Point of Law : In order to avail the benefit of Exception IV of Section 300 of the IPC the defence is only required to probabilise that the offence was committed without premeditation, in a sudden fight and in a heat of passion, upon a sudden quarrel and also the fact that the offender had not taken any undue advantage and had also not acted in a cruel or unusual manner.

JUDGMENT :

Suman Shyam, J.

Heard Mr. A. Tewari, learned Amicus Curiae appearing for the appellant. We have also heard Ms. B. Bhuyan, learned Additional Public Prosecutor, Assam, representing the State.

2. This appeal against conviction is directed against the judgment dated 18.07.2019 passed by the learned Sessions Judge, Sonitpur, Tezpur in Sessions Case No.69/2016 convicting the sole appellant Rajen Baruah under Section 302 of the Indian Penal Code (IPC) for committing the murder of Prasanta Borah and sentencing him 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 the accused Rajen Baruah had invited the deceased for dinner on 03.06.2014 and at around 9:30 p.m. in that evening, he had assaulted the victim on his head thereby causing grievous injury on him. The victim was shifted to the hospital but on the next day, he succumbed to his injuries.

4. On 04.06.2014, Smti. Malati Borah i.e. the mother of the victim had lodged an ejahar before the Officer-in-charge of Bihuguri Police Outpost informing the police about the incident. Upon receipt of the ejahar, Tezpur P.S. Case No.612/2014 was registered under sections 341/306/511/326/34 of the IPC. The accused and his wife were both arrested. Upon completion of investigation, charge-sheet was, however, submitted only against accused Rajen Baruah under Sections 341/326/302 of the IPC. Since it was a case triable by the Sessions Court, the matter was committed to the court of learned Sessions Judge, Sonitpur. The learned trial court framed charge under Sections 342/326/302 of the IPC against the accused. The particulars of the charge, on being read over and explained to the accused, he had pleaded not guilty and claimed to be tried. As such, the matter went for trial.

5. There is no eye-witness in this case and the prosecution had relied on circumstantial evidence brought on record. In order to establish the charge brought against the accused the prosecution had examined as many as 11 witnesses. Two witnesses were examined as Court Witnesses. The statement of the accused person was recorded under Section 313 of the Cr.P.C. whereby he had denied all the incriminating circumstances put to him. The accused had, in fact, taken the plea of alibi and had examined one witness (DW-1) in support of his stand. Upon conclusion of trial, the learned Sessions Judge, Tezpur had passed the impugned judgment dated 18.07.2019 convicting the accused/appellant and sentencing him as aforesaid.

6. Assailing the impugned judgment Mr. Tewari, learned Amicus Curiae, has argued that there is evidence to show that the incident had happened outside the house of the accused which was an open path without any boundary wall. Therefore, that place had access to all. There is no eye-witness to the occurrence and the evidence available on record also does not conclusively establish that it was the appellant who had assaulted the deceased. Mr. Tewari, therefore, submits that the prosecution has failed to establish the links in the chain of circumstances so as to prove the charge brought against the accused beyond reasonable doubt. Alternately, Mr. Tewari has also argued that since there is evidence to show that there was a dispute between the accused and the victim regarding sale of a Winger vehicle, which both of them were operating on partnership basis, it is evident that the incident, even if held to be true, is the outcome of a quarrel between the parties. Viewed from that angle also, submits Mr. Tewari, the present is a case falling within the ambit of Section 304-Part-1 of the IPC.

7. Responding to the above, Ms. B. Bhuyan, learned Addl. Public Prosecutor, Assam, has argued that from the evidence of PWs-2, 3, 5 and 6 it is conclusively established that on the date of the incident, the appellant had invited the deceased to his house for dinner and thereafter, he had fatally assaulted the victim with a blunt weapon lead