Judgment & Order : S.K. Medhi, J. The instant appeal has been preferred under Section 374 (2) of the Code of Criminal Procedure, 1973 [corresponding to Section 415 of BNSS, 2023] against the judgment and order dated 05.03.2020 passed by the learned Sessions Judge, Bongaigaon in Sessions Case No. 11 (BNG) / 2018 arising out of GR Case No. 769 / 2014 convicting the accused / appellant under Sections 302/341/323 of the IPC [corresponding to Sections 103/126/115 of BNS] and sentencing him to suffer imprisonment for life under Section 302 of the IPC [[corresponding to Section 103 BNS] and fine of Rs.10,000/-, i/d of payment of fine to suffer Simple Imprisonment for 2 months, also sentencing to SI for 15 days and fine of Rs.500/- for offence under Section 341 of the IPC [corresponding to Section 126 BNS] i/d of payment of fine suffer Simple Imprisonment for 5 days and further sentencing to undergo SI for 6 months and to pay a fine of Rs.1000/- i/d of payment of fine suffer SI for 15 days under Section 323 of the IPC [corresponding to Section 115 BNS]. 2. The criminal law was set into motion by lodging of an Ejahar on 02.09.2014 by PW 1, who is the elder brother of the deceased. It has been alleged that on the previous evening at about 9:00 pm, the accused no. 1 (appellant) had come riding a bicycle in a high speed and careless manner and had almost dashed a group of persons and on being scolded, he ran away to his home and after some time, accompanied by the other accused persons, came with sharp weapons such as dao, axe and iron rods and assaulted randomly. In the said assault, when the deceased had tried to intervene, he was also assaulted randomly with the backside of the axe and thereby caused injury. Injury was also caused to another person, Jaleswar Nath with iron rod and the informant had also sustained injuries on his head, hand and various parts of his body. His younger brother (deceased) was accordingly taken to the Bongaigaon Civil Hospital when his condition was found to be critical and he had undergone treatment. Subsequently, on 13.09.2014, his younger brother had died and accordingly on 15.09.2014, Section 302 was added to the charges. His younger brother (deceased) was accordingly taken to the Bongaigaon Civil Hospital when his condition was found to be critical and he had undergone treatment. Subsequently, on 13.09.2014, his younger brother had died and accordingly on 15.09.2014, Section 302 was added to the charges. In the said Ejahar, three accused persons were named out of which accused Tilak Nath, who is the brother of the appellant was acquitted and accused Prafulla Kumar Nath, who is the father of the appellant was imposed fine. 3. The investigation was accordingly done and after completion of the same, the Charge-sheet was laid which was exhibited as Ext.- 7. Thereafter, the charges were framed and upon denial thereof, the trial had begun in which the prosecution had adduced evidence through 12 nos. of PWs. 4. PW 1 is the informant, Basanta Nath, who is the elder brother of the deceased and he had proved the Ejahar as Ext.- 1. In his examination, PW 1 had deposed that the appellant had taken part in the assault and had assaulted the lower abdomen of the deceased with the blunt side i.e. the backside of the axe. He had also deposed that the operation on the deceased was done in the Lower Assam Hospital, Bongaigaon and it was found that his kidneys got damaged and on 13.09.2014, the deceased had passed away. In the cross- examination, the contradictions sought to be put to the PW 1 were however denied. 5. PW 2 is Jaleswar Nath, who was also in the place of occurrence and had narrated that the appellant had carelessly and in a high speed taken his bicycle whereupon he was scolded and thereafter he had come back with the other two accused persons and had caused the assault. He was also himself injured in the said assault. He is also witness to the Seizure List by which the Material Ext.- 1 i.e. axe and Material Ext.- 2 i.e. iron crowbar were seized. In the cross- examination, however he had denied the contradictions sought to be put before him. 6. PW 3 is a tea stall owner, who had however deposed that he came to know about the incident later and therefore his deposition may not be very relevant. Similarly, PW 4, PW 5 and PW 7 are hearsay witnesses whose evidence may not be very relevant. 6. PW 3 is a tea stall owner, who had however deposed that he came to know about the incident later and therefore his deposition may not be very relevant. Similarly, PW 4, PW 5 and PW 7 are hearsay witnesses whose evidence may not be very relevant. As regards, PW 6, in his cross-examination he had clarified that he was not an eyewitness. PW 8 is an inquest witness. 7. PW 9 is the Doctor, who had treated the deceased. He had deposed that the deceased had developed Septicemia as a result of which he had expired. 8. PW 10 is the Doctor, who had conducted the Post-Mortem upon the deceased and the Post-Mortem Report was proved as Ext.- 5. In the opinion given by the PW 10, it was stated that the death was due to cardio respiratory failure due to septicemic shock. For ready reference the opinion is extracted herein below: “Opinion: In my opinion the cause of death is due to cardio respiratory failure due to septicemic shock due to multiple gut (intestinal) injury. It is ante mortem in nature. Ext 5 is the post mortem examination report wherein Ext 5 (1) is my signature.” 9 . PW 11 is the IO, who had done the investigation. He had deposed of the steps taken in the investigation including preparation of the sketch map which was proved as Ext.- 6 and submission of the Charge-sheet after completion of the investigation which was proved as Ext.- 7. In the cross-examination, he had deposed regarding the contradictions of the PW 1 and PW 2. 10 . PW 12 is the Doctor, who at that time was working as the Senior Medical and Health Officer, Civil Hospital, who had treated injured Basanta and Jaleswar, namely, PW 1 and PW 2. 11 . After completion of the evidence from the prosecution side, the implicating materials were placed before the appellant in his examination under Section 313 of the Cr.PC [corresponding to Section 352 BNSS] wherein he had denied the implications. It may be mentioned that in response to Question No. 14, an explanation was sought to be given that his father was injured in the mutual fight. However, no DWs were opted to be adduced. 12 . It may be mentioned that in response to Question No. 14, an explanation was sought to be given that his father was injured in the mutual fight. However, no DWs were opted to be adduced. 12 . Based on the aforesaid evidence and the other materials on record, the impugned judgment has been passed of conviction and sentence which is the subject matter of challenge in this appeal. 13 . We have heard Shri B. M. Choudhury, learned counsel for the appellant. We have also heard Ms. B. Bhuyan, learned Senior Counsel and Addl. PP, Assam assisted by Ms. R. Das, learned counsel for the State respondent. 14 . Shri Choudhury, the learned counsel for the appellant has submitted that the conviction under Section 302 of the IPC [corresponding to Section 103 BNS] is not sustainable inasmuch as the ingredients of Section 300 of the IPC [corresponding to Section 101 BNS] are not at all present. He has submitted that though the death had occurred, there was no intention or any knowledge on the part of the appellant to cause the death or that the injuries inflicted, even if it is assumed that the same was done by the appellant would not cause the death. He has also highlighted the aspect that in the Ejahar, it was stated that the accused persons had randomly assaulted the deceased and there was no specific allegation as such against the present appellant. He has also highlighted the aspect that though as per the prosecution, the appellant had an axe, it is the case of the prosecution itself that the blunt side of the axe was used and under those circumstances the absence of either intention or knowledge becomes crucial. He has submitted that under no circumstances either intention or knowledge can be inferred and the accused be held to be culpable. He has also submitted that it is a case of only one blow and the assault was not repeated. The aspect that the deceased had passed away after 14 days of treatment in the hospital has also been highlighted by stating that the injury inflicted may not be the sole reason for the death. 15 . In support of his submission, Shri Choudhury, the learned counsel for the appellant has relied upon the following decisions: i. (1999) 3 SCC 309 ( K. Ramakrishnan Unnithan Vs. State of Kerala ) ii. 15 . In support of his submission, Shri Choudhury, the learned counsel for the appellant has relied upon the following decisions: i. (1999) 3 SCC 309 ( K. Ramakrishnan Unnithan Vs. State of Kerala ) ii. 1994 Supp (3) SCC 680 ( Ramaswamy Vs. State of Tamil Nadu ) 16 . In the case K. Ramakrishnan Unnithan (supra), on the facts and circumstances a conviction under Section 302 of the IPC [corresponding to Section 103 BNS] was converted to one under Section 304 Part II of the IPC [corresponding to Section 105 BNS]. In the case of Ramaswamy (supra), the Hon’ble Supreme Court was dealing with a matter where there was a single injury on the abdomen. In the said case though the Hon’ble Apex Court had noticed that due to the stab injuries the intestine had protruded, it was held that there was no intention to cause the death and accordingly the punishment was converted from Section 300 to Section 304 Part II IPC . 17 . Shri Choudhury, learned counsel for the appellant accordingly submits that the impugned judgment and order is liable to be set aside and the appellant be acquitted. 18 . Per contra, Ms B. Bhuyan, learned APP has submitted that so far as the identity of the appellant is concerned, there is no manner of dispute as the appellant has been specifically named in the FIR by the PW 1 who himself was an eyewitness. She has also highlighted the aspect that PW 1 who had lodged the Ejahar was injured in the assault and therefore his trustworthiness and credibility should not be doubted. She has also submitted that the PWs were not armed and on the other hand, the accused persons were armed with rods, axe and iron crowbar. She has also submitted that vital part of the deceased was attacked which was the immediate cause of his death. The aspect of the time taken for cooling off after the initial scolding given to the appellant has also been highlighted by submitting that the appellant with his brother and father had come back to the place of occurrence after about ½ an hour and had caused the assault and therefore has attributed a planned intention to commit the offence. The aspect of the time taken for cooling off after the initial scolding given to the appellant has also been highlighted by submitting that the appellant with his brother and father had come back to the place of occurrence after about ½ an hour and had caused the assault and therefore has attributed a planned intention to commit the offence. She has also drawn the attention of this Court to the examination under Section 313 of the CrPC [corresponding to Section 351 BNSS] in which under Question No. 13, the appellant had chosen not to adduce any defence witness and under Question No. 14, he did not state anything regarding injuries to his father. The learned APP has also referred to the opinion of PW 10, the Doctor who had conducted the Post Mortem as per whom the septicemic shock was due to multiple gut injury. 19 . In support of her submission the learned APP has relied upon the following decisions: i. (2023) 1 SCR 241 (Prasad Pradhan & Anr. Vs. State of Chhattisgarh). ii. (2015) 1 SCC 286 ( B. D. Kunte Vs. Union of India ). 20 . In the case of Prasad Pradhan (supra), the Hon’ble Supreme Court was dealing with a case of similar nature where the death was caused after some delay of the assault and it has been held that the same will not diminish the culpability. 21. In the case of B. D. Kunte (supra), the aspect of grave and sudden provocation has been dealt with. In the said case, the earlier cases including the landmark case of K. M. Nanavati Vs. State of Maharashtra , reported in AIR 1962 SC 605 has been taken into consideration and has held that when there was a cooling off period, the Exception 1 to Section 300 IPC [corresponding to Section 101 BNS] pertaining to grave and sudden provocation will not apply. 22 . The learned APP has submitted that though the defence of grave and sudden provocation has not been specifically taken by the appellant, even if the same is considered for the interest of justice, it will not have any application inasmuch as the assault was in a premeditated manner. 23 . 22 . The learned APP has submitted that though the defence of grave and sudden provocation has not been specifically taken by the appellant, even if the same is considered for the interest of justice, it will not have any application inasmuch as the assault was in a premeditated manner. 23 . In his rejoinder, Shri Choudhury, the learned counsel for the appellant has submitted that the primary aspect of lack of intention to cause of death on the part of the appellant has been lost sight of by the learned Trial Court. He has also submitted that no prudent person would have the knowledge that by causing assault by the blunt side of an axe on the abdomen would cause death. 24 . The rival submissions have been duly considered and the materials placed on records have also been carefully examined. 25 . The version of the prosecution is that on the fateful evening i.e. 01.09.2014, the appellant was coming with his bicycle in high speed and had almost caused injuries to the PWs 1, 2 and few others who were on the road and on such incident, the appellant was scolded. Thereafter, the appellant had run home and after sometime had come back to the place of occurrence with his elder brother, Tilak Nath and father Prafulla Kumar Nath armed with axe, iron rod and crowbar and randomly assaulted the persons present and during such assault, the appellant had come to resist the same and at that moment the appellant was assaulted by the blunt side of the axe on the abdomen. The aspect of the PWs 1 and 2 suffering injuries have been proved by the prosecution. Though at the time of lodging of the Ejahar the aspect of involvement Section 302 IPC [corresponding to Section 103 BNS] was not there, however, on 13.09.2014 i.e. after about 13 days as the victim had expired, Section 302 of the IPC [corresponding to Section 103 BNS] was added to the charges on 15.09.2014 accordingly. 26 . The question which would arise for determination is as to whether a conviction under Section 302 of the IPC under the facts and circumstances of the case would be proper and sustainable. 27 . 26 . The question which would arise for determination is as to whether a conviction under Section 302 of the IPC under the facts and circumstances of the case would be proper and sustainable. 27 . The learned counsel for the appellant has strenuously argued that even assuming that the involvement of the appellant in causing the assault has been proved, the aspect of the intention to cause the death or the knowledge being present on the part of the appellant to cause the death of the deceased cannot be inferred at all. He has submitted that in the Ejahar itself as well as in the depositions of PWs 1 and 2, the nature of assault has been described to be random by all the accused persons and there was no specific allegation against the appellant. 28 . Be that as it may, it appears from the materials on record that the appellant was armed with an axe and the assault was made by the appellant on the deceased. It is however required to be noted that though the assault was made by an axe, it was the blunt side of the axe and the portion of the body where such assault was made was the abdomen. It is also required to be noted that as per the prosecution there was only one blow and the assault was not repeated. The medical evidence also suggest that the injury which had caused the death was the assault made on the abdomen by a blunt weapon and admittedly the death was not instantaneous but after 13 days from the death of the incident. The delay by itself would not diminish the culpability of the accused person as has been laid down in the case of Prasad Pradhan (supra) and what is required to be examined is the nature of the assault. As mentioned above, the use of the blunt side of the axe and the portion of the body where the assault has been made namely the abdomen are important aspects which are required to be taken into consideration. It is also important to note that the assault was not repeated and this has been verified by the medical evidence. As mentioned above, the use of the blunt side of the axe and the portion of the body where the assault has been made namely the abdomen are important aspects which are required to be taken into consideration. It is also important to note that the assault was not repeated and this has been verified by the medical evidence. It is also not the case of the prosecution that the assault was made on any vital parts of the body, like the head or the chest using the blunt side of the axe and it was only the abdomen. Under those circumstances, it may not be reasonable to come to the only inference that the assault was made either with the intention to cause death or with the knowledge that such assault is likely to cause death in all probability. 29 . It is a settled position of law that it is not only on the availability of the five exceptions that an offence would be culpable homicide not amounting to murder and the penalty prescribed for an offence under Section 299 [corresponding to Section 100 BNS] is not necessarily to be imposed only when the five exceptions are available. The aforesaid position has been explained in a catena of judgments. 30 . The Hon’ble Supreme Court in the case of Anda & others. Vs. The State of Rajasthan reported in AIR 1966 SC 148 has laid down as follows: “5. Section 300 tells us when the offence is murder and when it is culpable homicide not amounting to murder. Section 300 begins by setting out the circumstance when culpable homicide turns into murder which is punishable under S. 302 and the exceptions in the same section tell us when the offence is not murder but culpable homicide not amounting to murder punishable under S. 304. Murder is an aggravated form of culpable homicide. The existence of one of four conditions turns culpable homicide into murder while the special exceptions reduce the offence of murder again to culpable homicide not amounting to murder. We are not concerned with the exceptions in this case and we need not refer to them. … 7. ...The sufficiency of an intentional injury to cause death in the ordinary way of nature is the gist of the clause irrespective of an intention to cause death. We are not concerned with the exceptions in this case and we need not refer to them. … 7. ...The sufficiency of an intentional injury to cause death in the ordinary way of nature is the gist of the clause irrespective of an intention to cause death. Here again, the exceptions may bring down the offence to culpable homicide not amounting to murder.” 31 . Section 300 of the IPC [corresponding to Section 101 BNS] lays down 5 exceptions where culpable homicide would not amount to murder. However, it is settled law that an offence under Section 299 of the IPC [corresponding to Section 100 BNS] not to fall under the offence of murder under Section 300 would not be restricted only to the five exceptions. For a culpable homicide to be murder, it must come within the four provisions of Section 300. Murder is the gravest form of culpable homicide. At this stage, it will be beneficial to refer to the principles laid down by the Hon’ble Supreme Court in the case of State of AP Vs. Rayavarapu Punnayya & Anr. reported in AIR 1977 SC 45 . “21. From the above conspectus, it emerges that 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 will be convenient for it 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. If the answer to this question is prima facie found in the affirmative, the stage for considering the operation of Section 300, Penal Code, 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. 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. 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, depending, respectively, on whether the second or the third Clause of Sec. 299 is applicable. If this question is found in the positive, but the case comes within any of the Exceptions enumerated is Section 300, the offence would still be ‘culpable homicide not amounting to murder’, punishable under the First Part of Section 304, Penal Code.” 32 . Further in the case of Kishore Singh & Anr. Vs. The State of M.P. reported in AIR 1977 SC 2267 it has been laid down as follows: “11. The distinction between culpable homicide (Section 299, I.P.C.) and murder (Section 300, I.P.C.) has always to be carefully borne in mind while dealing with a charge under Section 302, I.P.C. Under the category of unlawful homicides fall both cases of culpable homicide amounting to murder and those not amounting to murder. Culpable homicide is not murder when the case is brought within the five exceptions to Section 300, I.P.C. But even though none of the said five exceptions are pleaded or prima facie established on the evidence on record, the prosecution must still be required under the law to bring the case under any of the four clauses of Section 300. I. P. C. to sustain the charge of murder. If the prosecution fails to discharge this onus in establishing any one of the four clauses of Section 300, I. P. C., namely, 1stly to 4thly, the charge of murder would not be made out and the case may be one of culpable homicide not amounting to murder as described under S. 299, I. P. C.” 33 . There is another aspect of the matter regarding the nature of the assault. Though the weapon alleged is an axe, the prosecution case is that only one blow was given, that too by the blunt side on the abdomen of the deceased and the same is also corroborated by the medical evidence. There is another aspect of the matter regarding the nature of the assault. Though the weapon alleged is an axe, the prosecution case is that only one blow was given, that too by the blunt side on the abdomen of the deceased and the same is also corroborated by the medical evidence. Though there is no strait jacket formula that where only a single blow is involved, there may not be an intention to cause death, it would be necessary to examine the particular facts and circumstances. In this connection it would be beneficial to refer to the case of Abani K. Debnath and Anr. Vs. State of Tripura reported in (2005) 13 SCC 422 wherein the Hon’ble Supreme Court on noticing that the death was caused by one blow of a dao in the spur of the moment which was preceded by a quarrel had converted the punishment from Section 302 of the IPC to 304 Part II. 34 . In the case of Pularu Vs. State of M.P. reported in AIR 1993 SC 1487 , the Hon’ble Supreme Court was dealing with a case where death was caused by a single blow with an agricultural equipment. It was held as follows: “7. That takes us to the nature of the offence. All the three eye-witnesses have spoken that the appellant dealt only one blow with the agricultural implement. Having regard to the time and the surrounding circumstances it is difficult to hold that he intended to cause the death of the deceased particularly, when he was not armed with any deadly weapon as such. As an agriculturist he must have been having a tabbal in his hands and if in those circumstances he dealt a single blow it is difficult to convict him by invoking clause (1) or (3) of Section 300, I.P.C. It cannot be said that he intended to cause that particular injury which unfortunately resulted in the fracture of bones. Therefore, the offence committed by him would be one amounting to culpable homicide punishable under Section 304, Part-II I.P.C. We accordingly set aside the conviction of the appellant under Section 302, I.P.C. and sentence of imprisonment for life awarded thereunder. Instead we convict him under Sec. 304, Part-II, I.P.C. and sentence him to undergo Rigorous Imprisonment for seven years. The appeal is partly allowed to the extent indicated hereinabove.” 35 . Instead we convict him under Sec. 304, Part-II, I.P.C. and sentence him to undergo Rigorous Imprisonment for seven years. The appeal is partly allowed to the extent indicated hereinabove.” 35 . We have also noted that in the cases of Ramakrishnan (supra) and Ramaswamy (supra) the Hon’ble Apex Court had converted the sentence from Sections 302 to 304 Part II and in the later case of Ramaswamy (supra), the situation is more or less similar wherein a single injury was made on the abdomen. We have also noted that in the said case the injury was by a sharp weapon in which the intestine had came out protruding and in spite of that the Hon’ble Supreme Court had held that the same cannot be inferred to be done to cause the death and therefore, the conversion was made. 36 . Though the learned APP had highlighted the aspect of lack of grave and sudden provocation, we are of the opinion that the same is not even taken as a defence and therefore we are not required to go and examine that aspect. It is in any case settled that when there is cooling off period the aspect of grave and sudden provocation as a defence would not apply. 37 . From the facts and circumstances discussed above, the intention of the appellant to cause death or even that he had knowledge that death in all likelihood would be caused by the injury inflicted cannot be readily inferred. 38 . Under the aforesaid facts and circumstances and the discussions made, we are of the view that the impugned judgment and order dated 05.03.2020 passed by the learned Sessions Judge, Bongaigaon in Sessions Case No. 11 (BNG) / 2018 arising out of GR Case No. 769 / 2014 is required to be modified and the conviction made is liable to be altered to one under Section 304 Part II of the IPC [corresponding to Section 105 BNS] which is accordingly done. Consequently, the sentence is altered to rigorous imprisonment for a period of 7 years with fine of Rs. 5000/- (Rupees Five Thousand) in default of which simple imprisonment for 2 months. The other direction regarding compensation under Section 357A CrPC [corresponding to Section 396 BNSS] shall however remain intact. 39 . The appeal accordingly stands partly allowed. 40 . Let the TCR be sent back.