B.D. Agarwal, J

1. The appellant herein has been convicted under section 304 Part-I of the Indian Penal Code, vide impugned judgment dated 27.8.2008, passed by the learned Sessions Judge, Dhemaji in Sessions Case No. 20(DH) of 2007. After his conviction, the appellant has been sentenced to undergo rigorous imprisonment for 7(seven) years with fine of Rs. 2000/- and in default of payment of fine, the appellant has been directed to undergo simple imprisonment for 2(two) months. Being aggrieved with the conviction and sentence, the convict has preferred this appeal.

2. Heard Mr. BD Konwar, learned counsel for the appellant and Mr. BB Das, learned Additional Public Prosecutor for the State. I have also gone through the impugned judgment and the evidence tendered by the prosecution as well the accused in the trial court.

3. As could be gathered from the record, both the accused and the injured are from the same village. The record further reveals that the incident had taken place after an altercation between the accused and the deceased over alleged damage of crops of the informant by pigs of the accused.

4. The incident took place on 10.10.2006 at about 9 am. At the relevant time, the accused met the deceased on public road and in the midst of altercation/argument, the accused kicked the deceased and, as a result, the deceased fell down on the road and sustained injuries on his head. Thereafter, the deceased was taken to a nearby Public Health Center and thereafter to Dhemaji Civil Hospital where he died at about 8 p.m.

5. The FIR was lodged by the father of the deceased. It was registered as Silapathar Police Station Case No. 169 of 2006 under section 341/302 IPC and after charge sheet was submitted, the accused was tried only for the offence of murder and after the trial he has been convicted under section 302 Part-I of the IPC.

6. To establish the offence of culpable homicide, the prosecution examined altogether ten witnesses. PW-1 is the father of the informant; PWs- 2, 3, 4, 5, 6, 7 and 8 are the co-villagers and independent witnesses; PW-9 is the autopsy doctor and PW-10 is the I.O. It may be also mentioned here that during the investigation, statements of PWs- 2 and 3 were also obtained under section 164 of the Code of Criminal Procedure.

7. The defence case was that the deceased had accidently fell on the ground, while driving his scooter, and sustained injuries on his fall on hard substances. To establish his defence the accused also examined himself as DW-1.

8. During the post-mortem examination, doctor had noticed multiple abrasions on the body and haematoma over the scalp and lacerated wound on the occipital region. Right side of the parietal region was found swollen and in the opinion of the doctor the death was caused due to traumatic head injury with subdural haematoma. In the cross-examination, doctor has admitted defence suggestion that the injuries found on the person of the deceased can also be caused while falling on hard object like stone.

9. Despite the admission of the doctor in the cross-examination that injuries can be caused due to fall on hard substance PWs 2 and 3 have categorically rejected this story. According to PW-2, at the relevant time, he was walking with the accused and at one place the deceased arrived near them and stopped his scooter. Thereafter, he saw the accused conversing with the deceased Durlov. For a while, PW-2 proceeded further and within a short time, he heard the shouting of the deceased and thereafter, the witness turned back and saw the deceased lying on the ground with bleeding injuries on his head. In this way, PW-2 has totally rejected the defence theory that the deceased had accidently fell down on the road.

10. PW-3 is another eye-witness of the incident. At the relevant time, he was going to drop his children to the school. On the way, he saw the accused assaulting the deceased by hitting him with a stone. In the cross-examination, PW-3 has, however, stated that the accused