JUDGMENT :

(M. Zothankhuma, J.)

1. Heard Mr. A Dhar, learned Amicus Curiae and Ms. B. Bhuyan, learned Addl. Public Prosecutor.

2. This appeal has put challenge the judgment & order dated 21.12.2017 passed by the Court of the Addl. Sessions Judge-1, Nagaon, in Sessions Case No. 22(N)/2017, by which the appellant has been convicted under Section 302 IPC and sentenced to undergo rigorous imprisonment for life with a fine of Rs. 2,000/, in default to undergo further rigorous imprisonment for 4 months, vide sentence Order dated 22.12.2017. The learned Amicus Curiae submits that it is not disputed that the appellant had struck the back of the head of the deceased with an axe on 14.01.2017, which caused the death of the deceased. He, however, submits that the case of the appellant attracts Exception-1 to Section 300 IPC and accordingly, the conviction of the appellant has to be altered to Section 304 Part-II IPC.

3. Ms. B Bhuyan, the learned Addl. Public Prosecutor also submits that on considering the evidence adduced in the Trial Court, the action of the appellant may attract Exception-1 to Section 300 IPC. She further submits that the factors to be considered in determining whether culpable homicide amounts to murder is culled out in various judgments of the Apex Court, which is reflected in the case of State of Uttarakhand vs. Sachendra Singh Rawat , reported in (2022) 4 SCC 227.

4. We have heard the learned counsels for the parties.

5. The prosecution case in brief is that an FIR dated 14.01.2017 had been submitted by the father of the deceased (PW-1) to the In-Charge of Puranigudam P.P, Nagaon, stating that his deceased son and his son’s friend, Shri. Dip Ruta went to collect firewood from Balijuri Tea Estate. The appellant, who was the Chowkidar of the Tea Estate confronted them and after snatching an axe from them, he killed his son by giving a blow to the back of the head of the deceased with the axe.

6. PW-1, who is the father of deceased, in his cross-examination has stated that he was not a garden worker and that his house was outside the Tea garden area. He also stated that in order to collect firewood from the garden, permission of the garden authority is required. PW-1 further states that his deceased son and PW-2 did not take permission from the garden authorities to collect firewood from the garden on the date of the incident.

7. The evidence of the friend of the deceased, who is PW-2, is to the effect that they had gone into the tea garden for collecting wood. After loading the firewood on their cycles, they met the appellant, who took away the axe from the cycle of the deceased and moved away. The deceased asked the appellant, who was the Chowkidar of the Tea garden, to return the same. However, the appellant hit the deceased on the back of the head with the axe. In his cross-examination, PW-2 states that they did not submit any application at the Tea garden office, seeking permission to collect wood from the Tea garden. He also deposed that he knew the appellant before the occurrence of the incident. In his cross-examination, PW-2 has denied the suggestion that prior to the occurrence of the incident, they had earlier stolen firewood from the garden or that they had been warned by the garden authorities. He also denied the suggestion that the appellant had resisted them and that they had assaulted him.

8. PW-3, who is the Driver of the Manager of the Lungsung Tea Estate states that he knows nothing about the occurrence of the crime.

9. The evidence of the Doctor, PW-4, is to the effect that there was a deep cut injury in the occipital area (backside) of the head and that the skull of the occipital bone was fractured. In the opinion of PW-4, the cause of death was due to shock and haemorrhage as a result of the major head injury sustained by the deceased.

10. The evidence of PW-5 is to the effect that the deceased and one of his neighbour had gone to the Balijuri Tea Estate to collect firewood. While they were retur