The main legal point established in the judgment is that the circumstantial evidence, including the nature of injuries, the weapon used, and the manner of assault, sufficiently proved the intention to murder, and there was no scope for invoking Exception (4) to Section 300 IPC.

Asha Arora, J.

1. This appeal at the instance of the accused appellant is directed against the judgment and order of conviction and sentence dated 31st March, 2004 passed by the learned Additional Sessions Judge, 1st Fast Track Court, Midnapore in Sessions Trial Case No. XLIV of March, 2001, whereby the accused appellant was convicted for the offence punishable under section 302 of the Indian Penal Code (hereinafter referred to as the IPC) and sentenced to suffer imprisonment for life and to pay a fine of Rs. 10,000/- in default of which to suffer rigorous imprisonment for two years for the aforesaid offence.

2. The factual scenario of the prosecution case in brief is as follows:

On 14.2.1999 at about 11.00 P.M., the accused appellant surrendered at Lalgarh Police Station before the Officer-in-charge and gave a statement alleging that having learnt of his wife's illicit relation with a man named Totan alias Arup Betal, he decided to catch them red handed. With this object in view, on 14.2.1999 in the evening the accused left his house after informing his wife that he would be going to his aunt's house and would not return that day. After having gone for some distance, accused hid himself and at about 8.00 P.M. he saw Totan moving towards his house. The accused followed him and found that Totan entered his house and bolted the door from inside. While the accused was waiting outside near his house, about half an hour later, in the light of the torch the accused saw Totan coming out of the house and on seeing him Totan fled but the accused caught hold of him and started assaulting him with the torch. When the victim fell down, the accused went to his house and returned with a 'Katari' with which he inflicted repeated blows on the person of the victim in consequence of which he died on the spot.

3. On the basis of the statement of the accused which was recorded by S.I.B. Bhunia (P.W. 1), Salboni P.S. Case No. 11 of 1999 dated 15.2.1999 under section 302 of the IPC was registered against the accused appellant. Investigation into the case by S.I. Rakesh Chandra Mishra (P.W. 17) culminated in the submission of the charge sheet under section 302 IPC.

4. The case being a sessions triable one was committed to the Court of the Sessions Judge, Midnapore wherefrom it was transferred to the Court of the Additional Sessions Judge, 1st Fast Track Court, Midnapore for trial and disposal. The Trial Court framed the charge for the offence punishable under section 302 IPC against the accused/appellant who pleaded not guilty to the arraignment and claimed to be tried. In course of trial prosecution examined 18 witnesses and exhibited several documents.

5. Defence version as projected from the suggestions given to the prosecution witnesses in cross-examination as well as from the answers given by the accused in his examination under Section 313 Cr.P.C. is innocence and outright denial of the prosecution case.

6. On conclusion of trial the learned Additional Sessions Judge passed the impugned judgment and order of conviction and sentence as aforesaid.

7. The point for determination is whether the conviction and sentence of the appellant for the offence punishable under section 302 IPC is sustainable.

8. The main thrust of argument on behalf of the appellant is that the offence was committed in a fit of rage without premeditation so the case falls within Exception (4) to section 300 IPC. Learned counsel for the appellant sought to impress upon us that initially the accused appellant was not armed with any weapon. The alleged assault upon the victim was only with a torch. Subsequently, when the victim fell under the impact of the assault with torch, the accused went home and brought a 'Katari'. According to the learned counsel for the appellant, if the accused intended to kill the victim he would have come armed with a weapon. There being no intention to kill, the act attributed to the accused would not come within the offence of murder but would con