Amitava Roy, J.

1. This appeal witnesses a challenge to the judgment and order dated 13.9.2000 passed by the learned Sessions Judge, Morigaon in Sessions Case No. 16/1997 whereby the Appellants herein have been convicted under Section 302 of the Indian Penal Code ('IPC') and sentenced to suffer imprisonment for life and also to pay fine of Rs. 1,000 each, in default, to undergo R.I. for further six months. The Appellants are in jail since the above decision.

2. I have heard Mr. H.R.A. Choudhury, senior advocate assisted by Mr. A. Matin and Mr. LA. Hazarika, Advocates for the Appellants and Mr. K.A. Mazumdar, learned Public Prosecutor, Assam.

3. On a FIR lodged on 13.4.1995 by one Md. Chand Mia with the Officer in-Charge, Mayang Police Station alleging that the Appellant No. 2 had inflicted dagger injury in the chest of one Md. Nur Alam resulting in his death and further that the Appellant No. 1 and one Md. Akabor Ali had assaulted one Md. Hasen Ali, Mayong PS Case No. 23/1995 under Section 302/325/34, IPC was registered. In course of the investigation, Md. Akabor Ali absconded. On completion of the investigation, however, charge sheet was laid against the accused Appellants under Section 302/34, IPC. The case being triable exclusively by the Court of Sessions, it was committed to the court of the learned Sessions Judge, Morigaon. Charge was framed against the accused Appellant as above to which they pleaded "not guilty" and claimed to be tried.

4. In course of the trial that followed, the prosecution examined eight witnesses including the doctor who had performed the post mortem examination as well as the Investigation Officer. The statements of the accused Appellants were recorded under Section 313, Code of Criminal Procedure. The defence did not adduce any evidence. The impugned judgment and order followed.

5. Mr. Choudhury has urged that the evidence of the so called eye witnesses P Ws 2 and 5 being contradictory on material particulars, the prosecution had failed to prove the charge against the Appellants accused and, thus, their conviction and sentence is unsustainable in law. Without prejudice to the above, the learned senior counsel has contended that even assuming that some credence to the said witnesses vis-a-vis actual occurrence can be attributed, in the facts and circumstances of the case, as the incident admittedly was preceded by a quarrel between the parties, no intention of murdering the deceased can be ascribed to the Appellants accused and, therefore, their conviction under Section 302, IPC by no means can be sustained. In support of his contention, Mr. Choudhury has drawn the attention of this Court to the fact that the deceased was inflicted only one stab injury which according to him negated any murderous intention of the accused Appellants. The learned senior counsel, therefore, urged that without prejudice to the plea of the innocence of the accused Appellants their conviction be altered to one under Section 304, Part II, IPC and the sentence be reduced to the period already undergone by them.

6. Mr. Mazumdar in reply has urged that the evidence of the eye witnesses P Ws 2 and 5 being convincingly probative of the fact that the Appellants accused with an intention had caused the murder of the deceased, no interference with the impugned judgment and order is called for. He has dismissed the plea of want of intention of the Appellant accused, contending that even assuming that there was a quarrel between the parties preceding the same, the same by no means was enough to entitle the accused Appellants to avail the benefit of any exception under Section300 of the Indian Penal Code.

7. The rival submissions to be appropriately appreciated, the evidence on record needs to be marshalled.

8. PW1, Taslimuddin, Gaonburah of the village concerned is not an eye witness of the incident. He stated that he was told by Chand Miah PW3 and Hasen Ali, PW2 that the Appellant accused Saha Ali had stabbed the deceased with a