JUDGMENT :

Malasri Nandi, J.

Heard Ms. M. Barman, learned counsel appearing as Amicus Curiae on behalf of the appellant and Ms. S. Jahan, learned Additional Public Prosecutor appearing on behalf of the State of Assam

2. This appeal has been preferred by the accused appellant against the Judgment and Order dated 14.11.2018, passed by the learned Additional Sessions Judge, Sankardev Nagar, Hojai, in connection with Sessions Case No. 17/2018, whereby the accused appellant was convicted under Section 302 IPC and sentenced to undergo Rigorous Imprisonment for Life and to pay a fine of Rs. 10,000/-in default stipulation.

3. The brief facts of the case is that the informant Smt Sandhya Rani Dey lodged an FIR on 08.07.2017, before the Officer-In-charge, Lumding Police Station, stating inter alia that on the same day, at about 01:00 am (midnight) his son, the accused appellant picked up a quarrel with her husband, i.e., his father over some domestic issues and subsequently, assaulted him and killed him by strangulation.

4. On receipt of the complaint, a case was registered vide Lumding PS Case No. 124/2017, under Section 302 IPC and the investigation was commenced. During investigation, the Investigating Officer visited the place of occurrence, recorded the statement of the witnesses, the inquest on the dead-body of the deceased was conducted and then the dead body of the deceased was forwarded to Nagaon Civil Hospital for Post-Mortem Examination. After completion of investigation, charge sheet was submitted against the accused/appellant under Section 302 IPC, before the Court of learned JMFC, Hojai. As the offence under Section 302 IPC is exclusively triable by the Court of Sessions, the case was committed accordingly.

5. During trial, the charge was framed by the trial Court under Section 302 IPC, which was read over and explained to the accused appellant, to which he pleaded not guilty and claimed to be tried.

6. To substantiate the case of the prosecution, eight witnesses were examined and marked five exhibits. After completion of trial, the statement of the accused/appellant was recorded under Section 313 CrPC wherein incriminating materials found in the evidence of the witnesses were put to him to which he denied the same. It is further stated that he has been falsely implicated in the case. After hearing the arguments advanced by the learned counsel for both the parties, the accused was convicted under Section 302 IPC, as aforesaid.

7. Learned Amicus Curiae at the very outset submits that she does not want to argue the matter with regard to the conviction of the accused appellant. But in the present case, from the statement given by the prosecution witnesses, it is borne out that there was no intention on the part of the accused appellant to kill his father. She further submits that on the fateful day, i.e. on 08.07.2017, when the incident took place, the appellant had come to his house in a drunken state and without there being any pre-meditation on his part, he under the heat of passion assaulted his father, who was about 80 years of age and a paralytic patient, lying on the bed was weak and sick, and could not obstruct his son, which resulted his death. It is further submitted by the learned Amicus Curiaethat in view of the said fact, the case of the accused appellant does not in any manner come within the ambit of Section 302 IPC, rather it falls under Section 304 Part-II IPC.

8. Per contra, learned Additional Public Prosecutor has admitted that on the basis of the evidence of the witnesses, it appears that there was no intention on the part of the accused/appellant to kill his father, however, the deceased was a paralytic patient and he was 80 years of age and bedridden. He was not in a position to move. The accused confined the deceased in the room, bolted the room from outside and assaulted his father, which is considered to b