JUDGMENT :

Suman Shyam, J.

Assailing the judgment and order dated 04.09.2018 passed by the learned Sessions Judge, Sivasagar in connection with Sessions Case No.21(S-S)/2018 whereby, the sole appellant was convicted under Section 302 of the Indian Penal Code (IPC) for committing the murder of Anubhab Karmakar and sentenced to undergo rigorous imprisonment for life and also to pay fine of Rs.1000/-(Rupees One Thousand) with default stipulation, the instant Jail appeal has been filed.

2. The prosecution case, in a nutshell, is that on 21.09.2017, at around 8:00 p.m., an altercation took place between the appellant/accused and the victim Anubhab Karmakar whereby, the appellant had assaulted the victim on his head and other parts of the body with a bamboo ‘lathi’ (stick) causing grievous injury on Anubhab Karmakar. The victim was rushed to the hospital but he died on the next day morning at about 3:15 a.m. On 21.09.2017, Sri Bopoi Karmakar i.e. the elder brother of the victim, lodged an ejahar before the In-Charge of Nitaipukhuri Police Outpost reporting the incident, based on which GD Entry No.331/2017 dated 21.09.2017 was made and the same was forwarded to the Officer-in-Charge of Demow Police Station for registering a case. Consequently, Demow P.S. Case No.205/2017 came to be registered under Section 302 of the IPC and the matter was taken up for investigation by the police. On completion of investigation, the Investigating Officer (I.O.) had submitted charge-sheet under Section 302 of the IPC against the appellant.

3. Based on the charge-sheet the learned trial court had framed charge against the appellant under Section 302 of the IPC. However, since the appellant had pleaded innocence and claimed to be tried, the matter went up for trial.

4. Prosecution case is primarily based on the testimony of PW-3, who was projected as an eye-witness as well as the evidence of other witnesses adducing circumstantial evidence.

5. After recording the evidence of the prosecution side, the statement of the accused was recorded under Section 313 of the Cr.P.C. The accused/ appellant had also examined himself as the lone defence witness. The DW-1 had projected a case that he had acted in exercise of right of self defence, so as to regal out of the rigors of Section 302 of the IPC.

6. Upon analyzing the evidence available on record the learned trial court had held that the prosecution side had succeeded in establishing the charge brought against the accused/appellant under Section 302 of the IPC beyond reasonable doubt. Consequently, the appellant was convicted under Section 302 of the IPC and sentenced as aforesaid. Since then the appellant is in jail.

7. We have heard Ms. Meghali Barman, learned Amicus Curiae appearing for the appellant. Also heard Ms. Barnali Bhuyan, learned senior counsel (Addl. P.P., Assam) assisted by Ms. M. Chakraborty, learned counsel appearing for the State/respondent No.1. None has appeared for the informant/respondent No.2.

8. Ms. Barman has argued that this is not a case of conviction under Section 302 of the IPC inasmuch as, there are materials to show that the occurrence was preceded by an altercation between the appellant and the victim. Moreover, submits Ms. Barman, the accused has not only explained his stand but has also adduced defence evidence to establish that he had acted in exercise of right of self-defence but the said aspect of the matter had not been correctly considered by the learned trial court. The learned Amicus Curiae has further argued that even the element of sudden provocation meted out to the appellant by the victim and his family members was ignored by the learned court below while convicting the appellant under Section 302 of the IPC. On such counts, the learned Amicus Curiae submits that this is at best a case for conviction of the appellant under Section 304 Part-II of the IPC but not under Section 302 IPC.

9. Responding to the above, Ms. Bhuyan has argued that although there is no element of doubt