Point of Law: It is possible that passion was running very high between the parties and when the quarrel between the two appellants and the deceased as well as his wife was going on in the courtyard of the house of the victim, the appellants, acting under grave and sudden provocation, in a heat of passion and having lost their sense of self control, had assaulted the victim leading to his death - Case would come within the purview of Exceptions I and IV of Section 300 of the IPC.

JUDGEMENT :

Suman Shyam, J.

1. Heard Mr. N.N.B. Choudhury, learned counsel appearing for the appellants. We have also heard Ms. S. Jahan, learned APP, Assam, who has appeared on behalf of the State of Assam. Ms. R.R. Kakati, learned Legal Aid Counsel is present on behalf of the informant.

2. This appeal arises out of the judgment dated 25/04/2017 passed by the learned Sessions Judge, Morigaon, in connection with Sessions Case No. 07/2013 whereby, the learned trial Court has convicted both the appellants for committing offences punishable under Sections 448/302/34 of the Indian Penal Code (IPC) and sentenced each of them to suffer rigorous imprisonment for one year and to pay fine of Rs. 1000/-each for committing the offence under Sections 448/34 IPC. The learned Court below has also sentenced both the appellants to suffer rigorous imprisonment for life and also to pay fine of Rs. 30,000/-each with default stipulation for committing the offence under Sections 302/34 of the IPC. Both the sentences were to run concurrently.

3. The facts of the case, in a nutshell, are that on 20/10/2012, Smt. Bhagya Hira i.e. the wife of the deceased Darshan Hira had lodged an ejahar with the Incharge of the Baribazar Police Patrolling Post informing that on the previous night, at around 10-15 p.m., her brother Bhupen Hira had gone to the house of her uncle to have tobacco but the family members of her uncle had driven away Bhupen Hira by scolding him, whereupon her brother had returned home. After a while, the accused persons, named in the ejahar, had illegally entered into her house with spears in their hands and started scolding her brother again. At that time, her husband and she took the accused persons outside their house, towards the road, but both the accused persons had stabbed her husband on the chest with the spear and spike in their hands, as a result of which, her husband fell down on the ground and died instantly. In the ejahar dated 20/10/2012, both the appellants have been named as the accused persons.

4. On receipt of the ejahar dated 20/10/2012, a GD entry being Bari-bazar Police PP GDE No. 343 dated 20/10/2012 was made and the ejahar was forwarded to the Officer-in-Charge, Mikirbheta Police Station for registering a case. Based on the ejahar dated 20/10/2012, Mikirbheta PS Case No. 209/2012 was registered under sections 448/302/34 of the IPC and the matter was taken up for investigation.

5. During the course of investigation, the Investigating Officer (IO) had visited the place of occurrence, conducted inquest over the dead body and also sent the body for conducting post-mortem examination at the Morigaon Civil Hospital. On completion of investigation, the IO had submitted charge sheet against both the appellants. Based on the charge sheet submitted by the IO, the learned trial Court had framed charge under sections 448/302/34 of the IPC against both the appellants and the same were read over and explained to them, to which, the appellants had pleaded not guilty and claimed to be tried. Accordingly, the matter went up for trial.

6. The prosecution had projected the informant (PW-1) and her brother PW-3 as the eye witnesses to the occurrence. Apart from the aforementioned two witnesses, the prosecution had also examined as many as 8(eight) other witnesses so as to bring home the charge. The case of the appellants/accused persons while recording their statements u/s 313 of Cr.P.C. was one of total denial and the defence side also did not lead any evidence. Based on the materials available on record, the learned trial Court has held that the charge brought against both the appellants could be established by the prosecution beyond reasonable doubt and accordingly, both the appellants were convicted by the learned trial Court and sentenced as aforesaid.

7. By referring to the impugned judgment, Mr. Choudhury, learned counsel for the appellants has argued that the charge brought against his clients could not be established beyond reasonable