The court held that an assault that is not a premediated act and falls under the exception 4 to Section 300 IPC is punishable under Section 304 Part I IPC.

Tapash Mookherjee, J:

1. The judgment and order dated 23.06.2010 and 24.06.2010 passed by the learned Additional Sessions Judge, Fast Track Court-IV, Krishnanagar, Nadia, in Sessions Trial No. IX (7) 07, (Sessions Case No. 50 (6) 07) are under challenge in the present appeal. By the aforesaid order learned Trial Court convicted the Appellant Anehaque Sk. for the offence of murder under Section 302 I.P.C. and sentenced the Appellant to suffer R.I. for life and to pay fine of Rs. 1,000.00 (rupees one thousand only) I.D. to suffer S.I. for one year.

2. Prosecution’s case in short, is as follows:-

3. On 20.07.1999 one Anower Sk. son of Late Patai Sk. of village Mokampara under P. S. Kaliganj, District Nadia, submitted a written complaint at the Kaliganj P. S. and stated therein that on that day at about 5.45 a. m. when his father Patai Sk. was going towards the field for cultivation with his buffaloes there was a clash between those buffaloes and a buffalo of the accused Faju Sk. which stood tied up by the side of the road. A quarrel ensued in connection with that incident between Patai Sk. and the Appellant Anehaque Sk. and four other accused persons in the case and during such quarrel the Appellant Anehaque assaulted Patai Sk. with a spear while the other accused persons assaulted Patai Sk. with different kind of weapons. Patai Sk. sustained grievous injuries due to such assaults and he ultimately succumbed to his injuries, and the Appellant fled away.

4. Kaliganj P.S. Case No. 152/99 dated 21.07.1999 under Section 304/34 I.P.C. had been started on the basis of the aforesaid F.I.R. and after completion of investigation charge-sheet under Section 304/34 I.P.C. had been submitted against all the five accused persons.

5. Before commitment intimation was given to the committing court regarding the death of the accused Ajgar Sk. However, in the record of the committing court the case is shown as filed against the accused Ajgar Sk.

6. After commitment, the case had been transferred to the Court of learned Additional Sessions Judge, Fast Track Court-IV, Krishnanagar, Nadia, for trial.

7. Considering the materials collected during investigation a charge under Section 304/34 I.P.C. had been framed against the present Appellant Anehaque Sk. and three other accused persons namely, Faju Sk., Majibar alias Muji Sk. and Nijam Kha. All the accused persons denied the charge and pleaded their innocence.

8. Prosecution examined as many as eleven witnesses. Prosecution also proved some documents which had been marked Exhibit- 1 to 8. Considering the evidence, thus produced by the prosecution, learned Trial Court found the Appellant guilty of the charge under Section 302 I.P.C. and hearing the Appellant on the point of sentence passed an order sentencing the Appellant to suffer R.I. for life and to pay fine of Rs. 1,000.00 (rupees one thousand only) I.D. to suffer R.I. for one year. Learned Trial Court found the other accused persons facing trial not guilty of the charge under Section 302/34 I.P.C. and accordingly acquitted them.

9. Being dissatisfied with and aggrieved by the aforesaid judgment of conviction and order of sentence the accused Anehaque filed the present appeal.

10. Learned Counsel for the Appellant has submitted that in the F.I.R. names of several persons have been named as the eyewitnesses of the incident. Some of them have been examined also by the prosecution but most of them denied having any knowledge about the incident of murder in question and hence the entire case of the prosecution is false. He further argued that P.W.- 1 and 10 who are claimed to be the eyewitnesses have long standing enmity with the family of the accused persons and hence their evidence should not be accepted as true. He further added that the injuries found in the body of Patai Sk. may be caused by accidental fall as stated by the doctor. The further contention of the learned Counsel for the Appellant was that assuming the case of assaults has be