JUDGMENT :

N. Kotiswar Singh, J.—

1. Heard Ms. B. Choudhury, learned amicus curiae appointed by this court to assist this court on behalf of the appellant. Also heard Mr. P. Borthakur, learned Additional Public Prosecutor, Assam for the State and Ms. B. Sarma, learned Legal Aid Counsel appears for the informant (respondent No. 2).

2. The present appeal has been, preferred against the judgment dated 20.12.2018 passed by the learned Sessions Judge, Sivasagar in Sessions Case No. 83(S-N) of 2017 arising out of G.R. Case No. 647/2015, whereby the appellant has been convicted under section 302, IPC and sentenced to undergo rigorous imprisonment for life with a fine of Rs. 2,000 only in default of which to undergo simple imprisonment for another 2 months with further conviction under section 325, IPC and sentenced to undergo rigorous imprisonment for 2 years with a fine of Rs. 1,000 in default of which, to undergo further simple imprisonment for 1 month. Both the sentences were directed to run concurrently.

3. The brief facts of the case as can be gathered from the records is that an FIR was lodged on 29.12.2015 by one Sri Lakheswar Karmakar, father of the appellant alleging that on 23.12.2015, at about 8 p.m. he had a quarrel with his eldest son Tulsi Karmakai (alias Latu) and at that time, his son was in a heavily drunken state. He took a dao from his home and inflicted severe injuries on him (Lakheswar) and Drupadi Karmakar, the mother of the appellant, thus, hacking them with the dao indiscriminately and fled away from the house. Soon after Tulsi fled, the neighbours came and immediately took them to the hospital of Chantak Tea Estate Seeing the seriousness of the injury, the Doctor of the Tea Estate referred them to the Government Hospital at Assam Medical College and Hospital (‘AMGH’), Dibrugarh. However, on the way his wife, Drupadi Karmkar died.

4. Based on the aforesaid FIR, a case being Bihubor P.S. Case No. 60/2015 under section 326/302, IPG was registered. On completion of the investigation, the following charges were framed against the appellant (Tulsi Karmakar).

Firstly, that on 23.12.2015, at about 8.00 p.m. the appellant had assaulted Smt. Drupadi Karmakar with a dao and on : 24.12.2015 the said Drupadi Karmakar succumbed to her injuries during treatment at AMCH; Dibrugarh and thereby committed the offence punishable under section 302, IPC.

Secondly, that on 23.12.2015, at about 8.00 p.m. the appellant voluntarily caused grievous hurt to Sri Lakheswar Karmakar by means of a Dab and thereby committed an offence punishable under section 326, IPC.

5. The prosecution produced 7 witnesses and the defence, 2 witnesses in course of the trial.

6. The learned trial court after considering the evidences adduced by the prosecution convicted the appellant under section 302, IPC, and section 325, IPC instead of section 326, IPC and sentenced as mentioned above

7. Before we go to the merit of the casts, we will consider the relevant evidence on record, first the prosecution witnesses and then the defence witnesses.

8. PW-1, Sri Lakheswar Karmakar the informant and the father of the appellant. He deposed that the appellant is his son and the deceased Drupadi Karmakar, his wife (and the mother of the appellant.

The appellant-Tulsi Karmakar resided in the nearby house in same compound. He deposed that on 23.12.2015, at about 8.00 p.m, he along with his wife, Drupadi Karmakar anc. This daughter, Nemita Karmakar and son Naresh Karmakar, were in his house. At that time, the appellant g asked his sister to open the door for taking some vegetables. On opening the door, the appellant entered his house and physically assaulted his mother Drupadi. On hearing the cry, when PW-1 came out of his room, file appellant assaulted him on the leftside of the head. He also stated that he saw injury on the back side of his wife's neck. When PW-1 reused h an alar