IMPORTANT POINT
When the assailant gave only one blow which proved fatal, he would be liable u/s 304 Part I and not 302 IPC.

JUDGMENT

Prafulla C. Pant, J.

Leave granted.

2. This appeal is directed against judgment and order dated 19.10.2012, passed by Gauhati High Court in Criminal Appeal No. 115 of 2008 whereby said Court has affirmed the conviction and sentence recorded against the appellant, by the Additional Sessions Judge, West Tripura Khowai, in ST. 42 (ST/K) of 2008 in respect of offence punishable under Section 302 of Indian Penal Code (IPC).

3. We have heard learned counsel for the parties and perused the papers on record.

4. Prosecution story, in brief, is that on 17.06.2007 at about 10.00 a.m. an altercation took place between appellant Ranjit Sarkar and Anil Das (deceased) over draining out of rain water through paddy field in Village Tuichindrai. PW-1 Sabitri Das, PW-6 Rina Das and PW-11 Sumitra Das intervened in the quarrel between the two, and subsided the matter. At about 9.00 p.m. on the same day (17.06.2007), Anil Das accompanied by PW-2 Ajit Das, was returning from Tuichindrai market, and when they reached near the house of Ranjit Sarkar, he (Ranjit Sarkar) came from his house armed with wooden file and gave a severe blow on the head of Anil Das, as a result he got injured and fell down. PW-2 Ajit Das raised alarm and neighbours reached at the spot. The injured was immediately taken to Teliamura Hospital from where he was shifted to G.B. Hospital, but finally succumbed to his injuries on the next day. A First Information Report was lodged by PW-1 Sabitri Das with Police Station Teliamura which was registered as PS case No. 45 of 2007 relating to offence punishable under Sections 341/302 IPC. PW-16 S.I. Akhter Hossen investigated the crime. After taking the dead body in his possession, he got prepared the inquest report, through PW-14 A.S.I. Siba Prasad Sur. The dead body was sent in sealed condition for post mortem examination. The autopsy was conducted by PW-15 Dr. Ranjit Kumar Das on 18.6.2007, who recorded ante mortem injuries in the report (Ext. 5), and opined that the deceased had died of coma resulting from head injury caused by an impact of blunt object, sufficient to cause death in ordinary course of nature. After interrogating witnesses and on completion of investigation, charge sheet was filed by the Investigating Officer against the appellant before the Magistrate concerned. The case was committed to the Court of Sessions.

5. The Additional Sessions Judge, West Tripura, Khowai, after hearing the parties, framed charge in respect of offence punishable under Section 302 IPC against accused Ranjit Sarkar, who pleaded not guilty and claimed to be tried. On this prosecution got examined PW-1 Sabitri Das, PW-2 Ajit Das (eye witness), PW-3 Bimal Das, PW-4 Satish Sarkar, PW-5 Nirmal Sarkar, PW-6 Rina Das, PW-7 Uttam Das (all neighbours), PW-8 Suklal Malakar, PW-9 Mani Kanchan Chowdhary, PW-10 Dilip Sarkar, PW-11 Sumitra Das, PW-12 Sankar Das (neighbor), PW-13 Constable Kalidas Ghosh (who took the dead body for post mortem examination), PW-14 A.S.I. Sibaprasad Sur (who prepared the inquest report), PW-15 Dr. Ranjit Kumar Das (who conducted autopsy) and PW-16 S.I. Akhter Hossen (who investigated the crime).

6. Oral and documentary evidence appears to have been put to the accused Ranjit Sarkar under Section 313 of Code of Criminal Procedure, 1973, in reply to which he pleaded that the evidence against him is false, but adduced no evidence in his defence. The trial court after hearing the parties found that the charge of offence punishable under Section 302 IPC is sufficiently proved against the accused Ranjit Sarkar. Accordingly, he was convicted, and after further hearing, sentenced the convict to imprisonment for life and directed to pay fine of Rs.5000/-, in default of payment of which he was further directed to undergo rigorous imprisonment for a period of six months.

7. Aggrieved by said judgment and order dated 19.11.2008, the convict preferred appeal before Gauhati High Court, and the same was dismissed vide impugned order c