JUDGMENT : SUMAN SHYAM, J. 1. Heard Ms. Bijita Sarma, learned Amicus Curiae appearing for the appellant. We have also heard Ms. S. Jahan, learned APP, Assam, who has appeared on behalf of the State of Assam. 2. The sole appellant has approached this Court by filing the instant appeal assailing the judgment dated 01/03/2016 passed by the learned Additional Sessions Judge, Sivasagar in Sessions Case No. 240 (S-C)/2012, convicting him under Section 302 of the Indian Penal Code (IPC, for committing the murder of the deceased Nabin Borah and sentencing the appellant to undergo rigorous imprisonment for life and also to pay fine of Rs. 5,000/- with default stipulation. 3. The prosecution case, in a nutshell, is that on 28/03/2012, at around 4-30 p.m., the appellant/accused had hacked the deceased with a ‘dao’ causing grievous injury on his body. Eventually, the victim had succumbed to his injuries. On 28/03/2012, Sri Sikon Bora, (PW-1) had lodged an ejahar before the Officer-in-Charge, Sapekhati Police Station reporting the incident. In the ejahar, the informant had named the appellant as the person responsible for the death of his brother (Nabin). Based on the said ejahar, Sapekhati PS case No. 06/2012 was registered under Section 302 of the IPC. The matter was then entrusted to S.I. Sri Padyut Kumar Dutta (PW-9) for carrying out investigation. 4. On completion of investigation and after collecting evidence, the IO (PW-9) had submitted charge sheet against the accused under section 302 of the IPC. Based on the charge sheet, the learned trial Court had framed charge against the accused /appellant. However, since the accused had pleaded innocence, the matter went up for trial. 5. There is no eye witness in this case and the prosecution case is entirely based on circumstantial evidence. In order to bring home the charge, the prosecution side has examined 9 (nine) witnesses including the doctor (PW-5) who had conducted the postmortem examination on the dead body and the IO (PW-9) who had conducted the investigation and submitted the charge sheet. The case of the accused was one of total denial. On completion of trial, the learned Additional Sessions Judge, Sivasagar, had passed the impugned judgment convicting the appellant under Section 302 of the IPC and sentencing him as aforesaid. 6. Assailing the impugned judgment, Ms. The case of the accused was one of total denial. On completion of trial, the learned Additional Sessions Judge, Sivasagar, had passed the impugned judgment convicting the appellant under Section 302 of the IPC and sentencing him as aforesaid. 6. Assailing the impugned judgment, Ms. Sarma, learned Amicus Curiae has argued that the prosecution has failed to establish the charge brought against the appellant by adducing circumstantial evidence. According to the learned Amicus Curiae, the links in the chain of circumstances has not been established properly, inasmuch as the ‘dao’ seized by the Investigating Officer (IO) has not been linked to the occurrence by obtaining Forensic Science Laboratory (FSL) report and even the wearing apparels (jeans pant) of the accused was not chemically examined so as to ascertain as to whether there was any stain of blood of the victim. 7. Ms. Sarma, learned Amicus Curiae has also argued that the IO has failed to record the statement of many witnesses, more particularly, the persons working in the Church around the time of the incident. She submits that in the ejahar, the informant had initially mentioned that he had learnt that some person had killed his brother but named the appellant only in the subsequent stage. All these lapses, according to Ms. Sarma, amounts to lacuna in the prosecution case, the benefit of which must go in favour of the accused person. On such count, the learned Amicus Curiae has prayed for setting aside the impugned judgment and for acquittal of the appellant of the murder charge. 8. Ms. S. Jahan, learned APP, Assam, on the other hand, has submitted that the evidence on record is sufficient to establish all the links in the chain of circumstances which would clearly go to show that the incident took place on 28/03/2012 at around 4-30 p.m. Ms. Jahan has further argued that from the evidence of PWs. 6, 7 and 8, it is apparent that the appellant and the accused were drinking together on that afternoon and there was an argument between them. Subsequently, the appellant had hacked the deceased and left the body on the road. Thereafter, he had surrendered before the Police with a dao. That being the position, according to the learned APP, there is no scope for this Court to interfere with the impugned judgment. 9. Subsequently, the appellant had hacked the deceased and left the body on the road. Thereafter, he had surrendered before the Police with a dao. That being the position, according to the learned APP, there is no scope for this Court to interfere with the impugned judgment. 9. We have considered the submissions advanced by learned counsel for both the sides and have carefully gone through the materials available on record. 10. From a reading of the impugned judgment, it transpires that the learned Court below had placed heavy reliance on the testimonies of PWs. 6, 7 and 8. PW-6 Sri Dhiren Mankey has deposed that on the day of the incident at about 4 p.m., he and Nabin (deceased) were taking drinks (alcohol) at his house. After sometime, the accused/appellant had also joined them. He also took drinks. At that time, the accused and Nabin (deceased) had an argument over something but he did not know the reason. He had tried to mediate between them and then sent them away. The accused and the deceased left his place but after sometime he had heard hue and cry. When he came out, he saw Nabin was lying dead on the ground. PW-6 has further deposed that he did not see the injuries nor did he see the accused. During cross-examination, the evidence of this witness has remained intact. 11. Sri Minuj Barwa is another person who live in the locality and was known to the accused as well as the deceased. He was examined by the prosecution as PW-7. In his deposition, PW-7 has also stated that the incident took place at around 4 p.m. At that time, he was working in the Church as there was no work in the garden. He had heard hue and cry. The accused was carrying a ‘dao’ and creating a ruckus. He was shouting “come who dares, come.” He had seen the accused going away with the ‘dao’. At that time, he was working in the roof of the Church. He climbed down and saw that Nabin was lying near the road and he had injuries on his head. Blood was everywhere. He felt uneasy and, therefore, left the place and went inside the Church. Later, the Police came and he narrated the incident to the Police. At that time, he was working in the roof of the Church. He climbed down and saw that Nabin was lying near the road and he had injuries on his head. Blood was everywhere. He felt uneasy and, therefore, left the place and went inside the Church. Later, the Police came and he narrated the incident to the Police. PW-7 has further stated that while leaving, the accused had also said that he was going to the Police Station. During his cross examination, PW-7 has admitted that he did not see the incident and that the place of occurrence was about 60 ft away from the Church but he has confirmed that he had seen the dead body on his way home after the work. He could not say who had killed the victim. This witness has also stated that Sylvester and Suresh were working with him on that day. 12. Sri Silvaster Indawar was examined by the prosecution as PW-8. This witness has also stated that the incident took place at about 4 p.m. At that time, they had heard hue and cry near the house of Dhiren Mankey (PW-6) and saw the accused was running towards the Church, holding the blood dripping dao. He had also seen Nabin (deceased) lying on the road with cut injuries in the head. Mathio (accused) told that he would himself surrender. Later he came to know that the deceased had died and the accused went to the Police Station. He, however, did not know as to why the accused had cut the deceased. The testimony of this witness could not be shakened during his cross examination. 13. Dr. Ranjit Gogoi was on duty as the Sub-divisional Medical and Health Officer, Sivasagar Civil Hospital on 29/03/2012 when the dead body was brought there for conducting the post-mortem examination. Dr. Gogoi was examined as PW-5. He has proved the post-mortem report (Ext-4) by identifying his signature. As per the post-mortem report, the following injuries were seen in the dead-body: “Three injuries were detected:- (1) Cut injury in the right calf 15 cm x 5 cm muscle deep injury. (2) Cut injury in the left calf 15 cm x 5 cm. Gogoi was examined as PW-5. He has proved the post-mortem report (Ext-4) by identifying his signature. As per the post-mortem report, the following injuries were seen in the dead-body: “Three injuries were detected:- (1) Cut injury in the right calf 15 cm x 5 cm muscle deep injury. (2) Cut injury in the left calf 15 cm x 5 cm. (3) Two parallel cut injuries across the octipal area, length 20 cm, chips of bones and brain with membrane were missing beneath the wound and in between the wound.” PW-5 has opined that the death was caused due to Coma as a result of injuries sustained. 14. As noted above, PW-9 Sri Pradyut Kumar Dutta had carried out the investigation in this case. At that time, he was serving as Sub-Inspector of Police, Dibrugarh Police Station. PW-9 has deposed that the accused came to the Police Station on the date of the incident at about 5 p.m. with a ‘dao’ and told that he had killed Nabin Borah near Bhugbari Geging Gaon. At that time, he was in the Police Station along with Gautam Dey and Ganesh Deb. He made the GD entry bearing No. 583 dated 28/03/2012 and seized the ‘dao’ and the sky blue pant worn by the accused, in presence of witnesses and thereafter arrested him. After that he had proceeded to the place of occurrence and saw the dead body and also recorded statement of other witnesses. PW-9 has also deposed that Executive Magistrate Javad Arman had conducted the inquest over the dead body, where-after, the same was brought for postmortem examination. According to the IO, FIR was lodged by Sikon Borah (PW-1), based on which, Sapekhati PS case No. 6/2012 was registered. PW-9 has also confirmed that the Ext.-1 was the ejahar and Ext. 3 was the seizure list by means of which the ‘dao’ and the ‘blue pant’ was seized. Ext. -6 is the certified copy of the GD entry which bears his signature and Ext. 7 was the charge sheet submitted in this case. During his cross examination, PW-9 has remained firm by stating that the accused was arrested after the FIR was received and it was the accused who had told him about the incident. 15. Ext. -6 is the certified copy of the GD entry which bears his signature and Ext. 7 was the charge sheet submitted in this case. During his cross examination, PW-9 has remained firm by stating that the accused was arrested after the FIR was received and it was the accused who had told him about the incident. 15. PW-1 Sri Sikon Borah had not seen the occurrence but he has stated that he had seen cut injuries in the back of the head and leg of the deceased. This witness has confirmed that he had lodged the FIR (Ext-1) which was written by Sri Girish Kakoti as per his dictation and Ext. 1(1) is his signature. PW-1 is also an inquest witness and he has proved his signature Ext. 2(1) in the inquest report. 16. Sri Jibo Kanta Borah lives in the same village and is related to the deceased. He was examined as PW-2. This witness has deposed that on the day of the incident he came to know that the deceased had been murdered by the accused. He went to the place of occurrence and saw the dead body. He also saw cut injuries in the back of the head and the leg of the deceased. This witness has further stated that the accused had gone to the Police Station and surrendered with a ‘Naga dao’. He had also told that he had murdered the deceased. 17. PW-3 Sri Ganesh Deb was one of the persons present in the Police Station when the accused had gone there with the ‘dao’. PW-3 has stated that on the day of the incident, at about 5 p.m. he was called by the Officer-in-Charge of the Police Station along with his nephew in connection with another case. When he went to the Police Station, he had seen that the accused had gone there with a ‘dao’ and told the Police that he had hacked someone. At that time, the accused was wearing Jeans Pant. Police seized the dao and the pant by seizure list Ext. 3. Ext. 3(1) is his signature. Material Exhibit-1 was the seized ‘dao’ and Material Exhibit -2 was the Jean Pant, which he had seen in the Court. 18. At that time, the accused was wearing Jeans Pant. Police seized the dao and the pant by seizure list Ext. 3. Ext. 3(1) is his signature. Material Exhibit-1 was the seized ‘dao’ and Material Exhibit -2 was the Jean Pant, which he had seen in the Court. 18. PW-4 Sri Gautam Dey has also stated that on the day of the incident, he had seen the accused in the Police Station at around 5 p.m. when he had gone there with his uncle. The accused had come to the Police Station with a ‘dao’ but he did not hear what the accused told the Police. According to the PW-4, Ext. 3 was the seizure list by means of which the ‘dao’ was seized and Ext. 3(2) was his signature. This witness has also identified M-Ext. 1 the dao which he had seen in the Court. 19. From the bulk of evidence available on record, more particularly, the medical evidence, it is established beyond doubt that the deceased had died a homicidal death due to the deep cut injures sustained on his head. It also transpires from the evidence of PW-6 that on the day of the incident, the deceased and the accused were consuming alcohol around afternoon and it was at that time a quarrel took place between the accused and the deceased. PW-6 has stated that did not know the reason for the quarrel but both of them had left his house together, on that afternoon. 20. From the evidence of PWs-7 & 8 it has been firmly established that the victim was found lying dead on the road in front of the Church with cut injuries on his body and blood was oozing out. Both these witnesses have categorically deposed that when they saw the accused, he was carrying a ‘dao’ and according to PW-8, blood was dripping down the ‘dao’. PW-8 also deposed that the accused told him that he would surrender before the Police. The above evidence of PWs. 7 & 8 finds due corroboration from the testimonies of PWs 3 & 4, who have also deposed that they had seen the accused in the Police Station around 5 p.m. on that evening along with the dao. The IO has also corroborated the above version of the aforesaid witnesses. The above evidence of PWs. 7 & 8 finds due corroboration from the testimonies of PWs 3 & 4, who have also deposed that they had seen the accused in the Police Station around 5 p.m. on that evening along with the dao. The IO has also corroborated the above version of the aforesaid witnesses. From the testimony of these witnesses, it is apparent that the incident took place on 28/03/2012 in between 4-30 and 5 p.m. and after the incident, the accused had surrendered at the Police Station with a ‘dao’ in his hand. The victim was found dead on the road near the house of the PW-6. 21. From the reading of the impugned judgment, we find that the learned trial Court has not discussed about the “last seen together” circumstance which had emerged from the evidence of PW-6. According to this witness, the accused and the deceased had left his house together soon after the quarrel. The dead body of the deceased was found lying on the road with grievous injuries just a few minutes later. Therefore, it can safely be presumed that the ‘last seen together’ circumstance has also been firmly established in this case. Although the learned trial Court did not consider the said aspect of the matter, yet, we are of the opinion that having regard to the evidence available on record, which goes to show that the accused/appellant and the victim were together just before the occurrence, the ‘last seen together’ circumstance would also be an additional link in the chain of circumstances which in our opinion, would lend further credence to the prosecution case. 22. From a careful analysis of the evidence available on record, we are, therefore, of the unhesitant opinion that the prosecution had succeeded in establishing all the links in the chain of circumstances to prove beyond reasonable doubt that on the day of the occurrence, it was none other than the accused/appellant who was responsible for grievously assaulting the deceased leading to his death. 23. Having observed as above, we cannot be oblivious of the evidence available on record, which clearly indicates that soon before the occurrence, the accused and the deceased were not only in a state of inebriation but were also quarrelling over something. Evidence on record suggests that when they left the house of PW-6, the quarrel did not subside completely. 24. Having observed as above, we cannot be oblivious of the evidence available on record, which clearly indicates that soon before the occurrence, the accused and the deceased were not only in a state of inebriation but were also quarrelling over something. Evidence on record suggests that when they left the house of PW-6, the quarrel did not subside completely. 24. Moreover, the accused did not come to the house of the PW-6 with any weapon. The quarrel, according to the PW-6, developed in the course of the drinking session. If that be so, there is reasonable ground to presume that on their way back from the house of PW-6, the quarrel between both the accused and the deceased had revived and it is possible that under the influence of alcohol, passion was triggered whereby, the accused had fatally assaulted the deceased leading to his death. Since the accused did not carry any weapon and there is no evidence to show that he had acted in a cruel manner soon after the incident, we are of the view that it is a case where there was no pre-meditation on the part of the accused and the incident took place under grave and sudden provocation. We are, therefore, of the opinion that the matter would come within the ambit of Explanation I and IV of Section 300 of the IPC. In other words, having regard to the facts of the case as well as the nature of evidence available on record, we are inclined to hold that the incident is the outcome of a quarrel between the accused and the deceased and acting under grave and sudden provocation and under the influence of alcohol, the accused had assaulted the deceased, having lost his sense of self control. 25. For the reasons stated herein above, we set aside the conviction of the accused/appellant under Section 302 of the IPC and convict him under section 304 Part-II of the IPC. The jail sentence awarded to the appellant/accused by the learned Trial Court stands modified to rigorous imprisonment for a period of 10 (ten) years. The fine imposed by the learned Trial Court shall, however, remain unaltered. The period of jail sentence already undergone by the appellant shall accordingly, stand set off. 26. The appeal stands partly allowed. 27. Send back the LCR. 28. The fine imposed by the learned Trial Court shall, however, remain unaltered. The period of jail sentence already undergone by the appellant shall accordingly, stand set off. 26. The appeal stands partly allowed. 27. Send back the LCR. 28. Before parting with the case record, we wish to put our appreciation on record as regards the valuable assistance rendered by Ms. Bijita Sarma, learned Amicus Curiae and recommend that just remuneration, as per the notified rate, be paid to her.