JUDGMENT :

Michael Zothankhuma, J.

Heard Mr. N. Mahajan, learned counsel appearing for the appellant. Also heard Ms. B. Bhuyan, learned Additional Public Prosecutor appearing for the State/respondent No.1 and Mr. U. Choudhury, learned Legal Aid Counsel appearing for the respondent no.2.

2. The challenge in this appeal is against the impugned judgment and order dated 05.10.2016 passed by the learned Sessions Judge, Golaghat in Sessions Case No. 76/2015, by which the appellant has been convicted under Section 302 I.P.C. and sentenced to undergo rigorous imprisonment for life with a fine of Rs.5,000/-, in default, simple imprisonment for one month.

3. The prosecution case is that an FIR was lodged on 29.04.2015 by P.W.-2, who is the second wife of the deceased Biren Bora, to the effect that the appellant, who is the son of the deceased with his first wife PW-8, had killed the deceased around 8 p.m. on 28.04.2015. In pursuance to the FIR, Borpathar Police Station Case No. 43/2015 under Section 302 I.P.C. was registered and confessional statement of the appellant was taken under Section 164 Cr.P.C. As the I/O found a prima facie case under Section 302 I.P.C. against the appellant, he filed the charge-sheet.

4. Charge under Section 302 I.P.C. was framed against the appellant on 02.07.2015, to which the appellant pleaded guilty. The same not having been accepted by the learned Trial court, ten prosecution witnesses and two defence witnesses were examined by the learned Trial Court. Examination of appellant was done under Section 313 Cr.P.C. and thereafter, the appellant was convicted and sentenced in terms of the impugned judgment and order dated 05.10.2016 passed in Sessions Case No. 76/2015.

5. The learned counsel for the appellant submits at the outset, that there is no denial with the fact that the cause of death of the deceased was due to action of the appellant in hacking the deceased (his father) with an axe and the injuries sustained therein, which is recorded in the evidence given by Dr. Rajiv Kr. Prasad (P.W.-1).

6. The learned counsel for the appellant submits that as his father (deceased) had abused the appellant and scolded his mother by using filthy words, besides alleging that the appellant was having an illicit affair with his mother, i.e. P.W.-8, an argument ensued between them. Thereafter, as the deceased had punched the appellant and made an attempt to assault him with a fence post, the appellant had struck him with an axe.

7. The learned counsel for the appellant submits that there was no premeditation involved in the action of the appellant and the same occurred due to grave and sudden provocation. There was no intention to kill the deceased and it was only due to the argument that had erupted between the appellant and the deceased, that the deceased was struck by the appellant with an axe. He submits that the evidence of P.W.-5 shows that a quarrel had taken place between the appellant and the deceased. The learned counsel for the appellant thus prays that as the incident comes within the ambit of exception 1 or 4 of Section 300 I.P.C., the appellant should have been sentenced under Part II of Section 304 I.P.C. In support of his submissions, the learned counsel for the appellant has relied upon the judgments of this Court in (i) Depon Saikia vs State of Assam reported in (2013) 2 Gau LR 241 (ii) Manju Lakra vs State of Assam reported in (2013) 6 Gau LR 222 (iii) Ranjit Tanti vs State of Assam & Anr. reported in 2018 SCC OnLine Gau 585.

8. Ms. B. Bhuyan, the Additional Public Prosecutor, on the other hand submits that there is no infirmity with the impugned judgment and order, as the appellant in his confessional statement under Section 164 Cr.P.C. clearly admitted the fact that the deceased had died at the hands of the appellant. Further, the appellant’s extra judicial confession, which is reflected in the evidence of P.W.-5 and P.W.-8 clearly shows that the appellant is guilty of the offence under Section 302 I.P.C. Sh