An act resulting in death committed during a sudden fight in the heat of passion without premeditation or the taking of undue advantage qualifies as culpable homicide not amounting to murder, punishable under Section 304 Part-I when the intent to cause death is established.

JUDGMENT :

M. ZOTHANKHUMA, J.

Heard Mr. A. Ahmed, learned counsel for the appellant and Ms. A. Begum, learned Addl. PP for the State. Also heard Mr. A. Thakuria, learned counsel for the respondent No. 2 (informant).

2. The appellant has put to challenge the impugned Judgment dated 20.12.2023, passed by the learned Addl. Sessions Judge, Bilasipara in Sessions Case No. 55/2011, by which the appellant has been convicted under Sections 447/326/302 of the IPC. He has accordingly been sentenced to undergo simple imprisonment for 1 month under Section 447 of the and to undergo rigorous imprisonment for 7 years with a fine of Rs.5,000/-, in default, simple imprisonment for 1 month under Section 326 of the . The appellant has also been sentenced to undergo rigorous imprisonment for life under Section 302 of the and to pay fine of Rs.10,000/-, in default, to undergo simple imprisonment for 2 months. All the sentences are to run concurrently.

3. The learned counsel for the appellant submits that the fact that the appellant had hit the deceased with a wooden baton is not in dispute. However, the act of the appellant had been done in a sudden fight without any premeditation and in the heat of passion, which erupted from a sudden quarrel between the appellant on one side and the deceased and his brother (PW-8) on the other side, over a dispute regarding the ownership of a betel nut garden.

4. The learned counsel for the appellant submits that Clause Thirdly in Section 300 of the IPC is not attracted, because the prosecution failed to prove that the injury caused by the appellant on the deceased would result in death in the ordinary course of nature. Further, as Exception 4 to of the was applicable to the facts of the case, the appellant’s act of culpable homicide did not amount to murder. He further submits that if the deceased had been immediately taken to a hospital and given treatment in the hospital, after being hit on the head with the wooden baton by the appellant, the deceased would have in all probability survived the assault, as the doctor’s report nowhere stated that the injury caused to the deceased would, in the ordinary course of nature, lead to the death of the deceased.

5. The appellant’s counsel also submits that the hitting of the deceased on the head by the appellant with a wooden baton, did not amount to the appellant acting in a cruel manner, as the same had occurred due to a sudden fight in the heat of passion and without any premeditation or intention to kill the deceased. He accordingly submits that the charge under Section 302 of the IPC should be altered to Section 304 Part-II of the , as at best, the appellant could be convicted under Section 304 Part-II of the only.

6. In support of his submissions, Mr. Ahmed has relied upon the judgment of the Supreme Court in the case of Anbazhagan Vs. State represented by the Inspector of Police , reported in AIR 2023 Supreme Court 3660 and the decision of this Court in the case of Rajen Boro @ Gobla vs. State of Assam (Crl. App.(J) 61/2017).

7. Ms. A. Begum, learned Addl. PP submits that the evidence of PW Nos. 7 & 8 proved that there was intention on the part of the appellant to kill the deceased, inasmuch as, the appellant had gone home after the quarrel and returned with a wooden baton, with which he hit the head of the deceased. Thus, Exception 4 to Section 300 of the IPC was not attracted, as the appellant h