The intention of the accused at the time of the assault determines the applicable section of the IPC for conviction.

A.H. Saikia, J.

1. Heard Mr. S. Chakraborty, learned Counsel for the Appellant. Also heard Mr. D. Sarkar, learned P.P. appearing for the State of Tripura.

2. The legality and validity of conviction of the Appellant under Section 302, IPC and resultant sentence to undergo rigorous imprisonment (for short, 'the R.I') for life and a fine of Rs. 100/- in default to undergo another period of R.I. for one month handed down by the learned Sessions Judge, North Tripura Kailashar on 27.6.97 in Sessions Trial No. 3 (NT)/K/97 has been questioned in the instant Criminal Appeal.

3. Necessary facts in short compass may be recapitulated. The P.W.-15, Gopal Sinha, Officer-In-Charge, Fatikroy Police Station at about 5.40 a.m. on 15.9.96 when he went to Kumarghat Hospital on being informed by P.W.-13, Chandra Kumar Roy about the occurrence of the instant incident, recorded the statement, which was treated as an FIR, of P.W.-1, Shri Manik Das. Sri Das, set up by the prosecution as the informant, stated that at about 2/2.30 a.m. in the night of 15.9.96 on hearing an alarm call coming from his own house, he woke up with a view to observe as what the matter was and he along with his wife, P.W.-5, Smti Sabitri Das proceeded from his own house and saw a girl of their locality namely Dipali Chakraborty, P.W.-14 calling for one Smti Madhabi Das, P.W.2, asking her to come out and see Babul Das (the deceased). Then he and his wife came and asked Dipali about what did happen, then she asked them to come and see. On going there, they saw Babul was lying with bleeding injury inside a bush beneath a Jam tree standing 10/12 cubits south of Madhabi's house. He was groaning and his intestine came out from the stomach. After seeing such condition of Babul, he called the people of the locality. When he asked Babul, he said that Sajal, the Appellant, dealt a dagger blow. In the meantime, he sent some persons to Natunbazar for bringing a vehicle. According to him, the Appellant stabbed Babul Das to death about the affair relating to a girl. Babul died on the way to the hospital.

4. On the basis of the said statement which was scribed by P.W.-15 as stated by P.W.-1, the police started investigation and arrested the Appellant on 4.10.96.

5. On completion of the investigation, the police charge-sheeted the Appellant under the above-mentioned Section and he was sent to trial.

6. Before the trial court i.e. the Court of Sessions to which the case was committed, the prosecution in order to bring home the aforesaid charge examined as many as 16 witnesses including P.W. 10, the Doctor who conducted autopsy on the dead body of the deceased Babul Das and P.W. 16, the Investigating Officer (for short, 'the I.O.'). Prosecution also proved various documents including inquest report, seizure list, etc. as Ext. P.-2, P.-3 respectively.

7. The Appellant was examined under Section 313 Code of Criminal Procedure wherein he took the plea of alibi and pleaded not guilty to the charge and claimed to be tried.

8. The learned Sessions Judge upon appreciation of the material evidence on record and upon hearing the learned Counsel for the parties, came to the finding that the prosecution successfully proved the case against the Appellant beyond reasonable doubt and convicted and sentenced him accordingly as indicated above.

9. Challenging the impugned conviction and sentence, Mr. Chakraborty, learned Counsel for the Appellant has forcefully argued that the learned trial Court committed a manifest error in law and on facts while appreciating and weighing the evidence adduced by the prosecution. The learned Judge misread and mis-interpreted the testimony of P.W.-14 who was projected by the prosecution as the sole eye witnesses. Referring to her testimony, it is contended by learned Counsel that in her evidence, she was categorical to the extent that she saw both the Appellant and the deceased fighting on the back side of her house each other free hand. When she intervened to stop them, the de