The court clarified that in cases of mutual fights, absence of premeditated intent necessitates a conviction under Section 304 Part-II, reflecting knowledge rather than intent to kill.

JUDGMENT :

MRIDUL KUMAR KALITA, J

1. Heard Mr. B. D. Das, the learned senior counsel assisted by Mr. H. K. Sharma, the learned counsel for the appellants. Also heard Ms. S. H. Borah, the learned Additional Public Prosecutor for the State as well as Mr. J. Islam, the learned counsel appearing for the respondent No. 2.

2. This appeal under Section 374(2) of the Code of Criminal Procedure, 1973, has been filed by the appellants, namely, (1) Abdul Kalam Sheikh (hereinafter also referred to as A-1) and (2) Abdul Hai Sk. (hereinafter also referred to as A-2), challenging the judgment and order dated 29.09.2023 passed by the learned Additional Sessions Judge, Dhubri, in Sessions Case No. 11/2017. By the said judgment, the appellants were convicted under Section 304 Part-I of the INDIAN PENAL CODE and sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs.5,000/- each, and in default of payment of fine, to undergo simple imprisonment for two months. The appellants were also convicted under Section 325 read with Section 34 of the INDIAN PENAL CODE and sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.1,000/- each, and in default of payment of fine, to undergo rigorous imprisonment for one month. It was directed that both sentences shall run concurrently.

3. The facts relevant for consideration of the instant appeal, in brief, are that on 06.07.2011, one Motiur Raman had lodged an FIR before the Officer-in-Charge of Gauripur Police Station, inter-alia, alleging that, on 04.07.2011, at about 2.00 pm, one cow belonging to the appellant No. 1, Abdul Kalam, entered into the paddy field of Abdul Motleb and started grazing there. When the said Abdul Motleb took the cow to the pound, both the appellant attacked him with deadly weapon like stick, dao, spear, etc. and injured him. The injured Abdul Motleb sustained injuries on his head, and thereafter, he was taken to Dhubri Civil Hospital and then to Guwahati Medical College and Hospital for treatment.

4. On receipt of the said FIR, the Gauripur P.S. Case No.321/2011 was registered under Sections 147 /148/149/341/302 of the INDIAN PENAL CODE and the investigation was initiated.

5. Ultimately, after completion of the investigation, a charge sheet was laid against both the above-named appellants under Sections 302 /34 of the INDIAN PENAL CODE . Both the appellants faced trial. When they appeared before the Trial Court, after considering the materials available on record as well as after hearing both sides, charges under Sections 325 /302/34 of the INDIAN PENAL CODE was framed against both the appellants. When the said charges were read over and explained to them, both of them pleaded not guilty and claimed to be tried.

6. To bring home the charges, the prosecution side examined as many as 14 prosecution witnesses. However, the appellants did not adduce any evidence in their defence. Ultimately, by the judgment and order which has been impugned in this appeal, both the appellants were convicted and sentenced in the manner as already described in paragraph No. 2 of this judgment herein above.

7. Before considering the rival submissions made by the learned counsel for both sides, let us go through the evidence which is available on record.

8. The PW-1, Sri Gaus Ali, has deposed that one day, at about 01.30 PM, when he heard noise from the house of Abdul Motleb, he went ther