The main legal point established in the judgment is the application of exception 4 to section 300 of the IPC to determine the nature of the accused's act and the appropriate charge under the IPC.

JUDGMENT :

MIR ALFAZ ALI, J.

1. Heard Mr. M.H. Choudhury, learned counsel for the appellant and Ms. B. Bhuyan, learned Addl. P.P., Assam for the respondent-State.

2. The challenge in this appeal is to the judgment and order dated 10.2.2020 passed by the learned Additional Sessions Judge, Hojai, Sankardev Nagar, in Sessions Case No. 35/2018. By the said judgment, the learned Sessions Judge convicted the appellant under section 302, IPC and sentenced him to undergo rigorous imprisonment for life and to pay fine of Rs. 5,000, in default, to suffer simple imprisonment for six months.

3. The prosecution case, as unfolded from the record is that on 27.5.2018, at about 4 p.m., the appellant armed with a “dao” trespassed into the campus of Saleha Khatun (since deceased), hurled abuses at her and engaged in altercation. In course of such altercation and hurling abuses, the appellant hit Saleha Khatun from back side, causing her instantaneous death. Noor Mohammed, the younger brother of the victim lodged a report with the officer in-charge of Odali Tiniali Police Out Post, which in turn was forwarded to Lanka Police Station for registering a case. Treating the said report lodged by the informant Noor Mohammed as FIR, the officer-in-charge of Lanka Police Station, registered Lanka P.S. Case No. 281/2018 under section 447/302, IPC and upon completion of investigation submitted charge sheet against the present appellant, who eventually stood trial before the Court of Session.

4. During the course of trial, charge was framed against the appellant under section 302, IPC, to which, the appellant pleaded not guilty. In order to substantiate the charges, prosecution examined 10 witnesses. Upon completion of the prosecution evidence, the accused-appellant was examined under section 313, Cr.PC. The appellant took the plea of innocence and also examined four witnesses in his defence.

5. One Ikramul Hoque was examined as PW-1, who deposed, that on the date of the occurrence, he was engaged by the accused-Khajal Uddin for erecting fencing on the boundary of his land. While he was erecting fencing with Khajal Uddin, the deceased Saleha Khatun came to the place of occurrence and a hot altercation took place between the accused and Saleha Khatun and the accused assaulted Saleha with a piece of bamboo. When Saleha (deceased) fell down having struck by the accused, the accused dealt 3/4 blows with a “dao”. Having seen the occurrence, he became nervous. This witness also proved his previous statement recorded by the learned Magistrate under section 164, Cr.PC and marked as Ext. 1. During cross-examination, it was elicited that the victim was hurling abuses at the accused standing on the boundary of the land between the house of the accused and the deceased. This witness further stated during cross-examination that initially the deceased was taken back from the place of occurrence by her daughter and again she came and started hurling abuses at the accused and in course of hot altercation between the two, the accused inflicted the injury.

6. Sanbanu Begum, the daughter of the deceased has been examined as PW-2. She deposed, that at the time of the occurrence, the accused-Khajal Uddin along with Ikramul (PW-1) were constructing boundary fencing near the house of the accused-Khajal Uddin. At that time, an altercation ensued between her mother (deceased) and the accused regarding the boundary and the accused assaulted her mother with a bamboo stick. She further stated, that when the deceased fell down being struck by the accused, the accused-appellant again dealt several blows to the victim with a ‘dao’. This witness also proved her previous statement recorded under section 164, Cr.PC as Ext. 2. During cross-examination, it was elicited, that there was boundary dispute between the accused and the deceased and several village meeting were held in order to resolve the issue. She further stated, that when the accused was constructing boundary fencing, the deceased rais