JUDGMENT :

1. Heard Mr. S.A. Ahmed, learned Amicus Curiae appearing on behalf of the appellant. Also heard Mr. B. Sharma, learned Addl. P.P. for the State of Assam.

2. This appeal is preferred by the accused, Bhopal Das (hereinafter referred as the appellant) against the Judgment & Order dated 20.01.2020 passed by the Sessions Judge, Karbi Anglong, Diphu in Sessions Case No. 98/2016 under Section 302 of the Indian Penal Code (IPC for short). The appellant was convicted under Section 304 Part-1 IPC to suffer Rigorous Imprisonment for 4 years and to pay a fine of Rs. 2,000/-with default stipulation.

3. The learned counsel for the appellant laid stress in his argument that the learned Trial Court convicted the appellant on the basis of sole eye-witness. The evidences of other witnesses are nothing but hearsay evidence. Contradictions lends a benefit of doubt to the appellant.

4. Per contra, the learned Additional P.P. Mr. K.K. Das laid stress in his argument that PW-3 is an eye-witness who has categorically testified that the appellant hit the deceased with a bamboo stick. He dealt a blow on the head of the deceased with a bamboo stick. This evidence is substantiated by the evidence of the Investigating Officer. The inquest report also fortifies the evidence. It is submitted that the appellant deserves stringent punishment.

5. The genesis of the case was that on 18.02.2016 at around 2:30 P.M., Shyamal Das (hereinafter referred to as the deceased) was passing through the road near Langsoliet PWD Colony, when the appellant dealt a blow with a lathi on his head. The deceased was immediately admitted in Langsoliet Nursing Home. As his injury was serious, he was referred to Hojai for better treatment. The deceased succumbed to his injuries on his way to the hospital. The appellant then appeared before the Borlangfer police station at around 6:20 PM and informed the police about the incident. The FIR was written by a co-villager Shri Kamaleshwar Deka. The Borlangfer P.S. Case No. 2/2016 was registered under Section 302 IPC and the police embarked upon the investigation. On completion of investigation charge sheet was laid against the appellant under Section 302 IPC.

6. At the commencement of trial a formal charge under Section 302 IPC was framed and read over and explained to the appellant who adjured his guilt and claimed innocence. To substantiate its stance, the prosecution examined 7 (seven) witnesses including the Medical Officer (M.O. in short) and the Investigating Officer (I.O. in short). Some witnesses were cross-examined to refute the charges. The statement of the appellant was recorded under Section 313 of the Code of Criminal Procedure (Cr.P.C). to explain the evidence against him, but his answers were evasive.

7. The point which arises for determination is that whether the trial Court erred in convicting the appellant under Section 304 Part-1 IPC.

8. In this case charge was framed under Section 302 IPC but the appellant was convicted under Section 304 Part-I of the IPC. On the basis of the evidence of the sole eye witness, the appellant was convicted. While convicting the appellant under Section 304 IPC, the learned trial Court held that:-

“15. What the Hon’ble Apex Court has observed in the case of Surinder Kumar v. UT, Chandigarh reported in “(1989) 2 SCC 217” while dealing with the provision of Exception 4 to Section 300, of the IPC is reproduced below:

“7. To invoke this exception four requirements must be satisfied, namely, (i) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of passion; and (iv) the assailant had not taken any undue advantage or acted in a cruel manner. The cause of the quarrel is not relevant nor is it relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger