Point of Law : Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.

JUDGMENT :

A.D. Choudhury, J.

Heard Mr. D.K. Bhattacharyya, learned counsel for the appellants. We also heard Ms. S. Jahan, learned Additional PP, Assam appearing for the State respondent. Though notice was served, none appears for the respondent No. 2.

2. By the impugned judgment and order dated 04.06.2016 passed by the learned Sessions Judge, Golaghat in Sessions Case No. 152/2010, the two appellants are convicted under Section 302/34 IPC and were sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.5,000/-each, in default, to undergo simple imprisonment for one month each.

3. By filing the present appeal, the appellants have assailed the said judgment and order. The prosecution case, in nutshell, is to the effect that accused/ appellant No. 1, who was with accused/ appellant No. 2 called the deceased (father of the informant) to go to the house of appellant No. 1. When the deceased (father of the informant) started proceeding then the two appellants assaulted him. According to the version narrated in the FIR, the accused/ appellant No. 1 asked the accused/ appellant No. 2 to finish the deceased immediately. Thereafter, the accused/ appellant No. 2 inflicted the injury in chest of his deceased father of the informant with a spear and soon after the deceased fell down on the ground and died.

4. On such information being lodged before the Numaligarh Police Out post, NRL O.P. GDE No. 351 dated 15.07.2010 was registered and same was forwarded to the Officer-in-Charge of Golaghat Police Station for registering a case and accordingly, Golaghat P.S. Case No. 355/2010 under Section 302/34 IPC was registered on the even date. On completion of investigation, the Investigating Officer had submitted the charge-sheet against the appellants. On the basis of such charge-sheet, the learned Sessions Judge had framed charges under Sections 302/34 IPC against the appellants. Since the appellants had pleaded not guilty, the matter went up for trial.

5. During the trial, prosecution had examined as many as 10 witnesses to bring home the charge framed against the appellants. In their statement recorded under Section 313 Cr.P.C., the accused/ appellants had denied all the incriminating circumstances put to them. However, the defence side did not adduce any evidence.

6. Upon conclusion of the trial, the learned Sessions Judge had passed the judgment and order under challenge dated 04.06.2016, convicting the appellants under Section 302/34 IPC and sentencing them as stated hereinabove.

The Prosecution witnesses:

7. PW1 (the informant), and PW4 are the sons of the deceased victim and prosecution examined them as the eye witnesses. PW5 is the wife of the deceased victim and she was also examined as eye witness. Another eye witness as per prosecution story is PW7, who is the nephew of accused/ appellant No.1, Md. Fariuddin Ahmed and deceased, Mohemuddin Ahmed. He is also related to accused/ appellant No.2 and they are first cousin (son of his father’s sister).

8. The prosecution also projected PW8 as an eye witness. Both Accused/ appellant No. 1 and deceased are maternal uncle of the PW8, however, she was declared hostile.

9. PW6 is a villager, PW2 is son-in-law of the victim, who reached the place of occurrence after the incident. PW9, PW10 and CW1 are the I/Os and the PW3 is the doctor, who conducted the post mortem examination.

10. Let this court now first consider the testimony and depiction of the eye witnesses, before going through the other witnesses.

11. PW1, who is the son of the deceased and informant, deposed that while his father was sitting on the front veranda, appellant Fariduddin called him and when the deceased father of the informant reached the agricultural field at the side of the enclosed yard of Fariuddin, Faridudding and Julfique Ali alias Maina (hereafter referred to as appellant No. 1 and appellant No. 2 respectively) started beating the deceased and the PW1 rushed to the spot, which was about 40 meter away from where