide Seizure List, Exhibit-2, from the place of occurrence, on 28.03.2014. The factum of seizure also lends corroboration to her version. Thus, having appreciated, analyzed and assessed her evidence with the yardstick of probabilities, its intrinsic worth and the animus of the witness we find that her evidence withstand the test. We find no ground to disbelieve the same. 12. The evidence of rest of the prosecution witnesses i.e. P.Ws. 2, 3, 4, 5, 6, 7 and 8 are hearsay. However, the evidence of P.Ws. 2, 3, and 4, assumes some significance as they came to know about the occurrence from P.W.1. Shri Dhiren Gowala, (P.W. 2) is the neighbour of P.W.1. His evidence also reveals that less than a year ago, at about 6.30 P.M. in the evening, while he was in his house, he heard hue and cry in the house of the appellant and immediately he rushed there and found one Ambulance and Police there, and then Police asked him to keep the injured in the Ambulance and accordingly, he did the same. Then, on being asked, Smt. Mamoni Pandab, told him that the appellant entered into her house in an inebriated state, and thereafter, assaulted her husband with one wooden plank and as a result, her husband fell down on the ground. He also found the appellant there. He then accompanied the inured to the Hospital, who succumbed to the injuries at Jorhat Medical College Hospital. He also found the appellant there. He then accompanied the inured to the Hospital, who succumbed to the injuries at Jorhat Medical College Hospital. The defence side could elicit nothing tangible in the cross-examination to discredit his evidence. 13. The evidence of PW-3, Shri Sanjib Pandab, also reveals that less than a year ago, PW-2, Mr. Dhiren Gowala, rang up him at about 9.30 P.M., and informed him that a quarrel took place between the appellant and his father and he is waiting at Jorhat Medical College Hospital, where the father of the appellant was admitted. On the next day, he found PW-2, Mr. Dhiren Gowala, at Jorhat Medical College Hospital, who requested him to give some money for post-mortem examination of the deceased and he found P.W.1 there, who told him that the appellant had assaulted his father with a wooden battam. It is elicited in his cross-examination that there was cordial relation between the appellant and his stepmother. 14. Shri Prabin Pandab (P.W.4) is also a neighbour of the complainant. He deposed that less than a year ago, while he saw many people gathering in the residence of the appellant, he went there and found 108 Ambulance and met the P.W.1 there. Then P.W.1 disclosed before him that the appellant had assaulted his father with the help of a wooden battam. He then noticed injury over the head of the injured, who was unconscious at that time and there was bleeding from his head and mouth. 15. The evidence of Shri Junas Tanti (P.W.9) reveals that he came to know about the incident from Sri Dhiren Gowala that the appellant had murdered his own father. He then visited the house of the appellant and he found the injured over the lap of his wife. Though hearsay, to some extent, reliance can be placed upon the same, as Shri Diren Gowala is examined here in this case as witness and as the same is consistent with the version of Dhiren Gowala. 16. The evidence of rest of the prosecution witnesses, i.e. P.Ws. 5, 6, 7, and 8, could not be relied on as the person from whom they came to know about the occurrence, have been examined here in this case as witness. 16. The evidence of rest of the prosecution witnesses, i.e. P.Ws. 5, 6, 7, and 8, could not be relied on as the person from whom they came to know about the occurrence, have been examined here in this case as witness. PW-5, Sri Ram Chandra Boraik, came to know from his wife, Smt. Jaymati Boraik, that the appellant committed murder of his own father and thereafter absconded from the house. But, Smt. Jaymati Boraik has not been examined herein as witness. 17. PW-6, Sri Dinaram Orang, is a neighbor of the appellant, and he came to know from the villagers that the appellant had killed his father. He then went to the house of the appellant and found the appellant absconding from his house and he was found hiding in the house of his uncle. The prosecution side has not examined any of the villagers from whom P.W.6 came to know about the occurrence. 18. PW-7, Sri Lohit Tanti Kheria, came to know the incident from his family members that the appellant had killed his father and his family members came to know about the same from the mother of the appellant, who told that her son had killed his father. But, none of his family members have been examined here in this case as witness. 19. PW-8, Sri Biswajit Kumar, also heard about the incident from the villagers that the appellant had murdered one person, namely, Gandhi. But, he could name the villagers from whom he heard the same. 20. Thus, we find that the evidence of PW-2 -Mr. Dhiren Gowala, PW-3 -Mr. Sanjib Pandab, PW-4 -Mr. Prabin Pandab, and P.W. 9- Mr. Junas Tanti, lend ample corroboration to the version of PW-1. The evidence of P.W.-1, PW-2, PW-3, PW-4 and P.W.9, coupled with the evidence of Doctor (P.W.12) and of the I.O. which goes a long way to establish beyond all reasonable doubt that the deceased Binod Pandav suffered homicidal death, on account of the injuries sustained by him. It is also established beyond all reasonable doubt that it is the appellant, who caused the injuries to deceased Binod Pandav. 21. Now, let it be seen whether it would come under any of the exceptions mentioned in Section 300 of the Indian Penal Code. It is to be mentioned here that Section 300 of the Indian Penal Code provides for 5 (five) exceptions. 21. Now, let it be seen whether it would come under any of the exceptions mentioned in Section 300 of the Indian Penal Code. It is to be mentioned here that Section 300 of the Indian Penal Code provides for 5 (five) exceptions. As far as these exceptions are concerned culpable homicide is not murder- (i) 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, (Exception 1); (ii) if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence, (Exception 2); (iii) if the offender, being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without ill-will towards the person whose death is caused, (Exception 3); (iv) 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 or acted in a cruel or unusual manner, (Exception 4); (v) when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent, (Exception 5). 22. Now, turning to the facts and circumstances here in this case, we find that the action of the appellant, i.e. causing injuries on the person of the deceased, does not come under any of the exceptions mentioned herein above. There is nothing in the record to show that the appellant had assaulted his father being deprived of the power of self-control by grave and sudden provocation. There is also nothing on the record to show that he caused the injuries on good faith of exercising the right of private defence. There is nothing in the record to show that the appellant had assaulted his father being deprived of the power of self-control by grave and sudden provocation. There is also nothing on the record to show that he caused the injuries on good faith of exercising the right of private defence. He is neither a public servant, acting for the advancement of public justice, exceeds the powers given to him by law, and caused death to his father, nor there is evidence on the record to show that there was sudden fight and without a premeditation, and in the heat of passion, upon a sudden quarrel, he caused death of his father. There is also no material to suggest that the deceased has consented to cause his death by the appellant. 23. However, Mr. Tewari, the learned Amicus Curiae, while conceding the death caused by the appellant to his father, relying on 2 (two) judgments of Hon’ble Supreme Court in Gurmukh Singh Vs. State of Haryana, (2009) 6 Supreme 409 and Lavghanbai Devjibai Vasava Vs. State of Gujarat, (2018) 0 Supreme (SC) 506, argued that there was sudden fight between the appellant and his father and being deprived of his self control, he assaulted his father and as a result of which, he sustained injuries and succumbed to the same. Mr. Tewari further submits that the appellant had not carried the wooden battam with him and it was available at the place of occurrence itself and he administered only one single blow and as such, the case would squarely come under Section 302 Part II of the Indian Penal Code, not under Section 302 of the Indian Penal Code. Mr. Tewari, therefore contended to modify conviction and sentence under section 302 IPC to section 304(II) IPC. 24. But, Ms. Barnali Bhuyan, the learned Addl. P.P. has vehemently opposed the contentions of Mr.Tewari, and submitted that this is a clear case of 302 Indian Penal Code, and it never falls under any of the exceptions of section 300 Indian Penal Code, and therefore, Ms. Bhuyan has contended to upheld the conviction and sentence so handed down by the learned court below. 25. We have considered the submissions made at the Bar and also we have carefully gone through the case laws referred by the learned Amicus Curie. Bhuyan has contended to upheld the conviction and sentence so handed down by the learned court below. 25. We have considered the submissions made at the Bar and also we have carefully gone through the case laws referred by the learned Amicus Curie. And we find that in the case of Gurmukh Singh (supra), admittedly the incident happened at the spur of moment and there was a single lathi blow on the head of the deceased, which proved to be fatal. But, in the case in hand the deceased sustained as many as 4 (four) injuries on his person. Thus, we find that the factual matrixes of the case in hand are quite different from the facts and circumstances of the aforesaid case. 26. In the case of Lavghanbai Devjibai Vasava (supra), Hon’ble Supreme Court, discussing one of its previous case, i.e. Dhirendra Kumar Vs. State of Uttarakhand, (2015) 3 SCALE 30 , held that the case of the appellant of that case comes under Section 304 of the Indian Penal Code. In the case of Dhirendra Kumar (supra), Hon’ble Supreme Court laid down the parameters, which are to be taken into consideration while deciding the question as to whether the case falls under Section 302 or 304 of the Indian Penal Code, as under: (a) The circumstances in which the incident took place; (b) The nature of weapon used; (c) Whether the weapon was carried or was taken from the spot; (d) Whether the assault was aimed on vital part of the body; (e) The amount of the force used; (f) Whether the deceased participated in the sudden fight; (g) Whether there was any previous enmity; (h) Whether there was any sudden provocation; (i) Whether the attack was in the heat of passion; (j) Whether the person inflicting the injury took any undue advantage or acted in the cruel or unusual manner. 27. Now, turning to the facts and circumstances of the case in hand, we find that the learned Amicus Curie has not been able to show that the above parameters have been satisfied, so as to take the prosecution case out of the purview of Section 302 of the Indian Penal Code. 27. Now, turning to the facts and circumstances of the case in hand, we find that the learned Amicus Curie has not been able to show that the above parameters have been satisfied, so as to take the prosecution case out of the purview of Section 302 of the Indian Penal Code. It is to be noted here that at the relevant time of occurrence, the appellant was in inebriated condition and without any provocation and without any sudden fight, all of a sudden, he assaulted his father over his head by means of a wooden battam. The injury was caused over the vital part of the body, i.e. ‘head’. The medical evidence reveals that membrane was congested and diffused subdural hemorrhage was found over both cerebral hemispheres. The brain was congested and on dissection of scalp, contusion of size (6 x 4) cm was found over occipital area and linear fracture of size 8 cm was found over left parietal bone horizontally. 28. Thus, we find that there was element of premeditation in the action of the appellant. His intention, however, could not be inferred from the facts and circumstances on the record. But, he had the knowledge that if a person is assaulted over his head by means of a wooden battam, it would cause grievous injuries leading to his death. Thus, the case would squarely come under clause ‘Thirdly’ of Section 300 of the Indian Penal Code. Thus, we find that it is a clear case of culpable homicide amounting to murder. Therefore, we are unable to record our concurrence with the submissions of the learned Amicus Curie, and the case laws referred by him would not come into his aid. 29. We have also carefully gone through the judgment of the learned Court below and we find that the learned court below has convicted the appellant on the basis of the evidence of the eye witness, i.e. PW-1, and also on the basis of some circumstantial evidence. It has culled out as many as 10 circumstances from the evidence of the prosecution witnesses. But, having gone through the same, we find that the circumstances, so relied on by the learned Court below are not sufficient so as to form a complete chain. It has culled out as many as 10 circumstances from the evidence of the prosecution witnesses. But, having gone through the same, we find that the circumstances, so relied on by the learned Court below are not sufficient so as to form a complete chain. But, we find that the learned court below has rightly relied upon the evidence of P.W.1, and we have already discussed and held that the evidence of PW-1 is trustworthy and the same able to inspire the confidence of this Court. The learned Court below, thus, rightly convicted the appellant under Section 302 of the Indian Penal Code and sentenced him to suffer R.I. for life and also to pay a fine of Rs. 10,000/- (Rupees ten thousand) only in default to suffer R.I. for another 6 (six) months. 30. However, while affirming the conviction and sentence of the appellant, so handed down by the learned court below, we find that the sentence of fine of Rs. 10,000/- (Rupees ten thousand) is excessive. The appellant is an unemployed person and belongs to lower echelon of the society. Under the above facts and circumstances, we find that sentencing the appellant to pay a fine of Rs. 1,000/- (Rupees one thousand) only, in default to suffer R.I. for another 1 (one) month, will advance the cause of justice. Accordingly, the sentence of fine is modified to the extent indicated above. 31. In the result, we find no merit in this appeal, and accordingly, the same stands dismissed. However, the sentence fine stands modified to the extent indicated above. We sincerely acknowledge the service rendered by Mr. Tewari, the learned Amicus Curie. The Registry shall pay the remuneration to him as per his entitlement, on production of copy of this judgment and order. Send down the record of the learned court below immediately with a copy of this judgment.