JUDGMENT : A.M. Bujor Barua, J. Heard Mr. A. Dhar, learned Amicus Curiae for the accused/appellant and Ms. B. Bhuyan, learned Additional Public Prosecutor for the State of Assam assisted by Mr. J. Das, learned counsel. 2. This is an appeal filed by the accused/appellant against the judgment and order dated 07.03.2019 in Sessions Case No. 123(S-N) of 2018 of the learned Sessions Judge, Sivasagar, whereby the accused/appellant was convicted under Section 302 of the Indian Penal Code (in short IPC) and sentenced him to undergo rigorous imprisonment for life and also to pay a fine of Rs. 1000/- (one thousand) and in default of payment of fine, further simple imprisonment of 01(one) month. Being aggrieved, this appeal is preferred by the accused/appellant from jail. 3. The prosecution case in brief is that an oral information was lodged before the in-charge of Lakuwa police outpost on 12.08.2018 by the informant Debo Bakti inter-alia stating that at about 4.00 p.m., his son Puna Bakti had hacked his youngest son to death with a dao. The information also contained that an altercation had taken place over some issues of family property following which the death was caused. 4. Upon investigation, the charge-sheet was submitted and the accused/appellant was charged that on 12.08.2018 at about 4.00 p.m., he had committed murder by causing death of his youngest brother Tukheswar Bakti of Nahorhabi Tea Estate under Simaluguri Police Station and thereby committed the offence punishable under Section 302 of the IPC. 5. In course of the trial, the informant Debo Bakti as PW-1 in his deposition stated that on 12.08.2018 in the evening hours, his daughters Sunu Bakti and Champa Bakti came to him while he was grazing cows inside the bagan and informed that the accused/appellant Puna Bakti had killed his younger brother by cutting with one Kalam Katari (dao) on the road in-front of their house. It is deposed that his daughters informed him that there was a quarrel between the two brothers and in course of the quarrel, the accused/appellant Puna Bakti had killed the deceased Tukheswar Bakti. When he returned back home, he saw the dead-body of his younger son Tukheswar Bakti was lying on the side of the road adjacent to the courtyard with cut injuries on his neck. When he returned back home, he saw the dead-body of his younger son Tukheswar Bakti was lying on the side of the road adjacent to the courtyard with cut injuries on his neck. Upon seeing the dead-body, the PW-1 along with his daughters and wife Kalawati went to the Lakuwa police outpost and informed the matter. He also stated that the accused/appellant Puna Bakti lived in a separate house near his house. In cross examination, PW-1 admitted that he had not seen the incident of assault by the accused/appellant upon the deceased. 6. PW-2 Champa Mura, who is the elder daughter of the informant in her deposition stated that on 12.08.2018 at about 4. 00 p.m., while she returned from the market along with her 10(ten) years old daughter after purchasing chicken and reached in front of her parental house, she saw that the accused/appellant Puna Bakti was quarreling with the deceased Tukheswar Bakti and after some moment, the accused/appellant Puna Bakti inflicted a dao blow with one Kalan Katari dao on the neck and abdomen of the deceased Tukheswar Bakti. The witness also stated that the accused/appellant Puna Bakti also gave dao blows on the face and leg of the deceased Tukheswar Bakti. The witness further stated that upon getting the cut injury, the deceased Tukheswar Bakti fell down and died and that her sister Sunu Bakti was also an eye witness to the incident. In cross examination, PW-2 stated that it is not a fact that it was not stated before the police that the accused/appellant Puna Bakti caused cut injuries in the abdomen, face and leg of the deceased Tukheswar Bakti. PW-2 also stated in her cross examination that the accused/appellant Puna Bakti and deceased Tukheswar Bakti were engaged in a scuffle between them and initially both of them fell down on the road. 7. PW-3 Sunu Bakti, who is the other daughter of the informant Debu Bakti, in her deposition stated that on 12.08.2018 at about 4.00 p.m. while she was at her residence, an objection was raised by the deceased Tukheswar Bakti upon certain plantations being made by the accused/appellant Puna Bakti over the land of the deceased and upon such objection, there was a quarrel between the accused/appellant Puna Bakti and the deceased Tukheswar Bakti. After hearing hue and cry, she came out of her house and after some moment, she saw the accused/appellant Puna Bakti had inflicted dao blows with one Kalan Katari dao on the neck and abdomen on the deceased Tukheswar Bakti. The incident happened in front of their house. After getting the cut injury, the deceased Tukheswar Bakti fell down and died and after the incident, the accused/appellant Puna Bakti had left the place. In cross examination, the witness stated that both the accused/appellant and the deceased had a scuffle and fell down on the road and quarrel had started because of the objection raised by the deceased with regard to certain plantations being made by the accused/appellant. PW-3 further stated in her cross examination that she had not stated that the accused had given cut injury in the abdomen and neck of the deceased. 8. PW-4 Dr. Pradip Mili who had conducted the post-mortem examination on the deceased Tukheswar Bakti had described the wounds to be a transversely placed sharp cutting wound over the lower part of the back of the neck size 4” x 1” x 2”, transecting the trachea and oesophagus and its underling vessels and tissues. No other injury is stated by the doctor conducting the post-mortem examination. 9. PW-5 and PW-6 namely Gunil Changmai and Lakheswar Baraik had not seen the incident and came to know about it from others. 10. PW-7 Sub Inspector of Police Dulal Gogoi is the Investigating Officer and in his deposition he stated that while he was posted as in-charge of Lakuwa police out post, at about 7.30 p.m. of 12.08.2018, he received one verbal information from Deba Bakti regarding the killing of his younger son Tukheswar Bakti by the accused/appellant Puna Bakti on some petty matter. At about 7.45 p.m., when he arrived at the place of occurrence, he saw the dead-body of the deceased Tukheswar Bakti lying on the road in front of the house and accordingly the sketch map was made and the inquest was conducted at Lakuwa police outpost by the Executive Magistrate. On the same day, at about 10.00 p.m., he had also received one written ejahar from Deba Bakti, the father of the accused/appellant as well as the deceased and after making necessary G.D entry, he forwarded the FIR to Simaluguri Police Station for registration of the case. On the same day, at about 10.00 p.m., he had also received one written ejahar from Deba Bakti, the father of the accused/appellant as well as the deceased and after making necessary G.D entry, he forwarded the FIR to Simaluguri Police Station for registration of the case. The Investigating Officer in his deposition stated that on 14.08.2018 at about 9.20 a.m., he seized one dao from the drain in the backside of the house of the accused/appellant and Exhibit-2 is the said seizure. As the dao was recovered from the drain water, it was not sent for FSL examination. In cross examination, the Investigating Officer stated that the dao was recovered on being shown by the accused/appellant and that the accused/appellant and the deceased had some dispute over landed properties and there was a quarrel between them in furtherance of such dispute. The Investigating Officer in his cross also stated that the witness Champa Mura in her statement before the police had not stated that the accused/appellant caused cut injuries in the abdomen, face and leg of the deceased Tukheswar Bakti. He also stated that the witness Sunu Bakti in her statement before the police had also not stated that the accused/appellant also caused injuries in the abdomen and neck of the deceased. 11. Shanti Bakti, the wife of the accused/appellant in her deposition as DW-1 stated that on the day of the incident, the deceased Tukheswar Bakti had a quarrel with her husband during the day time with regard to some land dispute. At that time her husband brought certain Neem sapling and while he was planting the Neem sapling, the deceased Tukheswar Bakti raised objection and asked him to remove the sapling and in furtherance thereof, certain altercation took place. At 2.00 p.m., the deceased Tukheswar Bakti had intimidated her husband to leave the house along with his wife and at about 3.00 p.m., DW-1 left her matrimonial house and went to her parental house. At about 6.00 p.m., upon being informed by her daughters that there was a quarrel between the accused and the deceased, she came to her residence where she saw her husband was lying in the veranda with injuries on his head and both legs and on being asked, was told that the deceased Tukheswar Bakti had assaulted him with a bamboo stick. Upon knowing of the incident, DW-1 gave him first aid treatment to the accused. 12. In his statement under Section 313 Cr.P.C, the accused/appellant Puna Bakti in response to the question whether he is to say anything more on the case and the evidence stated as extracted:- “Due to land dispute, as Tukheswar used to make quarrel with me, on the date of incident, he demanded some more land from my possession and when he assaulted me, I have retaliated and on this Tukheswar sustained injury and died.” 13. The post-mortem report also reveals that there was only one cut injury on the back side of the neck of the deceased. PW-2 Champa Mura and PW-3 Sunu Bakti who had led the evidence as eye witnesses to the incident, although narrated the incident to the extent that the fatal blow was inflicted by the accused/appellant Puna Bakti upon the deceased Tukheswar Bakti, but there appears to be a variation in the description of the incident leading to such assault. PW-2 Champa Mura in her evidence in chief stated that there was a quarrel between the deceased and the accused/appellant and after some time, the deceased left the place for going home and at that time the accused/appellant Puna Bakti inflicted dao blows with one Kalam Katari dao on the neck and abdomen of the deceased and also gave blow on his face and leg. PW-3 on the other hand narrated the incident by stating that upon hearing hue and cry resulting from the quarrel between the accused and the deceased, she came out of her house and after some moment saw that the accused/appellant Puna Bakti had inflicted dao blows with one Kalam Katari dao on the neck and abdomen of the deceased Tukheswar Bakti. 14. It is noticeable that the PW-2 describes of four blows being inflicted by the accused whereas PW-3 describes two blows being given. In cross examination, PW-2 had stated that she had not stated before the police that the accused/appellant caused cut injuries in the abdomen, face and leg of the deceased Tukheswar Bakti. Both the PW-2 and PW-3 also deposes that there was a quarrel between the accused/appellant and the deceased and the quarrel also resulted in the scuffle between the two where both of them fell down. Both the PW-2 and PW-3 also deposes that there was a quarrel between the accused/appellant and the deceased and the quarrel also resulted in the scuffle between the two where both of them fell down. But at the same time, the evidence of the doctor who had conducted the post-mortem examination reveals that there was only one cut injury on the back side of the neck of the deceased, which again is confirmed by the post-mortem report. 15. PW-2 in her examination in chief stated that after the quarrel the deceased started leaving the place and thereafter the dao blow was inflicted by the accused/appellant on the back side of the neck of the deceased whereas on the other hand, the PW-3 stated that after hearing a hue and cry resulting from the quarrel between the accused/appellant and the deceased, she came out of her house and after some moment, the accused/appellant Puna Bakti inflicted dao blows with one Kalam Katari dao on the neck of the deceased Tukheswar Bakti. 16. DW-1 in her examination in chief stated about a quarrel between the accused/appellant and the deceased over some land dispute and further that on the day of the incident, the accused/appellant was planting certain Neem sapling over a plot of land to which the deceased had objected and resulted in an altercation between the two. The witness also stated that the deceased Tukheswar Bakti had intimidated her husband to leave the house along with his family. The witness also stated that she went away to her parental house at about 3.00 p.m. and when informed about the quarrel between the accused/appellant and the deceased, she came back to her residence at about 6.00 p.m. and saw that the accused was lying in the veranda with injuries on his head and both legs, which was stated to have been caused by a bamboo stick and inflicted upon by the deceased to which the witness gave certain first aid treatment. This part of the evidence regarding injuries on the accused as well as the prolong quarrel between the accused/appellant and the deceased resulting from plating of certain Neem sapling had not been questioned by the prosecution in cross examination. 17. This part of the evidence regarding injuries on the accused as well as the prolong quarrel between the accused/appellant and the deceased resulting from plating of certain Neem sapling had not been questioned by the prosecution in cross examination. 17. We also take note of that DW-1 Shanti Bakti had stated that she herself gave first aid treatment to the accused to the injuries which again would be an indication that there may not be any medical injury report, but the said part of the deposition had not been questioned by the prosecution in cross examination. 18. From the aforesaid materials and evidence available on record, it can be concluded that although there are eye witnesses account of the fatal blow being inflicted by the accused/appellant Puna Bakti upon the deceased Tukheswar Bakti, but such incident of inflicting the fatal blow also preceded by a prolong quarrel between the accused/appellant and the deceased. There are evidences that the quarrel started with the accused/appellant planting certain Neem sapling over the land to which the deceased had objected. In other words, prior to the fatal incident, the accused/appellant was indulging in plantation of certain Neem sapling. 19. Section 302 IPC inter-alia provides that whoever commits murder shall be punished with death or imprisonment for life and shall also be liable to fine, where section 300 IPC describes murder to be culpable homicide if the act by which the death is caused is done with the intention of causing death or it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused or if it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death or if the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death subject to the exceptions contained therein. 20. The exception-1 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. 20. The exception-1 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. Exception-2 provides the culpable homicide is not murder 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-4 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 taken undue advantage or acted in a cruel or unusual manner. 21. In the instant case, the evidence on record reveals that there was a prolong prior quarrel between the accused/appellant and the deceased immediately preceding the fatal incident. The un-controverted oral evidence of DW-1 also describes of certain head injuries and leg injuries on the accused/appellant being caused by the deceased. Evidence is also available that in the quarrel, there was a scuffle between the accused and the deceased where both of them fell down. In our view, the aforesaid three circumstances would be a mitigating circumstance to bring the incident within Exception-4 to Section 300 IPC and thereby we are of the view that the act of causing fatal blow on the deceased would be a culpable homicide not amounting to murder. 22. In our view, the aforesaid three circumstances would be a mitigating circumstance to bring the incident within Exception-4 to Section 300 IPC and thereby we are of the view that the act of causing fatal blow on the deceased would be a culpable homicide not amounting to murder. 22. Having arrived at such conclusion, we also take note of a mitigating circumstance where apart from the evidence of PW-2 that the deceased had turned away from the place of the quarrel and at that stage the fatal blow was inflicted, the other evidences makes it discernible that the fatal blow was inflicted in course of the quarrel and scuffle that was taking place between the accused/appellant and the deceased and the evidence of injury found on the accused/appellant leads us to a conclusion that the act of giving the fatal blow by the accused/appellant upon the deceased cannot be stated to have been done with the knowledge that it is likely to cause death of the deceased. 23. Accordingly, we are of the view that the evidence on record would lead us to a conclusion that the act of causing death of the deceased Tukheswar Bakti by the accused/appellant Puna Bakti in the manner as revealed from the evidence on record would be an offence punishable under Section 304 Part II of the IPC. Accordingly, we modify the conviction of the accused/appellant from Section 302 IPC to that of Section 304 Part II of the IPC. 24. Considering the mitigating circumstances as indicated above and also taking note of the conclusion arrived at by the learned Sessions Judge, Sivasagar in the judgment and order dated 07.03.2019 that the conduct of the accused/appellant while in custody was of good behavior and secondly the accused/appellant had shown remorse to the act of him causing death of his younger brother, we are of the view that a sentence of 07(seven) years of rigorous imprisonment by retaining the fine as imposed by the learned Sessions Judge, Sivasagar would be sufficient for the purpose of sentencing the accused/appellant. 25. Accordingly, having convicted the accused/appellant under section 304 Part II of the IPC, the accused/appellant is sentenced to undergo rigorous imprisonment for 07(seven) years by retaining the fine that was imposed by the learned Sessions Judge, Sivasagar in Sessions Case No. 123(S-N)/2018 by setting off the period of custody already undergone. 26. 25. Accordingly, having convicted the accused/appellant under section 304 Part II of the IPC, the accused/appellant is sentenced to undergo rigorous imprisonment for 07(seven) years by retaining the fine that was imposed by the learned Sessions Judge, Sivasagar in Sessions Case No. 123(S-N)/2018 by setting off the period of custody already undergone. 26. The Jail Appeal is disposed of as indicated above. Send back the LCR immediately. 27. Before parting with the records, we appreciate the valuable services rendered by Mr. A. Dhar, learned Amicus Curiae. Accordingly, we direct the Gauhati High Court Legal Service Committee to provide the appropriate legal fees to Mr. A. Dhar, learned Amicus Curiae on production of a certified copy of this judgment and order.