JUDGMENT :

M. Zothankhuma, J.

Heard Mr. K. Goswami, learned Senior Counsel and Amicus Curiae assisted by Mr. R. Das, learned counsel for the appellant. Also heard Ms. S. Jahan, learned Additional Public Prosecutor appearing for the State respondent.

2. This appeal has been filed against the judgment and order dated 30.11.2018 passed by the learned Additional Sessions Judge (FTC), Jorhat in Sessions Case No. 70(J-T)/2018, by which the appellant has been convicted under Section 302 IPC. The appellant was thereafter sentenced to undergo rigorous imprisonment for life with a fine of Rs. 10,000/-, in default, simple imprisonment for 6 (six) months vide sentence order dated 06.12.2018.

3. The prosecution case in brief is that an FIR dated 14.01.2018 was submitted before the Officer-in-Charge of Titabor Police Station stating that on 13.01.2018, at around 11:30 pm, the informant’s brother Sri Amit Sabar had called their father away from the house and killed him on the road near the house, by slashing his neck with a pruning knife. Pursuant to the FIR, Titabor P.S. Case No. 09/2018 under Section 302 of the IPC was registered against the appellant. After investigation was completed, charge-sheet under Section 302 IPC was submitted in the Court.

4. The learned Trial Court framed a charge under Section 302 of the IPC against the appellant on 21.06.2018, to which the appellant pleaded not guilty and prayed for trial.

5. During the trial proceedings, 11 (eleven) prosecution witnesses were examined. Thereafter, the appellant was examined under Section 313 Cr.PC. The learned Trial Court having come to a finding that the appellant was guilty of the offence under Section 302 IPC, convicted him under Section 302 IPC and sentenced him as per the sentence order dated 06.12.2018.

6. The learned senior counsel and Amicus Curiae submits at the outset that there is no denial with the fact that the deceased was killed by his son, on being slashed with a pruning knife on the neck. He however submits that in view of the explanation given by the appellant to Question No. 33 in his cross-examination under Section 313 Cr.PC, the Exception Nos. 1 and 4 of Section 300 IPC would be attracted to the facts in hand, as the appellant’s act amounted to culpable homicide, not amounting to murder. Accordingly, the appellant should be convicted for culpable homicide not amounting to murder and sentenced under Part-II of Section 304 IPC. The learned senior counsel submits that while PW-5, who is a child witness, has stated in her evidence that her father went out to meet the appellant (her brother), who was abusing her father with filthy language, the appellant held her father’s and cut his hand. Thereafter, her father fell to the ground as he had been pushed by the appellant. The neck of her father was then slashed by the appellant. The learned senior counsel submits that sequence of events, i.e., the cutting of the hand of the deceased and the act of falling down on the road is different in the statement given by PW-5 under Section 164 Cr.PC. In the statement made under Section 164 Cr.PC, PW 5 has stated that the cutting of the hand and neck of the deceased occurred only after the deceased had fallen on the road.

7. The learned senior counsel for the appellant also submits that the evidence of PW-6, who is the minor son of the deceased shows that the appellant (brother) was abusing his father in filthy language. When his deceased father went out, the appellant cut him on the hand and neck with a knife and thereafter his father fell down. However, the statement of PW-6 in his statement under Section 164 Cr.PC is to the effect that the appellant first pushed his father, who fell on the road. Thereafter the appellant cut his father on his hand and neck with a pruning knife.

8. The learned senior counsel also submits that while PW 5 had stated that the appellant threw the pruning knife towards PW 5 and PW 6, the evidence of PW-6 does not show that any knife had been thrown by th