JUDGMENT :

M.Zothankhuma, J.

Heard Mr. B J. Talukdar, learned senior counsel and Amicus Curiae in Criminal Appeal (J) 41/2022 and Ms. M. Barman in Criminal Appeal (J) No. 42/2022. Ms. B. Bhuyan, learned Additional Public Prosecutor, Assam appears for the State. The above two appeals are being disposed of by a common judgment, as the challenge made in the 2 [two] cases is to the same impugned Judgment and Order dated 17.02.2022 passed in Sessions Case No. 399/2013.

2. The two appeals have been filed against the impugned Judgment and Order dated 17.02.2022 passed by the learned Sessions Judge, Dibrugarh in Sessions Case No. 399/2013, by which the appellants have been convicted under Section 302/34 IPC and sentenced to undergo Rigorous Imprisonment for life with a fine of Rs.3,000/-each, in default Simple Imprisonment for 1 [one] month.

3. The facts of the case, in brief, is that PW No. 3 submitted an FIR on 04.09.2013 at Chabua Police Station stating that on 03.09.2013, at around 3.10 PM, the appellants had assaulted Nasib Munda with a lathi (bamboo stick), which resulted in the death of Nasik Munda.

4. Subsequent to the FIR, Chabua P.S. Case No. 165/2013 under Sections 302/34 IPC was registered against the appellants. After the investigation concluded, charge sheet was submitted against the appellants, as a prima-facie case under Sections 302/34 IPC had been found against the appellants.

5. The Learned Trial Court framed charges under Sections 302/34 IPC against the appellants, to which they pleaded not guilty and claimed trial.

6. During the trial proceedings in the Learned Trial Court, 14 [fourteen] prosecution witnesses were examined. Thereafter, examination of the appellants under Section 313 CrPC was undertaken. Subsequent to the above, the Learned Trial Court came to a finding that the appellants had been found guilty of the offence under Sections 302/34 IPC and vide the impugned Judgment and Order dated 07.02.2022, convicted the appellants under Sections 302/34 IPC and sentenced them as stated in the earlier paragraphs.

7. The learned Amicus Curiaes in both the appeals submit that though the evidence of PW No. 2 clearly shows that the deceased was assaulted by the appellants, there is nothing to show that the deceased had died due to the assault. They also submit that PW No. 1 and PW No. 4 had been declared hostile witnesses by the prosecution. However, a reading of the statement made by the PW No. 4 to the Police under Section 161 CrPC, read with paragraphs 44 and 45 of the impugned Judgment and Order, would go to show that the action of the appellants in assaulting the deceased, was not only due to grave and sudden provocation on the part of the deceased, in trying to have sexual relations with the wife of the appellant (Stephen Dhan), but also due to the accused trying to assault the appellant Stephen Dhan with an axe, which provoked the appellants to retaliate.

8. The learned Amicus Curiaes also submit that there was no intention on the part of the appellants to kill the deceased. They submit that as the case comes within the Exceptions provided under Section 300 IPC, the impugned judgment and order and sentence should be set aside and the appellants should be sentenced under Part-II of Section 304 IPC.

9. Ms. B. Bhuyan, learned Additional Public Prosecutor submits that it appears that the Exceptions Nos. 1 and 2 under Section 300 IPC can be applied to the case of the appellants, in view of the Learned Trial Court having taken judicial notice of the Inspection Memo, which formed a part of the case diary, where the bite mark of the deceased on the left forearm of the appellant Stephen Dhan was recorded and which is in consonance with the statement given by the PW No. 4 to the Police under Section 161 CrPC that a fight stated.

10. The learned Additional Public Prosecutor submits that the answer given by the appellant Kishore Dhan to the Question No. 5 under Section 313 CrPC where is Stephen Dhan’s examination under Section 313 Cr