The conviction for murder was altered to culpable homicide not amounting to murder under Section 304 Part-II IPC, as the act was without premeditation, characterized by provocation.

JUDGEMENT :

(Michael Zothankhuma, J.)

1. Heard Mr. R. Sharma, learned Amicus Curiae, appearing for the appellant. Also heard Mr. R.R. Kaushik, learned Additional Public Prosecutor, Assam, representing the State.

2. This appeal has been filed against the judgment dated 25/11/2021 passed by the learned Sessions Judge, Baksa, Mushalpur, in Sessions Case No. 20/2019, by which the appellant has been convicted under section 302 IPC and sentenced to undergo rigorous imprisonment for life with a fine of Rs. 2000/- in default, further rigorous imprisonment for 2 (two) months vide sentence order dated 26/11/2021.

3. The prosecution case in brief, is that an FIR dated 12/07/2018 had been submitted by PW-6, who is the brother of the deceased before the In-charge, Kumarikata Police Out Post, stating that his deceased brother was killed at around 12-30 p.m. while returning home, by the appellant on 12/07/2018. The FIR also stated that the appellant had been threatening to kill the deceased for the last couple of days. Pursuant to the FIR dated 12/07/2018, the Kumarikata Police Out Post forwarded the FIR to the Officer-in-Charge, Tamulpur Police Station, wherein, Tamulpur PS case No. 258/2018 under section 302 IPC was registered.

4. After investigation of the case by the Investigating Officer (IO) and after recording the confessional statement of the appellant under section 164 Cr.P.C., the IO had submitted the charge sheet, on finding a prima-facie case under section 302 IPC against the appellant for murdering the deceased. The learned trial Court thereafter examined 10(ten) prosecution witnesses and 1(one) Court Witness. The examination of the appellant was done under section 313 Cr.P.C. wherein, he denied the evidence that had been adduced against him, pertaining to the use of a bamboo stick/pole allegedly belonging to the PW-4, for killing the deceased.

5. The learned trial Court thereafter came to a finding that as the appellant made the confessional statement voluntarily under section 164 Cr.P.C., without any threat, promise, pleasure and influence by the Police and after being given reflection time, besides the bamboo stick used by the appellant having been found near the dead body of the deceased, it was proved beyond doubt that the deceased had died due to the appellant’s assault on the deceased with the bamboo. The learned trial Court also held that due to the medical evidence adduced by PW-6 and the post- mortem report (Exbt.3), it was proved that the appellant had intentionally caused the said injury on the deceased, with the intention and knowledge that such injury was sufficient for causing the death of the victim. Accordingly, the appellant was convicted under section 302 IPC and sentenced accordingly.

6. The learned Amicus Curiae submits that the only ground for the learned Trial Court to convict the appellant is on the basis of the 164 Cr.P.C. statement given by the appellant, which he had denied making during his examination under section 313 Cr.P.C. He submits that the appellant stated that he had not given any confessional statement when asked by the learned Trial Court that the Court Witness- I, JMFC, Baksa had testified that he had recorded the confessional statement of the appellant, confirming that he had hit the deceased twice with the bamboo, which resulted in the deceased falling to the ground. Further, even if the Court were to assume that the confessional statement under section 164 Cr. P.C. was made by the appellant, the answer given by the appellant