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2024 DIGILAW 776 (GAU)

Buwaj Horo v. State of Assam

2024-05-28

MANISH CHOUDHURY, ROBIN PHUKAN

body2024
JUDGMENT : Manish Choudhury, J. 1. The instant criminal appeal from Jail is preferred against a Judgment dated 17.07.2019 passed by the Court of learned Additional Sessions Judge, Sonitpur, Tezpur in Sessions Case no. 165/2014. By the Judgment and Order dated 17.07.2019, the Court of learned Additional Sessions Judge, Sonitpur, Tezpur has convicted the accused-appellant for the offence of murder under Section 302, Indian Penal Code [IPC] and as a consequence, the accused- appellant has been sentenced to undergo imprisonment for life and to pay a fine of Rs. 5,000/-, in default of payment of fine, to suffer rigorous imprisonment for another three months. In addition, the accused-appellant has also been convicted on finding him guilty for the offence under Section 448, IPC and for the said offence, he has been sentenced to undergo rigorous imprisonment for six months. Both the substantive sentences of imprisonment are ordered to run concurrently. 2. We have heard Mr. M. Dutta, learned Amicus Curiae for the accused- appellant; and Ms. B. Bhuyan, learned Senior Counsel & Additional Public Prosecutor, Assam assisted by Ms. R. Das, learned counsel for the respondent State of Assam. 3. The case, Sessions Case no. 165/2014 arose out of Tezpur Police Station Case no. 464/2014 and G.R. Case no. 936/2014. The crime case, Tezpur Police Station Case no. 464/2014 came to be registered on 24.04.2014 pursuant to lodging of a First Information Report [FIR] by the informant, Ms. Yappi Horo, wife of Late Mato Horo on 24.04.2014 before the In-Charge, Borghat Out Post under Tezpur Police Station. On receipt of the FIR, the In-Charge, Borghat Out Post after registering the same vide Borghat Out Post General Diary Entry No. 370 dated 24.04.2014, forwarded the FIR to the Officer In-Charge, Tezpur Police Station for registering a case under proper sections of law. At the same time, the investigation of the case was taken up by the In-Charge, Borghat Out Post. On receipt of the FIR, the Officer In-Charge, Tezpur Police Station registered the FIR as Tezpur Police Station Case no. 464/2014 under Section 302, IPC on 24.04.2014. 4. In the FIR, the informant had inter alia stated that when at about 04-00 p.m. on 23.04.2014, an altercation was going on between herself and her husband, Mato Haro over a domestic matter, the accused who was her brother- in-law, trespassed into their house. 464/2014 under Section 302, IPC on 24.04.2014. 4. In the FIR, the informant had inter alia stated that when at about 04-00 p.m. on 23.04.2014, an altercation was going on between herself and her husband, Mato Haro over a domestic matter, the accused who was her brother- in-law, trespassed into their house. It was alleged that when, at first, the accused tried to assault her, her husband tried to resist the accused. The accused then picked up an axe, which her husband kept in the courtyard after cutting firewood, and assaulted her husband by striking a blow with the axe. According to the informant, her husband died instantaneously and after committing the act, the accused fled from the place of occurrence. 5. After investigating into the case, that is, Tezpur Police Station Case no. 464/2014 [corresponding G.R. Case no. 936/2014], the Investigating Officer [I.O.] of the case submitted a charge sheet under Section 173[2], CrPC vide Charge Sheet no. 214/2014 dated 23.05.2014 finding a prima facie case established against the accused for the offence under Section 302, IPC. On submission of the Charge Sheet, the Court of learned Additional Chief Judicial Magistrate, Sonitpur, Tezpur as the committal court secured the appearance of the accused who was taken into custody on the date of the incident, that is, on 23.04.2014 itself, from Jail custody on 17.07.2014. As the copies were ready, the same were furnished to the accused as per the provisions of Section 207, CrPC. Finding the offence under Section 302, IPC exclusively triable by the Court of Sessions, the Court of learned Additional Chief Judicial Magistrate, Tezpur by an Order of Commitment dated 17.07.2014 committed the case records of G.R. Case no. 936/2014 to the Court of Sessions, Sonitpur, Tezpur for trial. The learned Public Prosecutor was notified accordingly and the accused was directed to be produced from Jail custody before the Court of Sessions on 31.07.2014. 6. On receipt of the case records of G.R. Case no. 936/2014, the Court of Sessions, Sonitpur, Tezpur registered the same as Sessions Case no. 165/2014 and forwarded the case records to the Court of learned Additional Sessions Judge, Sonitpur, Tezpur ['the trial court', for short] for trial and disposal. Upon appearance of the accused before the learned trial court, the learned trial court heard the learned Public Prosecutor and the learned counsel for the defence on the point of charge. 165/2014 and forwarded the case records to the Court of learned Additional Sessions Judge, Sonitpur, Tezpur ['the trial court', for short] for trial and disposal. Upon appearance of the accused before the learned trial court, the learned trial court heard the learned Public Prosecutor and the learned counsel for the defence on the point of charge. After such hearing and upon perusal of the materials on record, the learned trial court framed the following charges against the accused :- First - That you, on or about on 23.04.2014 at about 04-00 p.m. committed house trespass by entering into the house of Tappi Hora at Rangalan under Tezpur Police Station and thereby committed an offence punishable under Section 448 of the Indian Penal Code, and within my cognizance. Secondly - That you, on or about on 23.04.2014 at about 04- 00 p.m., committed murder by causing death of Mato Horo and thereby committed an offence punishable under Section 302 of the Indian Penal Code, and within my cognizance. 7. When the charges were read over and explained to the accused, he pleaded not guilty and claimed to be tried. During the course of the trial, the prosecution side examined eleven nos. of witnesses; exhibited six nos. of documents; and one material exhibit to bring home the charges against the accused. The witnesses examined by the prosecution were :- [1] P.W.1 - Smti. Yapi Horo, [2] P.W.2 - Smti. Chowni Horo, [3] P.W.3 - Lakhiram Kutum, [4] P.W.4 - Dr. D.K. Borah, [5] P.W.5 - Rajen Horo, [6] P.W.6 - Mangra Horo, [7] P.W.7 - Sukra Kertaka, [8] P.W.8 - Dhanowa Kandolona, [9] P.W.9 - Ganga Horo, [10] P.W.10- Suresh Horo, and [11] P.W.11 - Gopal Singha. The documents exhibited were : [1] Ext. - 1 - Seizure Memo; [2] Ext. - 2 - Post-Mortem Examination Report; [3] Ext. - 3 - Sketch Map of P.O.; [4] Ext. - 4 - Inquest Report; [5] Ext.- 5 - First Information Report; and [6] Ext. - 6 - Charge-Sheet. An axe was exhibited as Material Ext-1. After closure of the prosecution evidence, the accused was examined under Section 313, CrPC. When the accused was asked as to whether he would adduce defence evidence, the accused answered in the affirmative. In his defence, the accused adduced evidence of one defence witness, D.W.1. - 6 - Charge-Sheet. An axe was exhibited as Material Ext-1. After closure of the prosecution evidence, the accused was examined under Section 313, CrPC. When the accused was asked as to whether he would adduce defence evidence, the accused answered in the affirmative. In his defence, the accused adduced evidence of one defence witness, D.W.1. After appreciation of the evidence/materials on record and after hearing the learned counsel for the parties, the learned trial court has convicted the accused for the offences, mentioned above, and he has been sentenced in the manner, indicated above. 8. Mr. Dutta, learned Amicus Curiae appearing for the accused-appellant has submitted that other than the Autopsy Doctor and the I.O. of the case, the prosecution side had examined nine nos. of prosecution witnesses, who narrated about the alleged incident. Out of those nine nos. of witnesses, none had deposed as eye-witness, save and except the informant [P.W.1]. Narrowing on the informant [P.W.1], Mr. Dutta has submitted that even her testimony does not inspire confidence. Though it is open to base an order of conviction on the testimony of a sole eye-witness but such testimony has to be trustworthy and consistent. But in the case in hand, the testimony of the informant [P.W.1] as an eye-witness are fraught with inconsistencies and as such, her testimony cannot be relied upon to base an order of conviction. The I.O. of the case, P.W.11 deposed that the accused had surrendered at the Police Station on 23.04.2014. But the said witness, that is, P.W.11 did not exhibit the concerned general diary entry to support such fact. Moreover, the accused in his examination under Section 313, CrPC had clearly denied about any act of surrender on his part. It has been contended that the learned trial court has not properly appreciated the plea of alibi. Since the testimony of the sole eye-witness is not reliable and does not deserve acceptance in toto, the accused deserves to be granted the benefit on the failure of the prosecution to prove the case beyond all reasonable doubts. He has alternatively submitted that there was a single blow and it was during a sudden fight. Moreover, there was no premeditation. He has alternatively submitted that there was a single blow and it was during a sudden fight. Moreover, there was no premeditation. He has, thus, submitted that the Judgment and Order of conviction and sentence passed by the learned trial court is liable to be set aside and the accused deserves to be acquitted of the charges or else, is liable to be altered. 9. Ms. Bhuyan, learned Additional Public Prosecutor opposing the contentions of the learned Amicus Curiae, has contended that the learned trial court after proper appreciation of the entire evidence/materials on record, has arrived at the correct findings in respect of both the charges. The informant [P.W.1] was an eye-witness to the entire incident from first to end and save and except minor inconsistencies on trivial issues, her testimony is found to be consistent throughout. Further, her testimony is also corroborated by the medical evidence. Ms. Bhuyan has contended that the medical evidence has clearly indicated that the accused had inflicted the blow on the vital part on the person of the deceased, that is, on the head and the injury was such that it was sufficient to cause death. Ms. Bhuyan has referred to the Post-Mortem Examination Report [Ext.-2] to buttress such submissions. According to the learned Additional Public Prosecutor, the plea of alibi has been rightly discarded by the trial court inter- alia on the ground that such plea was an afterthought. It is, thus, contended that there is no question of interference with the Judgment and Order of conviction and sentence passed against the accused and the present criminal appeal is devoid of any merits. 10. We have duly considered the submissions of the learned counsel for the parties and have also gone through the evidence/materials including the testimonies of the witnesses, available in the case records of Sessions Case no. 165/2014, in original. We have also considered the decisions cited by the learned counsel for the parties. 11. P.W.1, Yapi Horo was the wife of the deceased and is the sister-in-law [the wife of elder brother] of the accused. As regards the incident, P.W.1 deposed to the effect that at about 02-00/03-00 p.m. on the date of the incident, she was at home cooking food after returning from her health check-up. At that time, she was told by her husband that he would eat meat. As regards the incident, P.W.1 deposed to the effect that at about 02-00/03-00 p.m. on the date of the incident, she was at home cooking food after returning from her health check-up. At that time, she was told by her husband that he would eat meat. In reply, she told her husband that she would bring meat if she did not get fish. At that time, the accused came to their house and assaulted her. Then, a scuffle ensued between her husband and the accused. According to P.W.1, she tried to dissuade them. But, the accused picked up an axe which was kept outside the house, in his hands. After picking up the axe, the accused came inside the house and assaulted her husband to death by striking with the axe. P.W.1 stated that her husband was killed in the kitchen itself. As a result of the blow on his head, her husband's head got cracked. P.W.1 further deposed that the accused also told her that she would also be killed after three months after his coming out of the jail. The accused thereafter, went to the Police Station. It was at about 08-00 p.m., Police personnel came to the place of occurrence and took away the dead body of the deceased as well as the axe. She identified the axe in the court and stated that when the seizure list was prepared, she gave her thumb impression there. She stated to have handed over the axe to the Police. The P.W.1 further stated that it was in the morning on the next day, the FIR was lodged by her at the Police Station. She affirmed that the FIR was written as per her words wherein she put her thumb impression. She further stated that in the Inquest Report prepared by the Police on the date of the lodging of the FIR, she also put her thumb impression. 11.1. During cross-examination, P.W.1 stated that there was no enmity between her husband and the accused though the two families were not in visiting terms. As regards the incident, P.W.1 further stated that at the relevant time, she was cooking food after coming back from the hospital. Then, her husband came and assaulted her in anger for not cooking meat. When her husband was assaulting her, she was crying loudly. As regards the incident, P.W.1 further stated that at the relevant time, she was cooking food after coming back from the hospital. Then, her husband came and assaulted her in anger for not cooking meat. When her husband was assaulting her, she was crying loudly. According to P.W.1, two persons named Sunil [not a witness] and Rajen came there hearing her cry. At that time, the accused whose house was adjacent to the house of the informant and the deceased, also came there by crossing the boundary wall between the two campuses. P.W.1 stated that at that time also, she was crying. P.W.1 denied a suggestion that she did not state before the Police that the accused had assaulted her. P.W.1 denied suggestions that it was her husband who picked up the axe; and that when all three of them tried to grab the axe, her husband got injured in the process. She also denied suggestions that the accused did not give any threat of killing her; and that as she had enmity with the accused, she had falsely implicated the accused. 12. The deceased was the elder son and the accused is the younger son of P.W.2, Chawni Horo. P.W.2 deposed that on the date of the incident, she returned home only at around 05-00 p.m. P.W.2 used to reside with the accused. At that time, the dead body of her elder son, that is, Mato Horo was lying on the veranda. Then, she came to know that the deceased died in a fight between the two brothers. She deposed to the effect that it was the deceased who came to kill the accused and then, the accused killed his elder brother. After the incident, the accused went to the Police Station. Later on, when at around 06-00/07-00 p.m., Police personnel came from the Police Station they took away the axe from the house of the deceased. She stated that the axe shown to her in the court, was the same axe which was taken away by the Police personnel. She further stated that she also went to the Police Station and put her thumb impression in the Inquest Report prepared at the Police Station. 12.1. In her cross-examination, P.W.2 admitted that she did not see the incident. 13. P.W.3 was the Village Headman of Rangajan village and the accused and the deceased were inhabitants of the said village. She further stated that she also went to the Police Station and put her thumb impression in the Inquest Report prepared at the Police Station. 12.1. In her cross-examination, P.W.2 admitted that she did not see the incident. 13. P.W.3 was the Village Headman of Rangajan village and the accused and the deceased were inhabitants of the said village. P.W.3, in his testimony, stated that during the evening hours on the date of incident, he was at his home. At that time, one Bango Horo [not a witness] informed him that the accused had killed his elder brother. On receiving the information, he after telephonically informing the Police Station, went to the place of occurrence. Going there, he saw the deceased lying on the veranda of the house. He saw one blood injury on the head of the deceased. At that time, P.W.1 showing him an axe told him that her husband was killed with that axe. P.W.3 stated that when the Police personnel came to the place of occurrence, they seized the axe vide Seizure List, Ext.-1 wherein he subscribed his signature as Ext.-1[1]. P.W.3 stated that he recognized the axe which was produced before the court, as Mat. Ext-1. He further deposed that the accused appeared at the Police Station on the date of the incident itself. 13.1. In cross-examination, P.W.3 stated that he did not witness the incident of assault. He denied suggestions that he did not inform the Police; and that he did not see an injury on the head of the deceased wherefrom blood was oozing out. He further stated that the axe [Mat. Ext-1] which was shown to him in the Court, was the same axe which the P.W.1 showed to him earlier. 14. P.W.4, Dr. Dipta Kantha Borah was serving as the Sub-Divisional Medical & Health Officer at Kanaklata Civil Hospital, Tezpur on 24.04.2014. It was on 24.04.2014, he performed the post-mortem examination on the dead body of the deceased in reference to Borghat Out Post General Diary Entry no. 360 dated 23.04.2014. P.W.4 deposed that on examination of the dead body, he reported the following in the Post-Mortem Examination [PME] Report :- External appearance : A male dead body was seen lying on the top of post mortem table * * * * * * * * * * Eyes are closed and swollen. Mouth was closed, bleeding seen from both nostrils. P.W.4 deposed that on examination of the dead body, he reported the following in the Post-Mortem Examination [PME] Report :- External appearance : A male dead body was seen lying on the top of post mortem table * * * * * * * * * * Eyes are closed and swollen. Mouth was closed, bleeding seen from both nostrils. Semen was present. No faeces seen. Rigor mortis was partial [the dead body was examined around 36 hours after the death]. Scalp intact. Skull left parietal and temporal bone broken to several pieces about 2" X 1" area. Membrane torn over the temporo-occipital region on left side. Left side of the brain broken under the broken skull with free blood. Thorax was pleura and larynx health. Both lungs were pale with occasional black pigmentation. Pericardium healthy. Heart empty. Vessels healthy. Abdomen : Walls peritoneum mouth, pharynx oesophagus healthy. Stomach only secretion was present. Small intestine - distended by gas. Large intestine distended by gas and faeces. Liver, kidney bladder were health. Organs of generation healthy, semen was present. Injury was antemortem. 14.1. P.W.4 further deposed that in the PME Report, he opined that the deceased died due to head injury. P.W.4 exhibited the PME Report as Ext.-2 and identified his signature therein as Ext.-2[1]. He also identified the signature of the Joint Director of Medical and Health Services, Sonitpur, Tezpur as Ext.-2[2]. 14.2. When the defence cross-examined P.W.4, P.W.4 stated that in the PME Report, he inadvertently wrote the date as 24.04.2012 instead of 24.04.2014. He further clarified that in the PME Report, he correctly wrote the date 24.04.2014 under his signature. As regards the injury, P.W.4 stated that the injury might also be caused by fall on hard substance. 15. The testimony of P.W.5, Rajen Boro, is not of much relevance as he testified that on the date of incident, he was at another place in connection with a marriage ceremony. The prosecution side is deficient on the aspect as to whether this witness was the person, Rajen, who was referred to by P.W. 1 as a person who visited the place of occurrence at the time of the incident. 16. P.W.6, Mangra Horo said that he, the deceased and the accused were brothers. P.W.6 deposed that on the date of the incident, he was not at his house. 16. P.W.6, Mangra Horo said that he, the deceased and the accused were brothers. P.W.6 deposed that on the date of the incident, he was not at his house. While he was returning home, his uncle Robert Horo [not a witness] informed him that the accused had killed their elder brother, that is, the deceased. He on reaching his house, saw his elder brother lying in the courtyard. Then, he called the people from the neighbourhood. The time was about 06-00 p.m. On his call, some of the villagers came to the place of occurrence and the Gaonburah informed the incident to the Police Station. 16.1. In cross-examination, he denied a suggestion that the informant and the deceased used to have quarrels. As he did not see the occurrence himself, he stated that he did not know who had killed his elder brother. 17. As per P.W.7., a co-villager, he returned from his duty at about 06-00/06-30 p.m. on the date of the incident and on his return, he was informed about the incident that the accused had killed his elder brother. In his cross-examination, P.W.7 admitted that he did not see the occurrence himself. He further stated that his house was situated near the house of the informant [P.W.1] and the deceased. P.W.7 stated that the informant [P.W.1] and the deceased used to enter into altercations and tussles and they also used to enter into fights. On a previous occasion, the informant had assaulted the deceased by a lathi [stick]. 18. P.W.8, another co-villager and a neighbour, testified to the effect that at the time of the incident, he was at another place doing duty and he returned from his duty at about 06-00 p.m. After his return, his wife informed him that the accused had killed his brother by means of an axe. When Police personnel came and asked him to show the house of the deceased, he showed the house of the deceased. 18.1. In his cross-examination, P.W.8 stated that he did not see the occurrence himself and did not know how the deceased was killed. As regards past relationship, P.W.8 deposed that the informant [P.W.1] and the accused used to enter into altercations and tussles. He denied a suggestion that it was the informant who had killed her husband. 19. 18.1. In his cross-examination, P.W.8 stated that he did not see the occurrence himself and did not know how the deceased was killed. As regards past relationship, P.W.8 deposed that the informant [P.W.1] and the accused used to enter into altercations and tussles. He denied a suggestion that it was the informant who had killed her husband. 19. The testimonies of P.W.9 and P.W.10 are also not of much significance as they had deposed that they did not know how the deceased had died. P.W.9 also stated that the Police had not recorded his statement. 20. The I.O. of the case was examined as P.W.11. In his examination-in-chief, P.W.11 stated that on 23.04.2014, he was serving as In-Charge, Borghat Police Out Post. At about 06-00 p.m. on that day, the accused appeared in the Borghat Police Out Post and informed that he had killed his brother, Mato Horo by assaulting him with an axe. The accused had, thus, surrendered in the Police Station. He [P.W.11] stated that in connection with such act of surrender, he registered a General Diary Entry No. 360 dated 23.04.2014 and took the accused into custody. After informing his superior officials, P.W.11 stated to have proceeded to the place of occurrence at Village - Rangajan where the house of the accused was situated. On reaching the place of occurrence, he noticed that the dead body of the deceased was lying on the veranda. As it was dark, the inquest was not conducted at that time. At the place of occurrence, the I.O. [P.W.11] recorded statements of three witnesses under Section 161, CrPC. The wife of the deceased, P.W.1 produced an axe to him and informed that it was by the said axe the accused had committed the crime. The axe was seized vide Seizure List, Ext.-1, in presence of witnesses. The I.O. further stated that he prepared a Sketch Map of the place of occurrence vide Ext.-3. Thereafter, the dead body of the deceased was taken to Kanaklata Civil Hospital, Tezpur. It was on the following day, the inquest on the dead body was done vide Ext.-4, Inquest Report. P.W.11 further stated that during the inquest, he noticed one injury towards the back left side of the head of the deceased and there was blood coming out of the nose and mouth of the dead body. It was on the following day, the inquest on the dead body was done vide Ext.-4, Inquest Report. P.W.11 further stated that during the inquest, he noticed one injury towards the back left side of the head of the deceased and there was blood coming out of the nose and mouth of the dead body. He exhibited the FIR as Ext.-5, the Charge Sheet as Ext.-6 and the axe seized vide Ext.-1, Seizure List as Mat. Ext.-1. He further stated that he seized the axe from the wife of the deceased. 20.1. In his cross-examination, the I.O. [P.W.11] stated that though the incident had occurred on 23.04.2014, the FIR was received on 24.04.2014. It was on 23.04.2014, the accused surrendered before the Police at the Police Out Post and on such surrender, the accused was taken into custody by him and till his arrest, the accused was in custody. He further stated that before proceeding to the place of occurrence, he registered a General Diary Entry no. 360 on 23.04.2014. The I.O. [P.W.11] stated that he did not send the seized axe for FSL examination and he did not notice any blood stain on the seized axe. He further stated that when he reached the place of occurrence, he found the wife and the mother of the deceased therein. He denied to have conducted the investigation not in a proper manner. He denied all the other suggestions put to him by the defence. 21. The sole defence witness, D.W.1 - Khudra Gore deposed that he knew the informant [P.W.1] as well as the accused. He stated that he was a resident of the same village. He deposed to the effect that on the date of the occurrence, he along with the accused went to catch fish in a nearby river and it was at that time, they heard that a fight had taken place in the village. Having heard about the fight, they came back to the village and went to the place of the deceased wherefrom the commotion arose. Going there, they found the deceased in a lying condition and he heard from the people assembled there that the deceased had a quarrel with his wife, that is, the informant [P.W.1]. 21.1. When D.W.1 was cross-examined, he stated that he had come to the court to give evidence along with the accused. Going there, they found the deceased in a lying condition and he heard from the people assembled there that the deceased had a quarrel with his wife, that is, the informant [P.W.1]. 21.1. When D.W.1 was cross-examined, he stated that he had come to the court to give evidence along with the accused. By denying a suggestion that the accused went with him to catch fish, this witness admitted that the accused was not with him for catching fish on the date of the incident. He denied a suggestion that the accused had dealt the blow on the head of the deceased with an axe on the date of the incident and caused his death. 22. On evaluation of the testimonies of all the witnesses, it has emerged that the house of the accused and the house of the deceased were situated adjacent to each other. The deceased used to stay with his wife, that is, the informant [P.W.1] whereas the accused used to stay in his house with his mother [P.W.2]. With the aid of the defence witness, D.W.1, the accused had raised a plea of alibi that at the time and date of the incident, he was not present at the place of occurrence. The learned trial court had considered the evidence of D.W.1 and the plea of alibi taken by the accused. After due consideration, the learned trial court had discarded the testimony of D.W.1 with finding that the same was unworthy of credence and could not be accepted as true. One of the reasons for discarding the evidence of D.W.1 was that no suggestion was made to any of the prosecution witnesses when they were cross-examined earlier, on the point that at the time of the alleged occurrence, the accused was catching fish elsewhere and hence, his presence at the place of occurrence was not at all possible. Another reason for discarding the plea of alibi was that the accused during his cross-examination under Section 313, CrPC also did not mention anything as regards his presence elsewhere at the time of occurrence. Furthermore, the presence of the accused at the time and place of occurrence was found to be established from the evidence of the prosecution witnesses. The evidence of the I.O. [P.W.11] also established that the accused had surrendered before the Police in Borghat Police Out Post at 06-00 p.m. on 23.04.2014. Furthermore, the presence of the accused at the time and place of occurrence was found to be established from the evidence of the prosecution witnesses. The evidence of the I.O. [P.W.11] also established that the accused had surrendered before the Police in Borghat Police Out Post at 06-00 p.m. on 23.04.2014. At any rate, the defence evidence failed to outweigh the prosecution evidence in respect of the presence of the accused at the place of occurrence. 23. We have found no reason to disagree with the reasons given by the learned trial court. A plea of alibi is to be put with absolute certainty so as to exclude the possibility of presence of the accused at the place of occurrence at the relevant time. When plea of alibi is raised by an accused, it is for the accused to establish such plea by positive evidence. The accused did not enter into the witness box himself to adduce evidence in support of his plea of alibi. The defence witness, D.W.1 had merely mentioned that on the date of the occurrence, he was with the accused catching fish in a nearby river. But D.W.1 did not mention anything about the time when they were catching fish. There was, thus, no certainty as regards the time period of the accused being present elsewhere, other than the place of occurrence at the relevant time. For the reasons cited by the learned trial court as well as the failure on the part of the accused to lead positive evidence with absolute certainty so as to completely exclude the possibility of presence of the accused at the time and place of occurrence, the plea of alibi taken by the accused in this case is found not believable and acceptable at all. It is settled that even though the plea of alibi of the accused is not established, it is still the duty of the prosecution to prove the case against the accused. 24. Amongst the prosecution witnesses, it was only the informant [P.W.1] who was the wife of the deceased, was found to be the only eye-witness. It is well settled that conviction can be based on the sole testimony of an eye-witness, provided such testimony is found to be trustworthy and consistent, inspiring confidence, leaving aside inconsistencies of minor and trivial nature. Amongst the prosecution witnesses, it was only the informant [P.W.1] who was the wife of the deceased, was found to be the only eye-witness. It is well settled that conviction can be based on the sole testimony of an eye-witness, provided such testimony is found to be trustworthy and consistent, inspiring confidence, leaving aside inconsistencies of minor and trivial nature. During the examination of the prosecution witnesses, as discussed above, the accused was found to have not taken any defence that he was not present at the time of the incident and at the place of the incident, which was the house of the informant and the deceased. 25. On evaluation of the entire testimony of the informant [P.W.1], it emerges that on the date of the incident, she went for a health check-up at a hospital. On that day, the informant was told by her husband that he would eat meat on that day. The informant stated to have replied to her husband that if she did not get fish then only she would bring meat. After coming back from the hospital, she was cooking food in her house where she used to reside with her husband, Mato Horo. When the informant was cooking food, her husband came there and assaulted her in anger for not cooking meat. On being so assaulted by her husband, the informant cried aloud. The informant stated that hearing her cry, two persons named Sunil and Rajen came there. Sunil was not examined as a witness by the prosecution. The prosecution did not clear the doubt whether P.W.5, Rajen Horo and Rajen, referred to by P.W.1, was one and the same. P.W.5 did not say that he witnessed the incident or he visited the house of P.W.1 at the relevant time. It was at that time, the accused who used to reside in the adjacent house, came to their house crossing the concrete boundary wall standing between the two houses. According to P.W.1, she was crying at that time also. Entering into the house premises of the informant and his elder brother, the accused, according to the informant, assaulted her and thereafter, a scuffle ensued between her husband and the accused. She made an effort to dissuade them. It was at that point of time, the accused picked up an axe in his hands. Entering into the house premises of the informant and his elder brother, the accused, according to the informant, assaulted her and thereafter, a scuffle ensued between her husband and the accused. She made an effort to dissuade them. It was at that point of time, the accused picked up an axe in his hands. The axe was picked up by the accused from outside the house. In the FIR [Ext.-5], the informant [P.W.1] mentioned that the axe was kept in the courtyard by her husband after cutting firewood. After picking up the axe from the courtyard, the accused came inside the house and assaulted her husband, Mato Horo by striking with the axe. P.W.1 further testified that the accused assaulted her husband on his head and as a result, his head got cracked. P.W.1 further testified that the assault by the accused on her husband was made in the kitchen of the house. 26. When the above testimony of the informant, P.W.1 is analysed together with the testimony of the autopsy doctor [P.W.4], the Inquest Report [Ext.-4] and the PME Report [Ext.-2], the same is found consistent on material points. As per the PME Report [Ext.-2], left parietal and temporal bone in the skull was broken into several pieces and there was torn over the temporo-occipital region on left side. The left side of the brain was broken under the broken skull with free blood. As per the PME Report [Ext.-2], it was the head injury which resulted into the death of the deceased. The Inquest Report [Ext.-4] is found to be consistent with the PME Report [Ext.-2] in that in the Inquest Report [Ext.-4] also, it was recorded that there was an injury on the back side of the head of the deceased. When the prosecution witnesses - P.W.1, P.W.3 & P.W.11 - were shown an axe, Mat. Ext.-1, seized vide Seizure List, Ext.-1, during the course of their depositions, these witnesses deposed to the effect that they had recognized the axe as the one which was seized during the time of investigation. The witnesses were not even questioned by the defence in respect of the axe. From the evidence on record, it has further emerged that the death of the deceased was instantaneous. The witnesses were not even questioned by the defence in respect of the axe. From the evidence on record, it has further emerged that the death of the deceased was instantaneous. Thus, there is no manner of doubt that on the date of the incident, there was a scuffle between the accused and the deceased and it was in the process of the said scuffle, the accused picked up an axe and striked at the head of the deceased with the said axe, and the same to instantaneous death of the deceased. 27. Thus, we are of the unhesitant view that it was due to such assault by the accused by the axe, the deceased had met instantaneous death. As regards the contention of the learned Amicus Curiae that there were certain inconsistencies in the versions of the informant [P.W.1], it is found that the informant [P.W.1], in the FIR [Ext.-5], had reported that after trespassing into the house, the accused tried to assault her. In the version given before the Court, the informant [P.W.1] had improved from her earlier version, given in the FIR [Ext.-5], to the extent that in her evidence-in-chief, she stated that after coming to their house, the accused had assaulted her. There is nothing in the evidence that because of either an attempt to assault or assault, the informant [P.W.1] had sustained any kind of injury on her person. When the informant [P.W.1] was cross-examined, she narrated the entire incident once again but without any mention about any assault on her. In our considered view such inconsistency does not make the other part of the testimony of the informant [P.W.1] unreliable as the informant [P.W.1] was consistent on the materials points as regards the assault made upon the deceased by the axe and the instantaneous death of her husband and the same were duly corroborated by other evidence. 28. When an assault by a weapon/object on the body of a person results in a death of that person, the question which always arises is whether the death was due to an act of murder or an act of culpable homicide not amounting to murder. 29. Section 299 of the Indian Penal Code [IPC] has defined culpable homicide and Section 300, IPC has described the kinds of culpable homicides which are murders. 29. Section 299 of the Indian Penal Code [IPC] has defined culpable homicide and Section 300, IPC has described the kinds of culpable homicides which are murders. As per Section 299, IPC, whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide. If an act of culpable homicide comes within any of the four clauses mentioned in Section 300, IPC then such culpable homicide is murder. In the scheme of the Penal Code, 'culpable homicide' is genus and 'murder' its specie. Meaning thereby, all 'murders' are 'culpable homicides' but all 'culpable homicides' are not 'murders'. Culpable homicide without the special characteristics of murder is culpable homicide not amounting to murder. 30. In State of Andhra Pradesh vs. Rayavarapu Punnayya, reported in 1976:INSC:221 : [1976] 4 SCC 382, the Hon'ble Supreme Court has explained about the manner in which the Court has to proceed whenever a court is confronted with the question whether the offence is 'murder' or 'culpable homicide not amounting to murder', on the facts of a case. It has been observed that it would be convenient for the court to approach the problem in three stages. The question to be considered at the first stage would be, whether the accused has done an act by doing which he has caused the death of another. Proof of such causal connection between the act of the accused and the death, leads to the second stage for considering whether that act of the accused amounts to 'culpable homicide' as defined in Section 299, IPC. If the answer to this question is prima facie found in the affirmative, the stage for considering the operation of Section 300, IPC is reached. This is the stage at which the Court should determine whether the facts proved by the prosecution bring the case within the ambit of any of the four clauses of the definition of 'murder' contained in Section 300, IPC. This is the stage at which the Court should determine whether the facts proved by the prosecution bring the case within the ambit of any of the four clauses of the definition of 'murder' contained in Section 300, IPC. If the answer to this question is in the negative the offence would be 'culpable homicide not amounting to murder', punishable under the first or the second part of Section 304, IPC depending, respectively, on whether the second or the third clause of Section 299, IPC is applicable. If this question is found in the positive, but the case comes, within any of the exceptions enumerated in Section 300, IPC, the offence would still be 'culpable homicide not amounting to murder' punishable under the first part of Section 304 of the Penal Code. 31. Clause thirdly of Section 300, IPC prescribes that if an act 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 then it would amount to murder. Illustration [c] to Section 300, IPC which reads as under, projects a situation :- [c] A intentionally gives Z a sword-cut or club-wound sufficient to cause the death of a man in the ordinary course of nature. Z dies in consequence. Here, A is guilty of murder, although he may not have intended to cause Z's death. In the oft-quoted decision of the Hon'ble Supreme Court of India in Virsa Singh vs. State of Punjab, reported in 1958:INSC:18 : AIR 1958 SC 465 , which has attained the status of locus classicus, Vivian Bose, J explained the meaning and scope of Clause thirdly of Section 300, IPC. 32. In Virsa Singh [supra], the ingredients of clause 'thirdly' of Section 300 IPC are brought out as under: 12. To put it shortly, the prosecution must prove the following facts before it can bring a case under Section 300 thirdly'; First, it must establish, quite objectively, that, a bodily injury is present; Secondly, the nature of the injury must be proved; These are purely objective investigations. 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. 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. Once these three elements are proved to be present, the enquiry proceeds further and, 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. 32.1. The Court in Virsa Singh [supra] has further explained Clause 'thirdly' of Section 300, IPC in the following words :- 16. …The question is not whether the prisoner intended to inflict a serious injury or a trivial one but whether he intended to inflict the injury that is proved to be present. If he can show that he did not, or if the totality of the circumstances justify such an inference, then, of course, the intent that the section requires is not proved. But if there is nothing beyond the injury and the fact that the appellant inflicted it, the only possible inference is that he intended to inflict it. Whether he knew of its seriousness, or intended serious consequences, is neither here nor there. The question, so far as the intention is concerned, is not whether he intended to kill, or to inflict an injury of a particular degree of seriousness, but whether he intended to inflict the injury in question; and once the existence of the injury is proved the intention to cause it will be presumed unless the evidence or the circumstances warrant an opposite conclusion. 33. Having regard to the facts emerging from the evidence available in the case in hand, it is apt to refer to the Exception 4 of Section 300, IPC which covers acts done in a sudden fight. As per Exception 4, 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. 34. As per Exception 4, 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. 34. In Dhiraj Gorakhbhai Nayak vs. State of Gujarat, reported in 2003:INSC:333 : [2003] 9 SCC 322, the applicability of Exception 4 of Section 300, IPC has been discussed. It has been observed there that while in the case of Exception 1 there is total deprivation of self-control, in case of Exception 4, there is only that heat of passion which clouds men's sober reason and urges them to deeds which they would not otherwise do. Though there is an element of provocation in Exception 4 as in Exception 1, but the injury done is not the direct consequence of that provocation. Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon an equal footing. The help of Exception 4 can be invoked if death is caused [a] without premeditation, [b] in a sudden fight, [c] without the offender having taken undue advantage or acted in a cruel or unusual manner, and [d] the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It has been noted that the 'fight' occurring in Exception 4 to Section 300 IPC is not defined in the Penal Code. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in a cruel or unusual manner. The expression 'undue advantage' as used in the provision means 'unfair advantage'. 35. The intention to cause death or to cause such bodily injury as is likely to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances : [i] nature of the weapon used; [ii] whether the weapon was carried by the accused or was picked up from the spot; [iii] whether the blow is aimed at a vital part of the body; [iv] the amount of force employed in causing injury; [v] whether the act was in the course of sudden quarrel or sudden fight or free for all fight, [vi] whether the incident occurs by chance or whether there was any premeditation; [vii] whether there was any prior enmity or whether the deceased was a stranger; [viii] whether there was any grave and sudden provocation, and if so, the cause for such provocation, [ix] whether it was in the heat of passion; [x] whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner: [xi] whether the accused dealt a single blow or several blows [Ref: Pulicherla Nagaraju vs. State of Andhra Pradesh, 2006:INSC:520 : (2006) 11 SCC 444 ]. 36. Reverting back to the facts of the case in hand, it has emerged from evidence on record that at the relevant time, there was a quarrel going on between the deceased and his wife, that is, the informant [P.W.1]. From the evidence on record, it has also emerged that there used to be altercations, tussles and fights between the informant [P.W.1] and her husband, the deceased. On the relevant day, in the process of quarrel, the informant [P.W.1] was assaulted by the deceased. Though there was mention of two persons coming to the place of occurrence, there was no other evidence in that connection to corroborate such claim. On the relevant day, in the process of quarrel, the informant [P.W.1] was assaulted by the deceased. Though there was mention of two persons coming to the place of occurrence, there was no other evidence in that connection to corroborate such claim. The informant had herself admitted that due to such assault, she started crying aloud. It was at that point of time, the accused who was in the adjacent house, crossed the boundary wall standing between the two premises. It was only thereafter, the accused involved in an altercation with the deceased, who was his elder brother. As per the version of the informant [P.W.1] herself, there was no prior enmity of any kind between the accused and the deceased. It was during the course of such altercation and scuffle, the accused picked up an axe which was lying in the courtyard of the house belonging to the deceased and the informant. After picking up the axe from the courtyard, the accused came inside the house and gave a blow on the head of the deceased which resulted into his death instantaneously. 37. Thus, it is evidently clear that the accused came to the house of the informant and the deceased only after hearing alarm raised by the informant, who cried aloud on being assaulted by her husband, only for the reason that his wife [P.W.1] did not cook meat as demanded by him and the purpose of entry of the accused in the house premises of the informant [P.W.1] and the deceased supposedly was to intervene in the altercation then going on between the informant [P.W.1] and the deceased. When the accused came to the place of occurrence, he came unarmed. When due to his intervention, a quarrel and scuffle ensued between the accused and the deceased it was then the accused picked up the axe which was already lying in the courtyard, kept there by the deceased himself, and gave the blow in the course in the heat of passion upon a sudden quarrel. The medical evidence has clearly indicated that there was only a single blow by the accused on the head of the deceased, which albeit is a vital part of his body. After giving the blow with the axe, the accused did not give any further blow on the deceased. It, thus, shows that the accused had not acted in an unusual manner. After giving the blow with the axe, the accused did not give any further blow on the deceased. It, thus, shows that the accused had not acted in an unusual manner. The injury inflicted by the axe on the head of the deceased was such that it was sufficient in the ordinary course of nature to cause death. It cannot be presumed the accused did not have the knowledge that the bodily injury inflicted by him by an axe was not sufficient in the ordinary nature to cause death of the deceased. 38. It is sought to be disputed, by arguing that the accused is entitled to be acquitted from the charge of fratricide, that the accused did not surrender at the Police Station after assaulting his elder brother. But, there are sufficient evidence on record to the effect that the accused had surrendered himself in the Police Station on the date of the incident itself, that is, on 23.04.2014. The three prosecution witnesses - P.W.1, P.W.2 & P.W.3 - had deposed that the accused after assaulting his elder brother, went to the Police Station and surrendered himself. The I.O. [P.W.11] had corroborated it by testifying that at about 06-00 p.m. on 23.04.2014, the accused appeared in Borghat Police Out Post and informed that he had killed his elder brother, Mato Horo, by assaulting him with an axe. The I.O. [P.W.11] further stated that in connection with such surrender, he registered General Diary Entry no. 360 dated 23.04.2014 and the accused was taken into custody. Though General Diary Entry no. 360 has not been exhibited the facts that [i] Ext.-1 - Seizure Memo; [ii] Ext.-2 - PME Report; [iii] Ext.-3 - Sketch Map of the place of occurrence; and [iv] Ext.-4 - Inquest Report; were prepared in reference to General Diary Entry no. 360 only, go to establish the act of surrender by the accused on 23.04.2014 and his custody since then. The fact of appearance of the accused in the Police Station after the alleged incident of instantaneous death of his elder brother after a sudden fight is admissible under Section 8 of the Evidence Act adding weight to the case of the prosecution only. Thus, the contention advanced on behalf of the accused- appellant disputing the act of surrender is found not acceptable. 39. Thus, the contention advanced on behalf of the accused- appellant disputing the act of surrender is found not acceptable. 39. Though there might not be any intention on the part of the accused to commit an offence at the beginning when he entered into the property of the deceased, but by his subsequent act of assault on the deceased had made the act as one of criminal trespass. 40. From the above discussion made and the reasons assigned therein, we are of the considered view that the case is one which comes within the scope and ambit of Exception 4 of Section 300, IPC. As the accused had caused such bodily injury, which led to the instantaneous death of his elder brother, and such death was caused by the accused without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the accused having taken undue advantage or acting in a cruel and unusual manner, he is guilty of the offence of culpable homicide not amounting to murder under first part of Section 304, IPC. Thus, the conviction of the accused under Section 302, IPC is not found sustainable in law. We, therefore, hold the accused-appellant to be guilty for the offence under the first part of Section 304, IPC. His conviction under Section 302, IPC is, therefore, set aside. 41. Having held the accused guilty of the offence under the first part of Section 304, IPC and taking into account the obtaining facts and circumstances in its entirety including the facts that at the time of committing the offence the accused was a youth having no prior criminal antecedents and that he immediately after causing the death had appeared in the Police Station prima facie suggestive of remorse, we are of the considered view that a sentence of 8 [eight] years of rigorous imprisonment will sub-serve the ends of justice. There is, however, no alteration as regards the amount of fine to be paid by him and the order as regards fine, as passed by the learned trial court, is maintained. Therefore, the sentence of the accused-appellant stands altered from imprisonment for life to rigorous imprisonment for 8 [eight] years. There is no alteration also in the Judgment and Order of conviction and sentence passed by the learned trial court is so far as the offence of criminal trespass is concerned. 42. Therefore, the sentence of the accused-appellant stands altered from imprisonment for life to rigorous imprisonment for 8 [eight] years. There is no alteration also in the Judgment and Order of conviction and sentence passed by the learned trial court is so far as the offence of criminal trespass is concerned. 42. The instant criminal appeal stands partly allowed to the extent indicated. It is observed that the period already undergone by the accused-appellant is to be set off as per Section 428, CrPC. 43. The jurisdictional District Legal Services Authority is to consider the matter of granting appropriate compensation to the victim in terms of the provisions contained in Section 357A, CrPC and the extant Victim Compensation Scheme, framed thereunder. 44. Before parting with the record, we wish to place our appreciation on record as regards the services rendered by Mr. Dutta, learned Amicus Curiae appearing for the accused-appellant and direct the Registry to make available to him just remuneration as per the notified fee structure applicable to the Amicus Curiae. 45. The records of the trial court are to be sent back forthwith.