The court distinguished between culpable homicide not amounting to murder and murder, affirming conviction under Section 304 Part II IPC based on the absence of intent, while modifying the sentence to time served and imposing a fine.

JUDGMENT :

RAJESH MAZUMDAR, J.

Heard Mr. K. Sarma, learned counsel appearing for the appellant. Also heard K.K. Das, learned Additional Public Prosecutor appearing for the State of Assam.

2. The relevant facts of the prosecution case, in brief, is that on 17.05.2001, the complainant Sri Jadav Nath of village Nij Bihaguri, Tezpur filed a written Ejahar before the Tezpur Police Station stating that accused persons, Sri. Homeswar Nath @ Soru Nath and Sri Pabin Nath, both of same village, had come at about 6:00 p.m, armed with lathi in their hands on the public road in front their house and while Khagen Nath was walking on the road, accused persons suddenly attacked Khagen Nath and injured him seriously. Many people gathered and both of the accused persons fled away.

3. After receipt of the aforesaid ejahar, the Tezpur Police Station Case No. 313/01 u/s 341/325/326/34 IPC was registered and investigated. During the investigation Khagen Nath died. Accordingly, an inquest was done and the dead body was sent for post mortem examination by the I/C GMC, Hospital. The I/O prayed for adding Section 302 against the accused persons.

4. On completion of investigation, IO submitted Charge-sheet u/s 302 IPC against the accused persons namely Homeswar Nath, Prabin Nath and Mridul Nath. The Trial Court framed the following point for determination.

i) Whether on 17-05-01 at village Nij Bihaguri under Tezpur Police Station, the accused persons Sri Homeswar Nath @ Saruram and Sri Prabin Nath on being instigated by Sri Mridul Nath committed murder by intentionally giving blows by means of lathi on the head of Shri Khagen Nath, caused the death of Sri Khagen Nath and thereby committed an offence and are punishable u/s 109/302/34 of IPC and also Mridul Nath committed an offence under Section 323 of ?

5. To come to a decision as to the extent to which the prosecution has proved the case u/s 302/24 of IPC against the accused persons Homeswar Nath and Prabin Nath and Mridul Nath, the evidence on record was analyzed, along with exhibits and other materials on record and the statements of the witnesses were discussed. The learned Trial Court found PW7, PW8 and PW9 to be vital witnesses.

7. On conclusion of the Trial, the learned Court came to a conclusion that only a single blow was dealt on the victim and when one blow is given, Section 302 IPC is ruled out. Considering the factual background of the case at hand, it was held that the accused Homeswar had given blow on the head of the deceased, which is a vital part of the body and which was the outcome of their altercations earlier, and also that he was first assaulted by the deceased. It was found appropriate to convict appellant under Section 304 Part II , instead of .

8. Also, from the evidence, the Learned Trial Court found accused Prabin not to be guilty u/s 302/34 IPC and in the absence of materials, as accused Mridul was not implicated by any witnesses u/s 109/302 and no evidence is also there against them, they were found not guilty u/s 302/109/32 .

9. The accused Homeswar Nath was found not guilty u/s 323 IPC . However, from the circumstances of the evidence, the accused Homeswar Nath has been found to have committed the offence of culpable homicide not amounting to murder under provisions of Section 304 . Having found it proved that the accused had no definite intention of causing such bodily injury likely to cause death and when the intention was not to cause death, he was found liable to be convicted under Section 304 Part II , instead of Section 302 and accordingly he was convicted under Section 304 Part II , .

10. Considering the circumstances and the nature of offence, an