JUDGMENT : [Y. Longkumer, J.] 1. Heard Mr. N. J. Das, learned Amicus Curiae for the appellant. Also heard Ms. B. Bhuyan learned Senior Counsel & Additional Public Prosecutor Assam appearing for the State respondents. 2. The instant appeal is directed against the judgment and order dated 19.07.2019 passed by the Additional Session Judge (FTC), Sonitpur, Tezpur in Session Case No. 69/2018 whereby the appellant has been convicted for committing the murder of Suraj Das under Section 302 IPC for life and fine of Rs 10,000/- with a default clause. And also rigorous imprisonment of a period of 3(three) months for offence under Section 447 IPC. 3. The prosecution case, in a nutshell, is that the appellant had entered into the house of the deceased at around 6:30 pm on 27.12.2017 and had cut the stomach of the deceased with a “Kolam Kotari”. The accused fled away and the deceased was taken to Tezpur Medical Hospital where he passed away. On 28.12.2017, the informant/wife of the deceased had lodged an FIR before the O.C Rangapara P.S. and the same was registered under Section 447/302 IPC. As per the usual procedure, the police took up the matter for investigation and thereafter submitted chargesheet against the appellant under Section 447/302 IPC. Charge was framed against the appellant u/s 447 and 302 IPC on 22.05.2018, and it was read over and explained to him. However, since the appellant pleaded not guilty and claimed to be tried, the matter went up for trial. 4. In order to bring home the charges brought against the appellant, the prosecution side had examined as many as 9 witnesses including the Doctor i.e. PW/9 who had conducted the post mortem examination and the I.O. of the case being PW/8. The defence also examined the wife of the appellant as DW 1. The prosecution had relied mainly upon the following; (i) There are two direct eye witnesses in the present case. (ii) The weapon used in the incident was discovered on being led by the appellant. (iii) The motive behind the offence is present and the nature of injuries described in the post mortem aligns with the seized weapon. 5. The prosecution had relied mainly upon the following; (i) There are two direct eye witnesses in the present case. (ii) The weapon used in the incident was discovered on being led by the appellant. (iii) The motive behind the offence is present and the nature of injuries described in the post mortem aligns with the seized weapon. 5. Upon examining the evidence available on record, the learned trial court was of the view that the prosecution had succeeded in establishing the case against the appellant and proved the charge brought against the appellant under Section 302/447 IPC beyond all reasonable doubts and accordingly convicted and sentenced the appellant. 6. Assailing the impugned judgment and order dated 19.07.2019 learned Amicus has submitted that as per the testimony of PW/1 and PW/2, the deceased was cooking food in his house at the time of the incident. At that time the appellant came to his house and there was an altercation between the appellant and the deceased. Learned counsel for the appellant has projected a case that there was a quarrel between the appellant and the deceased at that point of time and in the sudden fight which ensued, the deceased who was holding a kitchen knife was injured by the same in the scuffle. Learned counsel for the appellant has tried to convince the court that the present case will come under Exception 4 to section 300 IPC. Learned counsel has submitted that the injury to the deceased was committed without pre meditation in a sudden fight, arising from a sudden quarrel and therefore, submits that the present conviction under 302 IPC may be altered to 304 IPC. 7. Ms. B. Bhuyan, learned Senior counsel and Additional P.P on the other hand has argued that the prosecution has led sufficient evidence to establish the fact that the appellant had committed the offence under Section 302/447 IPC. She has submitted that there are two eye witnesses being PW/1 and PW/2, whose testimony is corroborated by the post mortem report along with the testimony of the PW-9/M.O and also the seizure of one long dao with curved forepart about 12’’ inches long. She has submitted that the testimony of DW/1 also supports the prosecution case. She has submitted that there are two eye witnesses being PW/1 and PW/2, whose testimony is corroborated by the post mortem report along with the testimony of the PW-9/M.O and also the seizure of one long dao with curved forepart about 12’’ inches long. She has submitted that the testimony of DW/1 also supports the prosecution case. Besides the said submission, learned Additional P.P. has also relied on two decisions of the hon’ble Supreme Court in the case of : VIRSA SINGH Vrs STATE OF PUNJAB, AIR 1958 SC 465 and SHAHAJA @ SHAHAJAN ISMAIL MOHD, SHAIKH Vrs STATE OF MAHARASHTRA, (2022) 12 S.C.R 196 . 8. Learned Addl P.P. relying on the aforementioned cases, states that the present case is one which falls squarely under Section 300 IPC as the bodily injury is present, the nature of the injury has been proved, it is proved that there was an intention to inflict the particular injury since it was not accidental or un-intentional, and the injury is sufficient to cause death in the ordinary course of nature; and these four elements having being established by the prosecution, the offence is murder under Section 300 IPC. Relying on the case of Shahaja @ Shahajan (supra) ld Addl P.P has emphasised on the value of eye witness evidence. 9. We have considered the arguments advanced by the learned counsel for both sides, and have examined the materials available on record. As noted above, there are two eye witnesses to the occurrence. One is PW/1, the wife of the deceased and the other is PW/2, the brother of the deceased. 10. PW/1 had deposed before the court that the occurrence took place about six months back at around 6:30 pm. At that time her husband Suroj Das was cooking food in the house and the appellant came to their house and called her husband, and her husband came out from the house. PW2/Nirmal Das the brother of her husband also came out from the house and then the appellant assaulted her husband by means of a knife (Kolom Kotari) on his stomach, the appellant tried to enter the house but seeing her and her brother-in-law Nirmal Das, the appellant ran away. Somebody called an ambulance and her husband was taken to the hospital where he died. She proved the FIR as Ext/1 and identified her thumb impression therein. 11. Somebody called an ambulance and her husband was taken to the hospital where he died. She proved the FIR as Ext/1 and identified her thumb impression therein. 11. On being cross examined the PW/1 stated that she did not know about any dispute between the appellant and her husband regarding the allegation that her husband committed rape upon the daughter of the appellant. She denied the suggestion that her husband went out of the house with a knife to attack the appellant, and that during the incident her husband got the injury accidently. She also denied the suggestion that her husband was injured by means of his own knife. 12. PW/2 is the brother of the deceased. The PW/2 deposed that the informant is his sister-in-law and the deceased is his brother and the occurrence took place on 27.12.2017 at around 6:30 pm. At that time his brother was cooking food in the house and he was also present in the house at that time. The appellant came to the house and called his brother and his brother came out from the house. Then the appellant assaulted the deceased with a knife (Kolom Kotari) on his stomach and he saw the incident. He deposed that the appellant tried to enter the house but upon seeing him the appellant ran away. Somebody called an ambulance and his brother was taken to Tezpur Medical college hospital and his brother died on the way. 13. In his cross examination, PW/2 stated that the appellant is having grown up daughters in his house but he had not committed rape upon the daughter of the appellant. He denied the suggestion that when the appellant came to the house of the deceased, his deceased brother came out with a knife and attacked the appellant. He denied the suggestion that during the incident his brother got injured by his own knife accidently. 14. PW3 is a neighbour of the deceased. He deposed that the occurrence took place on 27.12.2017 at about 6:30 pm to 7:00 pm. He heard noise in the courtyard of the deceased and rushed to the P.O and saw the appellant with a knife in his hand. On being asked the appellant himself said that he had cut the deceased. PW3 is a neighbour of the deceased. He deposed that the occurrence took place on 27.12.2017 at about 6:30 pm to 7:00 pm. He heard noise in the courtyard of the deceased and rushed to the P.O and saw the appellant with a knife in his hand. On being asked the appellant himself said that he had cut the deceased. On being cross examined PW/3 stated that he reached the spot only after the incident had happened and he had not seen the incident of assault by the appellant on the deceased. 15. PW/4 stated that he had heard from the family members of the deceased that the appellant had cut the deceased with a knife (Kolom Kotari). In his cross examination he said that he had not seen the occurrence and does not know as to how the deceased got injured. 16. PW/5 is a seizure witness. He deposed that the deceased was his nephew and the incident took place on 27.12.2017 at around 6:30pm to 7:00 pm. At that time he was away for meeting at Namonigaon. Therefore, on the next date when the police came, the wife of the appellant brought a dao and police seized the same. He proved his signature in the seizure list Ext 2 as Ext 2(1). He identified the seized dao as MAT Ext 1; he also proved his signature in the inquest report as Ext 3(1). On being cross examined PW/5 stated that the MAT Ext 1/seized dao was brought by the wife of the appellant and police had seized the same. 17. PW/6 stated that the informant had told him that the appellant came to their house and called her husband and when the deceased came out the appellant assaulted him with a knife (Kolom Kotari). The next morning he heard that the deceased had died. In his cross examination, he stated that he has not seen the incident of assault and he stated that the appellant is having several daughters. 18. PW/7 deposed that he knew the deceased. And the brother of the deceased had told him that the appellant assaulted his brother with a knife (Kolom Kotari). On being cross examined he stated that he had not seen the occurrence of assault. 19. PW/8 is the I.O. of the case. 18. PW/7 deposed that he knew the deceased. And the brother of the deceased had told him that the appellant assaulted his brother with a knife (Kolom Kotari). On being cross examined he stated that he had not seen the occurrence of assault. 19. PW/8 is the I.O. of the case. He deposed that on 27.12.2017, information was received from VDP Secretary of Namgoon TE over the phone that one Shri. Suresh Baraik had stabbed one Suraj Das. Accordingly, he went to the place of occurrence. He recorded the statements of witnesses and drew the sketch map of the place of occurrence. On the next date, he received information that the appellant had surrendered at Chariduar P.S and accordingly, he went there and arrested the appellant. During interrogation, the appellant disclosed that the weapon (Kolom Kotori) by which he committed the crime is kept in his house and he instructed his wife over the phone to hand over the same. Accordingly, he went to the house of the appellant and seized the knife on being produced by the wife of the appellant. He has exhibited the seizure list as Ext 2 and Ext 2(2) as his signature. He has also proved the MAT Ext/1 which is the seized Dao. In his cross examination, PW 8 stated that during the investigation he has seized a dao and not a knife. He confirmed that he has seized the MAT Ext/1 as produced by the wife of the appellant. 20. PW/9 stated that on 08.01.2018 she was posted as Joint Director of Health Services’ Sonitpur, Tezpur. She received the post mortem report of Suraj Das conducted by Dr Ankur Bikash Borah done on Police requisition vide GD entry No. 433 dated 27.12.2017. Dr Ankur Bikash Borah had resigned from service. She deposed that on examination Dr Ankur Bikash Borah had found the following: A male dead body of average build of age 25 years with rigor mortis present. A lacerated injury of size 10 x 2 cm dept upto peritoneum in the middle of abdomen with expose stomach and intestine. Lacerated injury is also seen in the stomach of 5 x 1 cm. Laceration of spleen is also present. Abrasion of size 1 x 2 cm is present in the Rt knee and abrasion of size 1 x 3 cm in left knee. Stomach and its contents: Lacerated semi digested food particles. Lacerated injury is also seen in the stomach of 5 x 1 cm. Laceration of spleen is also present. Abrasion of size 1 x 2 cm is present in the Rt knee and abrasion of size 1 x 3 cm in left knee. Stomach and its contents: Lacerated semi digested food particles. Other organs are healthy. Injuries are ante-mortem in nature. After post mortem report the doctor has opined that" in my opinion, cause of death is due to shock and haemorrhage as a result of injuries sustained as described and caused by sharp cutting weapon. Time since - 12 - 24 hours." The post mortem report was signed by the doctor on 28-12-2017. After perusal of post mortem report I agreed with the opinion and signed the post mortem report on 08-01-2018. Ext.7 is my Post Mortem Report and Ext.7(1) is the signature of Dr Ankur Bikash Borah and Ext. 7(2) is my signature. 21. DW/1 is the wife of the appellant. She deposed that the deceased used to tell her daughter often that he will marry her. Whenever he met her on the road, he used to disturb her. On the day of the incident a quarrel had taken place and at about 6:00 pm when she was cooking rice she heard that a quarrel had taken place between the deceased and her husband and that the deceased had sustained cut injuries. She went running and found her husband on the road with a “Kolom Kotari”/pruning knife in his hands. Anticipating that the quarrel might continue further she snatched the knife from her husband and returned home. Her husband directly went to the police station and on reaching the police station she met her husband there. She deposed that the quarrel erupted as the deceased used to talk filthy with her daughter. In her cross examination she stated that she had never spoken to the wife of the deceased that he used to disturb her daughter often and she had not lodged any complaint with the police station in connection with the harassment meted out to her daughter. She only told the deceased on three occasions not to disturb her daughter. 22. The appellant in his 313 CrPC statement stated that the deceased use to tease his daughter and say that he will rape his daughter. She only told the deceased on three occasions not to disturb her daughter. 22. The appellant in his 313 CrPC statement stated that the deceased use to tease his daughter and say that he will rape his daughter. On the day of the occurrence his wife told him that he could not do anything about this and therefore, he got enraged and immediately took a lathi and went to the house of the deceased in order to beat him. He shouted and the deceased came out and the two of them entered into an altercation. At that time the wife of the deceased came out holding a dao (Kolom Kotari MAT Ext/1). Then the deceased tried to take the dao from his wife declaring that he will stab him. He got frightened and throwing his lathi, he also got hold of the knife, the three of them started pulling the knife and at that moment he could snatch away the knife and in the process the sharp side of the knife touched the abdomen of the deceased and he received the injury. 23. In a criminal case, involving the offence of murder punishable under Section 302 IPC it is required to prove that a death had occurred. In the present case, the death of Suraj Das had occurred which has been proved beyond any doubt. Thereafter, it has to be proved that it was homicidal in nature and not a natural death or a suicide. In the present case there is sufficient medical evidence on record to show that the death was homicidal. The injury caused on the stomach was sustained and caused by a sharp cutting weapon according to the post mortem report which was duly proved by PW/9, who was the controlling officer of the Doctor who conducted the post mortem on the dead body of the deceased. Thus, there is no doubt about the cause of death and that it was homicidal in nature. 24. This Court now has to consider who had caused the fatal injury. PW/1 is a natural eye witness as she is the wife of the deceased and she was in the house when the incident happened. The deposition of the PW/1 remained intact during the cross examination. 24. This Court now has to consider who had caused the fatal injury. PW/1 is a natural eye witness as she is the wife of the deceased and she was in the house when the incident happened. The deposition of the PW/1 remained intact during the cross examination. The evidence of PW/1 is further corroborated by the evidence of PW/2 who is the brother of the deceased and was also present in the house at the time of the incident. There is no reason to discredit the testimony of PW/1 and 2. In the case of Shahaja @ Shahajan, (supra) the Hon’ble Apex court stated: “28. To put it simply, in assessing the value of the evidence of the eye- witnesses, two principal considerations are whether, in the circumstances of the case, it is possible to believe their presence at the scene of occurrence or in such situations as would make it possible for them to witness the facts deposed to by them and secondly, whether there is anything inherently improbable or unreliable in their evidence. In respect of both these considerations, the circumstances either elicited from those witnesses themselves or established by other evidence tending to improbabilise their presence or to discredit the veracity of their statements, will have a bearing upon the value which a Court would attach to their evidence. Although in cases where the plea of the accused is a mere denial, yet the evidence of the prosecution witnesses has to be examined on its own merits, where the accused raise a definite plea or puts forward a positive case which is inconsistent with that of the prosecution, the nature of such plea or case and the probabilities in respect of it will also have to be taken into account while assessing the value of the prosecution evidence. 29. There is nothing palpable or glaring in the evidence of the two eye- witnesses on the basis of which we can take the view that they are not true or reliable eye-witnesses. Few contradictions in the form of omissions here or there is not sufficient to discard the entire evidence of the eye-witnesses.” 25. There is nothing improbable or unreliable in the evidence of PW/1 and 2. The testimony of PW/1 and 2 is further corroborated by the post mortem report and the seizure list/ext 2 and the MAT Ext 1. Few contradictions in the form of omissions here or there is not sufficient to discard the entire evidence of the eye-witnesses.” 25. There is nothing improbable or unreliable in the evidence of PW/1 and 2. The testimony of PW/1 and 2 is further corroborated by the post mortem report and the seizure list/ext 2 and the MAT Ext 1. The defence could not create any doubt with regard to the presence of PW/1 and 2 at the place of occurrence. The PW/5 is a seizure witness but has corroborated the fact that the police seized the dao/MAT Ext/1 from the wife of the appellant. The PW8/I.O had categorically stated in his examination-in-chief that the Kolom Kotari/MAT Ext/1 was seized on being led to discovery by the appellant. In the FIR too the informant/PW1 had categorically stated that the appellant had cut her husband’s abdomen with a kolom Kotari. In fact the DW/1 has also supported the prosecution case by deposing that she snatched away the Kolom Kotari from the appellant just after the incident and she has not denied the seizing of the said Kolom Kotari by the police from her. 26. The testimony of PW/1 and 2 who are the eye witnesses can sustain the charge that it was the appellant who had cut the deceased in the stomach on 27.12.2017. We therefore, come to the conclusion that it was the appellant who had caused the injury leading to the death of Suraj Das. Thus it is held that the appellant was responsible for the homicidal death of Suraj Das. 27. The next issue to be considered is whether the said culpable homicide would amount to murder punishable under 302 IPC or homicide not amounting to murder which is punishable under Section 304 IPC. In the case of VIRSA SINGH Vs STATE of PUNJAB (Supra) it was held by the Supreme Court that whether the injury intended by the accused and actually inflicted by him is sufficient in the original course of nature to cause death or not, must be determined in each case on the basis of the facts and circumstances. In the case of VIRSA SINGH (Supra) it was held by the Supreme Court that the injury caused was the result of blow with a knife in the stomach which was given with such force that the weapon had penetrated the abdomen and had injured the bowels. In the case of VIRSA SINGH (Supra) it was held by the Supreme Court that the injury caused was the result of blow with a knife in the stomach which was given with such force that the weapon had penetrated the abdomen and had injured the bowels. According to the Doctor the injury was sufficient in the original course of nature to cause death. Therefore, in the absent of any circumstances to show that the injury was caused accidently or unintentionally it had to be presumed that the accused had intented and caused the inflicted injury and the condition of clause (3) of Section 300 IPC were satisfied. In the instant case too the weapon used was a long dao measuring 12’’ inches long with a curved forepart. The injury caused was such that there was laceration injury on the stomach of 10x2 cm deep up to the peritoneum in the middle of the abdomen, exposing the stomach and intestines. Laceration of spleen was also present. According to Butterworths Medical dictionary, the ‘peritoneum’ is the membrane which lines the whole abdomen cavity and covers the abdomenal viscera. Therefore, the wound was given with such force with the weapon had penetrated the abdomen and the peritoneum and had injured the internal organs like the spleen and intestine according to the Dr/PW/9. All these injuries were sustained and caused by a sharp cutting weapon according to the post mortem report. The medical evidence on record fully corroborates the ocular evidence. 28. The appellant had left his house carrying the said kolom Kotari in his hand which means that it has to be presumed that the appellant had intended to cause the injury to the deceased. From the evidence it has emerged that the motive was also there. Basing on the entire evidence available before the Court starting from the FIR, the testimony of PW/1, 2, 5, 8, 9, DW/1, the seizure list, and the post mortem report, we are of the view that the Exception 4 to Section 300 IPC is not applicable in the present case. It is trite law that to bring the case under Exception 4 of Section 300 IPC there should be absence of premeditation; there should be a sudden fight of quarrel; and the act should have been done in the heat of passion. It cannot be said that these conditions were present in the instant case. It is trite law that to bring the case under Exception 4 of Section 300 IPC there should be absence of premeditation; there should be a sudden fight of quarrel; and the act should have been done in the heat of passion. It cannot be said that these conditions were present in the instant case. 29. For the reasons mentioned hereinabove, we hold that there is no merit in the appeal. The appeal is accordingly, dismissed. Send back the TCR. 30. We put our appreciation on record for the assistance rendered by Mr. N. J. Das, learned Amicus Curiae and Registry shall make the remuneration to him as per the notified fees. 31. The concerned District Legal Services Authority is directed to award adequate compensation to the victim after enquiry under section 357A CRPC and the Victim Compensation Scheme framed there under.