JUDGMENT :

M. Zothankhuma, J

Heard Mr. G. Phukan, learned Counsel for the appellant. Also heard Ms. S. Jahan, learned Additional Public Prosecutor for the State.

2. This appeal has been filed against the Judgment & Order dated 22.11.2019 passed by the learned Sessions Judge, Lakhimpur, North Lakhimpur in Sessions Case No. 143 (NL)/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. 5,000/-, in default, to undergo rigorous imprisonment for 6 (six) months.

3. The Prosecution case in brief is that one Munindra Chabukdhora, who is PW-2 had filed an FIR dated 20.05.2016 before the In-charge, Simaluguri Police Outpost under Bihpuria Police Station, stating that around 4 p.m. on 20.05.2016, Sri Manjit Sarkar @ Babu Sarkar had called his elder brother Utpal Chabukdhora to the house of Sri Letu Lohar (PW-3). Thereafter liquor was provided to his elder brother and Manjit Sarkar (appellant) killed his elder brother by stabbing the deceased with a knife.

4. Pursuant to the FIR dated 20.05.2016, Bihpuria P.S. Case No.328/2016 under Section 302 IPC was registered and investigation was held. After investigation was complete, the I.O. submitted a charge-sheet on finding that a prima facie case under Section 302 had been made out against the appellant.

5. Charge was framed under Section 302 IPC against the appellant, to which the appellant pleaded not guilty and claimed trial.

6. During trial, 9 (nine) Prosecution witnesses were examined by the learned Trial Court. Thereafter examination of the appellant was done under Section 313 Cr.P.C and consequent to the above, the impugned Judgment and Order has been passed by the learned Trial Court.

7. The learned counsel for the appellant submits that the perusal of the evidence shows that there were 2 (two) eye witnesses to the crime. He submits that though the evidence points out to the fact that the appellant had taken the life of the deceased by stabbing him on his neck, the said act was not done intentionally and neither was it done with premeditation. He submits that the evidence recorded by the learned Trial court shows that the deceased and the appellant were friends and that on the date of incident, the two friends had gone to the house of PW-3 with liquor and green mangos. PW-3 laid out chairs in his courtyard for the appellant and the deceased. PW-3 then joined the appellant and the deceased. However, due to a quarrel that had ensued between the appellant and the deceased, during the heat of the moment, appellant stabbed the deceased on his neck which led to his death. The learned counsel for the appellant thus submits that as the present case attracts Exception-4 to Section 300 IPC, the appellant could not have been convicted under Section 302 IPC. He submits that the appellant should have been convicted under Part-II of Section 304 IPC.

8. Ms. S. Jahan, learned Additional Public Prosecutor fairly submits that the evidence of the Prosecution witnesses and especially PW-3, in whose courtyard the appellant and the deceased were drinking, goes to show that the appellant and the deceased were friends. She also submits that the evidence of the mother of the deceased, i.e. PW-6, also shows that the deceased and the appellant were friends and that there was no enmity between them. She also submits that there is nothing to show that the act of the appellant had been done with any premeditation and as such, there could be some substance in the submission made by the learned counsel for the appellant, to the effect that Section 302 IPC would not be attracted in this case.

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

10. As can be seen from the evidence adduced by the prosecution witnesses, the appellant and the deceased had carried country made liquor in a steel jar to the house of PW-3. PW-3 thereafter laid out chairs in the courtyard of his house and also brought out a knife, salt and chilli, to enable the