JUDGMENT :

JOYMALYA BAGCHI, J.

1. Learned lawyer for the appellant places informal paper books on record. Lower court records are also before us.

2. In view of the aforesaid preparation of formal paper books is dispensed with and with consent of the parties, appeal is taken up for hearing.

3. Appellant has assailed judgment and order dated 31.01.2018 passed by the learned Additional Sessions Judge, Fast Track 2nd Court, Jalpaiguri in Sessions Trial no. 13 of 2012 arising out of Sessions Case no. 61 of 2010 convicting the appellant for commission of offence punishable under section 302 IPC and sentencing him to suffer rigorous imprisonment for life and to pay a fine of Rs.2,00,000/- in default to undergo rigorous imprisonment for a further period of six months.

4. Prosecution case as alleged against the appellant is to the effect that on 03.10.2009 one Mati Roy had gone to catch fishes. While he was returning after catching fish, a quarrel broke out between the said Mati Roy on the one hand and appellant and one Biren Roy on the other hand over the issue of catching fish. In the course of quarrel Biren supplied a spade to the appellant who hit Mati on the head. As a result Mati fell down on the ground and died. Bharati Roy (PW1) wife of Mati lodged written complaint resulting in registration of Dhupguri P.S case no. 228 of 2009 dated 3.10.2009 under sections 302/34 IPC against the appellant and the said Biren Roy. In the course of investigation the spade was recovered from the spot.

5. Charge sheet was filed and charge was framed under section 302/34 IPC against the appellant and the said Biren Roy. They pleaded not guilty and claimed to be tried.

6. In the course of trial, prosecution examined 11 witnesses to establish its case and exhibited a number of documents. Post mortem report was exhibited on admission under section 294 Cr.P.C.

7. The defence of the appellant was one of innocence and false implication.

8. In conclusion of trial, the trial Judge by the impugned judgment and order dated 31.01.2018 convicted and sentenced the appellant as aforesaid. Biren Roy was acquitted of the charge levelled against him.

9. Mr. Jana, learned counsel for the appellant argues recovery of the weapon of offence i.e. spade is not marked in the sketch map. Pond where Mati Roy had gone to catch fish is not indicated by the sketch map. Hence, place of occurrence has not been proved beyond reasonable doubt. Without prejudice to the aforesaid, he contends incident occurred in the course of a quarrel over catching of fish. Appellant was unarmed and had been supplied weapon by Biren who has been acquitted. He had dealt a single blow and had no intention to commit murder. Hence, the offence may be scaled down to section 304 Part I IPC.

10. On the other hand, Mr. Bardhan, learned counsel for the State submits that PWs 1 to 5 and 7 are eye-witnesses. They saw appellant struck a blow on the head of Mati with a spade. As a result, victim died.

Post mortem report shows sharp penetrating cut injury over the left temporal region of scalp which corroborates the ocular evidence. Appellant had hit on a vital part of the body with a spade. Hence, ingredients of offence punishable under section 302 IPC are satisfied.

11. I have considered the evidence on record.

12. PW1 Bharati Roy is the wife of the victim. She deposed that her husband had gone to catch fish in the pond. While he was returning home, he had a quarrel with Manu. In the course of quarrel Biren supplied a spade to Manu and the latter hit her husband on the head. As a result, her husband fell down at the spot. He was taken to Jalpaiguri hospital where he was declared dead. She proved the written complaint which was scribed by her brother Monteshwar Roy (PW8). In cross examination, she admitted her husband was addicted to liquor.

13. PW 2 Umesh Chandra Roy is the younger brother of Manu. He has corroborated her sister-in-law PW1. He further stated police seized a spade with blood stains and blood stained earth un