Point of Law: Criminal Law - Murder/ Culpable homicide not amounting to murder. – Conviction modified - In order to avail the benefit of Exception IV of Section 300 of IPC, defence is only required to probabilise that offence was committed without premeditation, in sudden fight and in a heat of passion, upon a sudden quarrel and offender had not taken any undue advantage and had not acted in a cruel or unusual manner.

JUDGEMENT :

Suman Shyam, J

1. Heard Mr. N. Mahajan, learned counsel appearing for the appellant. We have also heard Ms. B. Bhuyan, learned APP, Assam, appearing for the State/respondent No.1. None has appeared for the informant/respondent no.2.

2. By the judgment and order dated 19/08/2017 passed by the learned Sessions Judge, Nagaon in Sessions (T-1) Case No. 296(N)/2013, the sole appellant in this case was convicted under section 302 of the IPC for committing the murder of deceased Mousum Phukan and sentenced to undergo rigorous imprisonment for life and also to pay fine of Rs. 10,000/-with default stipulation.

3. The prosecution case, in a nutshell, is that on 31/12/2012, at around 10-30 p.m. while the deceased Mousum Phukan, along with his two associates, viz. Pran Pratim Bhairagi and Jayanta Bora, were going to Nalbora village in a motor bike, accused Nabajyoti Rangdai @ Guddu had inflicted stab injury on Mousum Phukan with a sharp weapon, on his left arm, resulting into profuse bleeding. The injured victim was admitted at the Nagaon B.P. Civil Hospital but later on, he had succumbed to his injuries.

4. On 01/01/2013, Sri Diganta Phukan i.e. the Uncle of the deceased, had lodged an ejahar before the Puronigodam Police Out Post reporting the incident. Based on the FIR dated 01/01/2013, the incharge of Purnigodam Out Post had made GD entry No. 509 and thereafter, forwarded the FIR to the Samaguri Police Station for registering a case. Accordingly, Samaguri P.S. case No. 01/2013 was registered under Section 341/302 of the IPC and the matter was then taken up for investigation by the Police. Upon completion of the investigation, the I.O. had laid charge sheet against the accused/appellant under Section 341/302 of the IPC. The charge was read over and explained to the accused but since he had pleaded not guilty and claimed to be tried, the matter went up for trial.

5. During the course of trial, the prosecution side had examined as many as 16 witnesses which included two eye witnesses i.e. PWs 4 and 6. The accused had denied his involvement while recording his statement under section 313 Cr.P.C. However, the defence side did not adduce any evidence.

6. Upon appreciation of the evidence brought on record, the learned Sessions Judge, Nagaon had found the accused/appellant guilty of committing murder of the deceased Mousum Phukan and accordingly, convicted him and awarded the sentence, as mentioned above.

7. As noted above, the witnesses i.e. PWs 4 and 6 are the eye witnesses in this case and the conviction of the appellant is primarily based on their testimony. Therefore, let us first examine the evidence adduced by these two witnesses.

8. PW-4 Sri Pran Pratim Bairagi has deposed before the Court that the deceased Mousum Phukan was his classmate and he died on 31/1/2012. On the date of occurrence, at around 8-30 p.m., he along with the deceased and one Sri Jayanta Bora (PW-6) were sitting on a bench in front of a shop at Nalbora village wherefrom the accused person hails. At around 9-15 p.m., the accused came there, called him and started talking about his motorcycle ride. Around that time, the deceased Mousum Phukan had also called PW-4 and requested him to accompany him to Keyanpatty. Accused Guddu was annoyed by the interruption caused by the deceased Mousum Phukan and rebuked him by using some slang language involving the mother of the deceased. Deceased Mousum had also argued with the accused but Guddu had repeated the same slang referring to the mother of the victim. In course of such argument, the deceased came forward and gave two slaps to Guddu. At that stage, accused Guddu had left the place by saying that he would come back. After that, PW-4 along with the deceased and his other friend PW-6 had left for Keyanpatty on a motorcycle and after some time, they came back and stopped in front of the same shop so as to drop Jayanta Bora (PW-6). At that time the incident took place. This witness has stated that they were all riding in