The main legal point established in the judgment is that the deadly attack by the appellants on the deceased was not justified by any sudden provocation, and the exceptions to Section 300 of the IPC could not be applied.

JUDGMENT :

MICHAEL ZOTHANKHUMA, J.

1. Heard Ms. B. Devi, learned counsel for the appellants. Also heard Ms. B. Bhuyan, learned Additional Public Prosecutor, Assam.

2. This appeal has been filed against the impugned judgment dated 01.10.2016 passed by the learned Sessions Judge, Golaghat, in Sessions Case No. 171/2005, by which the appellants, namely, Khireswar Tanti and Patal Karmakar, have been convicted under Sections 302/34 of the IPC and sentenced to undergo rigorous imprisonment for life and to pay fine of Rs. 5,000/- each, in default, simple imprisonment for one month.

3. The prosecution story, in brief, is that an FIR dated 01.08.2005 was submitted by the brother of the deceased, who was Prosecution Witness No. 1 (in short PW-1). The FIR stated that the appellant Khireswar Tanti and Patal Karmakar along with one Sri Gajen Tanti had chased the deceased at around 7.30 pm on 31.07.2005 and killed him by hitting him with a dao, axe and hammer etc. Thereafter, the accused persons had run away from the place of occurrence.

Consequent to the FIR dated 01.08.2005, Golaghat P.S. Case No. 376/2005 under Sections 302/34 of the IPC was registered against the appellants and Sri Gajen Tanti, who is an absconder in the case. After investigation was completed in the case, the Investigating Officer submitted the charge sheet, on finding a prima facie case under Sections 302/34 of the IPC against the appellants and Sri Gajen Tanti.

It may be stated herein that the appellant No. 1 Khireswar Tanti is the brother-in-law of the appellant No. 2 Patal Karmakar. The deceased herein is also the brother-in-law of the appellant No. 1 Khireswar Tanti, inasmuch as, Khireswar Tanti’s sister, Aghuni Tanti was married to the deceased.

4. The learned Trial Court, thereafter, framed charge under Sections 302/34 of the IPC against the appellants and Sri Gajen Tanti, to which they pleaded not guilty and claimed to be tried.

5. In support of their case, the prosecution examined 9 prosecution witnesses. The defence also adduced evidence by examining one defence witness. The examination of the appellant No. 1 under Section 313 Cr.P.C. was undertaken by the learned Trial Court on two occasions, i.e. 18.07.2012 and 04.08.2016. Similarly, examination of the appellant Patal Karmakar under Section 313 Cr.P.C. was done on 18.07.2012 and 04.08.2016. The learned Trial Court, thereafter, came to a finding that the appellants were guilty of committing the murder of the deceased in furtherance of their common intention to kill the deceased. As such, the appellants were convicted under Sections 302/34 of the IPC and sentenced, as stated in the forgoing paragraphs.

6. Ms. B. Devi, learned counsel for the appellants, submits that the incident appears to have occurred due to a quarrel that had arisen between the deceased and his wife, who is the sister of the appellant No. 1. She submits that there was no independent eye witness to prove the assault on the deceased by the appellants, inasmuch as, PWs. 1, 4 & 7 are the brothers of the deceased and as such, interested witnesses. As they are interested witnesses, their evidence will have to be taken with a pinch of salt and would need greater scrutiny. She submits that the action of the appellants being due to sudden provocation by the deceased, the charge framed against the appellants should be altered to that under Section of 304 Part-1 of the IPC.

7. Ms. B. Bhuyan, learned Addl. Public Prosecutor, Assam, submits that there is no contradiction in the evidence given by the eye-witnesses, vis-a-vis, the statements given under Sections 164 and 161 Cr.P.C. She also submits that PW-1, 4 & 7 being eye witnesses to the incident and their testimony having withstood the cross-examination, the case of the prosecution has been proved beyond all reasonable doubt. Further, PW-1, who is the brother of the deceased, is also an injured eye witness. She also submits that the evidence of PW-2, who is the mother of the deceased, is to the effect that th