IMPORTANT POINT
The main legal point established in the judgment is that the appellant's actions fell under Exception 4 of Section 300 of the IPC, as the evidence established that the appellant acted in the heat of the moment without premeditation, despite having knowledge and intention to cause the fatal blow.

JUDGMENT :

1. Heard Mr. M.A Seikh, learned counsel for the appellant and Mr. M.P. Goswami, learned Addl. PP, appearing for the State of Assam.

2. The challenge:

I. This appeal under section 374 Cr.P.C is filed by the appellant assailing the impugned judgment and order of conviction and sentence dated 13.09.2022 passed by the learned Sessions Judge, Morigaon in Sessions Case No.36/2013, whereby the appellant was sentenced to undergo rigorous imprisonment for 10 years and also to pay a fine of Rs.20,000/-in default to undergo further simple imprisonment for 6 months for offence punishable under section 304 Part-I IPC and further sentenced to pay a fine of Rs.500/-in default to SI for one month for offence punishable under section 334 IPC.

II. By the said judgment eight accused persons were also convicted under section 334 IPC with fine of Rs.500. Another 14 accused persons, who were tried were acquitted by the learned trial court below from the charges under sections 147/148/102B/341/323/325/302 IPC. One accused, namely, Mormuj Ali expired during the trial.

3. The Prosecution Story:

I. The prosecution case in brief is that on 30.12.2011 one Md. Mojibur Rahman lodged an FIR with the Officer-in-Charge of Lahorighat PS alleging inter alia that on the fateful day i.e., 30.12.2011 at about 8.00 AM, the FIR named 19 accused persons in pursuance of a criminal conspiracy armed with dao, spear, lathi etc came to the informant’s land on a dispute as regards a road and assaulted the father of the informant, namely, Samsuddin with sharp object causing grievous injuries on his person. On knowing about such incident, the other brothers of the informant, namely, Saiful Islam, Mokbul, Najrul, Khajul Islam, Dulal (since deceased), uncle Abdul Hekim, nephew Ikramul Hussain and cousin Nurul Amin went to the place of occurrence and found that the accused persons assaulted them with a sharp weapon and caused grievous injuries to them.

II. On receipt of the FIR Laharighat PS Case No.181/2011 under sections 147/148/120B/326/325/379 IPC was registered and investigation was started. Subsequently the injured brother of the informant, namely, Dulal Uddin expired on 01.01.2012, while he was under treatment for the injuries sustained in the incident. Accordingly, section 302 IPC was added.

III. On completion of investigation the Investigating Officer had submitted charge sheet against the 24 numbers of accused including the present appellant. On the basis of the charge-sheet, the learned Sessions Judge had framed charges under sections 120B/341/323/325/302 IPC. Since the appellant had pleaded not guilty the matter went up for trial.

IV. During the trial, the prosecution had examined as many as 16 witnesses to bring home the charges framed against the accused. In the statement recorded under section 313 Cr.P.C, the accused had denied all the incriminating circumstances put to him. The defence also examined as many as four witnesses.

V. The learned trial Court after consideration of the materials produced by the prosecution on record, concluded the following:

i. The case is a free fight between both the sides on the right of use of a path as the path was claimed by both the sides. Prima facie the accused side has the possession over the disputed plot of land; but apparently it appears that the informant’s side was the aggressor to infringe the right of possession.

ii. Though the accused side had the Right of Private Defense to save their property but apparently the accused side had taken the law in their hands knowing fully well that a civil proceeding arising out of same dispute is pending before the District Magistrate, Morigaon. The accused side had exceeded their right.

iii. The appellant/accused had physically assaulted the deceased Dulal Uddin on his vital part i.e., on his head. Such assault is covered under exception 2 and 4 of Section 300 IPC and therefore, though the prosecution has been able to prove the case against the accused/appellant Samed Ali