Mitali Thakuria, J.

1. Heard Mr. N. Mahajan, learned counsel for the appellants. Also heard Ms. A. Begum, learned Addl. Public Prosecutor, Assam for the State respondent No.1 and Ms. P. B. Bordoloi, learned Amicus Curiae, appearing for the respondent No.2.

2. This appeal has been preferred by the accused appellants against the judgment and order dated 19.11.2019, passed by the learned Addl. Sessions Judge, Sonitpur, in Sessions Case No.138/2018, whereby the appellants were convicted (i) under Section 302/34 IPC and sentenced to life imprisonment with fine of Rs.10,000/- (Rupees Ten Thousand) only along with default stipulation, (ii) under Section 324/34 IPC and sentenced 3 (three) years rigorous imprisonment with fine of Rs.5,000/- (Rupees Five Thousand) only along with default stipulation and (iii) to undergo rigorous imprisonment for 3 (three) years with fine of Rs.5,000/- (Rupees Five Thousand) only along with default stipulation under Section 325/34 IPC. All the sentences were to run concurrently.

3. The prosecution case in brief is that the informant, Md. Akkash Ali (PW.2), who happens to be the uncle of the deceased, lodged an FIR before the Incharge of Singiri Police Out Post, alleging inter alia that on 19.09.2016, at around 12.30 p.m., the accused persons quarreled with the nephew of the informant, namely, Shah Ali and assaulted him by hand and lathi, as a result of which, Shah Ali died on the spot. Accordingly the In-charge of Singiri Police Out Post made a G.D. Entry being G.D. No.315 dated 20.09.2016 and forwarded the same to Dhekiajuli Police Station for registering the case and the same has been registered vide Dhekiajuli P.S. Case No. 660/2016, under sections 302/34 of the IPC.

4. Police accordingly investigated the case, recorded the statement of the witnesses and collected the medical report/post mortem report, etc. and after completion of investigation, the case was charge sheeted against 8 (eight) accused persons, under Sections 302/323/34 of the IPC.

5. After receipt of the charge sheet, the case was accordingly committed before the Court of learned Sessions Judge, Sonitpur and thereafter, it was again transferred to the Court of learned Addl. Sessions Judge, Sonitpur, Tezpur, for trial. Initially the charge was framed against the accused persons under Section 302/34 of the IPC, but subsequently, the charge was altered and accordingly framed under Section 302/324/325/149 of the IPC.

6. During the course of trial, the prosecution has examined as many as twelve (12) Witnesses including the informant, the Investigating Officer and the Medical Officer. The accused persons took the plea of total denial and while recording their statement under Section 313 of the Cr.P.C and they declined to adduce evidence. The learned Trial Court after hearing the arguments, put forward by the learned counsels for both sides passed the impugned judgment and order. Out of the eight accused persons, the learned Trial Court acquitted five accused persons, namely, Sher Ali, Saidul Islam, Kuddus Ali, Msstt. Fatema Khatoon and Msstt. Majida Khatoon on the basis of benefit of doubt. However the present accused/appellants, namely, Abul Kalam, Araj Ali and Rustom Ali were convicted and sentenced, as stated earlier.

7. Being aggrieved and dissatisfied with the impugned judgment and order dated 19.11.2019, passed by the learned Addl. Sessions Judge, Sonitpur, in Sessions Case No.138/2018, the present appeal has been preferred by the present three accused appellants.

8. Mr. N. Mahajan, learned counsel for the appellants submitted that there is no specific evidence as to who assaulted the victim. Further, he submitted that there was only one injury, as revealed from the post mortem report as well as from the evidence of the Doctor. Further he submitted that there are sufficient contradictions in the evidence of the prosecution witnesses and they deposed before the Court with much improvement of the case, which contradicts their own statement recorded under Section 161 of the Cr.P.C.

9. Mr. Mahajan, learned counsel for the appellants further contended that from the cross-evidence of the Investigating Officer (PW.12), it is seen that there are material contradictions in the evidence of the PW.1 and the other vital witnesses of the prosecution, with their statements recorded under Section 161 of the Cr.P.C. As per the FIR, there was an altercation between both the parties and a sudden fight had occurred, due to provocation from the either side. There was also no pre-meditated plan and the incident had occurred only due to a sudden fight between both the parties, which is evident from the testimonies of the prosecution witnesses. More so, there is also contradiction with regard to the place of occurrence. As per the prosecution case, the incident had happened in the tomato cultivating land, but from the evidence of the PW.4, who also claims to be an eye witness to the occurrence, no incident of assault took place in the tomato cultivation area and the entire incident took place on the road, behind their house.

10. It is further submitted by Mr. Mahajan, learned counsel for the appellants that from the evidence of the Doctor as well as from the post mortem report, it revealed that only a single wound was found on the head of the deceased which had caused his death. Further from the post mortem report, it also revealed that the weapon used was a blunt weapon and from the ocular evidence also, it is seen that as per the allegation, the deceased was assaulted with a lathi. So from the entire circumstances of the case, it is seen that after an altercation, a sudden fight ensued between the parties. Though the incident had happened, there was no pre-meditation or intention to kill the deceased. Mr. Mahajan, the learned counsel for the appellants further submitted that in the statement recorded under Sections 313 of the Cr.P.C also, the accused/appellants had taken a the specific plea and described the incident. However, the plea taken by the accused/ appellants while recording their statements under Sections 313 of the Cr.P.C was not at all considered by the learned Addl. Sessions Judge, Sonitpur, while passing the impugned judgment and order of conviction.

11. Mr. Mahajan, the learned counsel for the accused/appellants accordingly submitted that the death of the deceased is not denied by the accused/appellants, but considering the facts and circumstances of the case, the accused/appellants could in the alternative, be convicted under Section 304 Part-I of the IPC. Mr. Mahajan, the learned counsel further submitted that from the evidence of the prosecution witnesses as well as from the medical report, it is seen that the deceased sustained injury on his head by a blunt object, which could be a lathi. If there was any intention to kill the deceased, they could have used any other sharp weapon or could have given more blows on other vital parts of the body of the deceased.

12. To substantiate his submission, Mr. Mahajan, the learned counsel for the accused/appellants relied upon a decision of the Hon’ble Apex Court in the case of Sudam Prabhakar Achat vs. State of Maharashtra , reported in 2025 SCC Online SC 602, wherein in para 12 and 13 of the said judgment, the Hon’ble Apex Court held as under:

                   “12. From the evidence of the prosecution witnesses itself, it is clear that the place of incident is near the house of accused persons. The possibility of a quarrel taking place on account of previous enmity between the accused persons and the deceased; and in a sudden fight in the heat of the moment, the appellant along with the co-accused assaulting the deceased cannot be ruled out. It can further be seen that the weapons used are a stick and the blunt side of the axe. These tools are easily available in any agricultural field. It therefore cannot be said that there was any premeditation.

                   13. It is further to be noted that the appellant is alleged to have used the stick whereas the coaccused is said to have used the blunt side of the axe. If their intention was to kill the deceased, there was no reason as to why the co-accused would not have used the sharp side of the axe. The nature of injury and the evidence of the prosecution witnesses would also not show that the appellant had taken undue advantage or acted in a cruel manner”.

13. Similar view has also been expressed by the Hon’ble Apex Court in the case of Jugut Ram vs. State of Chhattisgarh , reported in (2020) 9 SCC 520, which is also relied by the learned counsel for the accused/ appellants.

14. Per contra, it is submitted by Ms. A. Begum, learned Addl. Public Prosecutor, Assam that the learned Addl. Sessions Judge, Sonitpur has rightly passed the order of conviction, after proper assessment of the evidence of prosecution witnesses in its true perspective. Hence, there cannot be any reason to interfere with the judgment and order passed by the learned Trial Court. She further submitted that PW.1, PW.4, PW.8 and PW.11 are eyewitnesses and the entire incident had happened in front of these witnesses, who also sustained injuries due to the assault inflicted on them. She submits that initially the cow of PW.11 had gone to the field of the accused/appellant No.1 which apparently damaged their field. The cow was tied up by the appellant No.1 and not released. PW.11 along with the VDP Secretary and others then went to the house of the accused appellant No.1, asking for release of the cow belonging to PW.11. However, instead of releasing the cow of the PW.11, the appellant No.1 released his cow on to the tomato cultivation of PW.11. When the son of PW.11 tried to chase away the cow of the appellant No.1, the wife of the appellant No.1 put a rope around the neck of PW.11’s son and tried to strangulate him. When the wife and sisters of PW.11 intervened and freed PW.11’s son, the appellants and others attacked the family of PW.11. They did not spare the thirteen (13) year old son of PW.11 and assaulted him brutally, for which he sustained grievous injury on his head and died on the spot. She further submitted that the ocular evidence fully supports the medical evidence, which reveals that the deceased died due to head injury sustained by him due to the assault on him by the accused/ appellants. She further submitted that from the facts and circumstances of the entire case, it reveals that the accused/appellants had the intention to kill the family members of PW.11 and succeeded in killing the deceased, who was only 13 (thirteen) years of age at that time and hence, this case cannot come under the purview of Section 304 Part-I or Part-II of the IPC or Exceptions to Section 300 of the IPC.

15. We have heard the submissions made by the learned counsels for the parties and also perused the case record and to arrive at a just decision, the evidence of the prosecution witnesses are scrutinized.

16. It is the case of the prosecution that after the quarrel broke out between the accused persons and the nephew of the informant, the accused persons started assaulting him with hand and lathi, as a result of which the nephew died on the spot.

17. PW.2 the informant of this case, lodged the FIR after coming to know about the death of the son of his brother. At the relevant time of the incident, he was in the Dumdumia market and after coming from the market, he saw the dead body of his nephew Shah Ali and accordingly, he also accompanied the dead body for post mortem examination and thereafter, he lodged the FIR. The inquest was also done in his presence, wherein also he put his thumb impression. Thus, it is seen that the PW.2 is not an eye witness to the prosecution case and he lodged the FIR only after coming to know about the incident from the other family members regarding the death of his nephew, who is the son of his elder brother.

18. PW.1 is the mother of the victim and an eye witness, as well as one of the injured/victim of this case. As per her version, three days prior to the incident, accused appellant No.1 Abul Kalam confined one of their cattle, alleging that it had entered his land and damaged his cultivation. On the day of incident, in the morning hours, her husband along with the VDP Secretary Taleh Hussain, Abdul Kadir and Safiqul Islam went to the land of Abul Kalam for negotiation and to bring back their cattle. Instead, Abul Kalam released one of his cows onto their tomato cultivation. Seeing the animal her son Sahjahan went to chase away the cattle from the tomato cultivation, while Mojida, the wife of Abul Kalam (appellant No.1) came there and put a rope around her son’s neck and pulled him. Then PW.1 came running to rescue her son and somehow they could rescue him from the clutches of said Mojida. During this time, her husband was in the masjid. Then the accused/appellant No.1 Abul Kalam along with Haraj Ali, Kudus Ali, Rustam Ali, Saidul Islam, Jahirul Islam, Sher Ali and Fatema Khatoon came there carrying lathi, dao, etc. and seeing the accused persons with arms, her son Shah Ali (the deceased) tried to flee from the place. The accused appellant Haraj Ali @ Araj then hit PW-1’s son with a lathi. Thereafter, one Sher Ali shouted and instructed others that the victim should be hit so hard that he does not survive. Thereafter, the other accused persons also started assaulting him and her son died on the spot. She went to the spot to restrain the accused/appellants, but they also assaulted her and her daughters, namely, Manjila and Amina Khatoon. However, Hanifa fled away from the spot. After hearing the commotion, her husband came to the place of occurrence. Thereafter, the accused/appellant No.1 Abul Kalam again hit her husband on his head, hand and back with an iron weapon. After assaulting her son, husband and daughters, the accused persons fled from the place. People gathered there and chased the accused persons. They caught hold of the accused/appellant No.1 Abul Kalam. They also caught hold of other accused persons and informed the VDP Secretary Taleh Hussain. Thereafter, the police was informed, who came to the place of occurrence and took the dead body for post mortem examination. Akkas Ali (PW.2) then lodged the FIR. In her cross-examination, PW-1 denied the suggestion that she did not state before the police what she had stated before the Court.

19. PW.3 is the VDP Secretary who visited the house of the accused/appellant No.1, on the request made by the father of the deceased, as he was informed that the accused/appellant No.1 had confined one of their cattle for three days. They were also accompanied by one Safiqul Islam. He further deposed that they requested the accused/appellant No.1 Abul Kalam to release the cattle of Abdul Barek, who was also ready to compensate appellant no.1 for the loss caused to him by his cattle. Thereafter, some altercation took place between them and the accused/appellant No.1 Abul Kalam chased Abdul Barek while carrying a weapon. Somehow Safiqul, who also accompanied them, restrained the accused/appellant No.1. Soon after the occurrence, they all left the house of the accused/appellant No.1, when he saw the family members of the accused/appellant No.1 arrive on the road with weapons, such as lathi, spear, etc. Some people had also gathered, who requested them to settle the matter. PW-3 also requested both the parties to settle the matter the next day, in presence of other respectable persons of the locality. But on the same day, while he was in the market at about 12:45 p.m., he received information over phone that the accused/appellant No.1 Abul Kalam and his relatives had assaulted Shah Ali and Abdul Barek (PW-11). He was also informed that Shah Ali died on the spot and Abdul Barek (PW-11) was lying on the spot in an injured condition. He immediately informed the matter to the Dhekiajuli Police Station and also Singri Police Out Post. He also directed the villagers to bring Abdul Barek, who sustained grievous injury on his head and was in an unconscious state. Barek was immediately brought to the hospital for treatment. After preliminary check up, the Doctor referred the injured for treatment to Nagaon Civil Hospital. After bringing the injured Barek to Nagaon Civil Hospital at around 8:00 p.m., he left the hospital and went to his house. PW-3 denied the suggestion that he did not state before the police what he had stated before the Court.

20. PW.4 is also one of the eye witnesses, who is also the sister of the deceased. As per her version, when one cattle was released by the accused/appellant No.1 onto their tomato cultivation, her brother Sahjahan went to drive away the cattle. The accused Mojida Khatoon then put a rope around the neck of Sahjahan, in order to strangulate him. He then made a hue and cry, due to which PW.4 along with her mother and Hanifa ran to rescue Sahjahan. Thereafter, the accused/appellant No.1 along with other accused appellants, came armed with weapons and they started assaulting them. Her father and brother also came to the spot and the accused/appellant No.1 and others also assaulted them. Accused/appellant No.1 Abul Kalam also hit Shah Ali on the back of his head by means of a lathi and he died on the spot. The other accused/appellants also assaulted her father severely with weapons, as a result of which he also sustained grievous injuries on his person. After assaulting their family members, the accused/appellants left the place of occurrence and her father was brought to Dhing Hospital for treatment. Thereafter her father was also referred to Nagaon Civil Hospital for further treatment and then to the GMCH.

21. The cross-evidence of the PW.4 reveals that on the day of the incident, she was in her father’s (PW-11) house and the houses of the accused persons were adjacent to her father’s house. Her cross-examination reveals that though the incident had happened near the tomato cultivation, the incident of assault actually took place on the road behind their house. Only the incident of putting a rope around the neck of Sahjahan took place on their tomato cultivation. She also stated that she was not aware as to whether the blood stained clothes of her father were seized by the police or not. She also denied the suggestion that on the day of occurrence, the deceased Shah Ali came with a weapon, i.e. ballam, in order to assault the accused, but when the accused came forward, he himself sustained the injury with the ballam he was carrying and accordingly died.

22. PW.5 is not an eye witness and he came to know about the incident when he met the VDP Secretary Taleh Hussain (PW.3), who informed himthat the accused/appellants had killed the son of Abdul Barek, namely, Shah Ali and that they had also assaulted Abdul Barek, causing grievous injuries on his person.

23. PW.6 is the Doctor who conducted post mortem examination on the dead body of the deceased Shah Ali and as per his medical evidence and the post mortem report, the deceased sustained multiple fractures of occipital bone. Bleeding from the scalp of the posterior part of the occiput. Size was 3 cm. x 1 cm. Haematoma seen on the occipital lobe. Size was 6 cm x 5 cm x 6 cm and the other structures were found to be normal. The injuries were ante mortem in nature and as per his opinion, death was caused due to haemorrhage and shock, as a result of the injuries sustained by the deceased.

24. PW.7 is another witness who was in the market at the relevant time of the incident, who heard that Shah Ali had been murdered and on returning home, he saw the police personnel who were conducting investigation. He further deposed that on the earlier day, at about 8:00 a.m., he accompanied Abdul Barek, the father of the deceased and the VDP Secretary Taleh Hussain (PW.3) to the house of the accused/appellant No.1, who had confined one cattle of Abdul Barek, alleging that it had destroyed some portion of his bean cultivation. Corroborating the evidence of PW.3, this witness also deposed that the VDP Secretary (PW.3) requested the accused/appellant No.1 to release the cattle. When the accused appellant No.1 insisted that the son of Abdul Barek, namely, Hanif should come to take the cattle, there was an altercation between the appellant No.1 and said Abdul Barek. However, the VDP Secretary proposed to settle the matter by calling the police and other villagers. But, the incident happened, where the son of Abdul Barek was killed.

25. PW.8 (sister of the deceased) is another eyewitness, who corroborated the testimony of PW.1 and PW.4. She deposed that when her father Abdul Barek along with the VDP Secretary Taleh Hussain (PW.3) and Safiqul Islam (PW.7) visited the house of the accused/appellant No.1 with a request to release their cattle, the accused/appellant No.1 refused their request and declared that he would take food only after killing Shah Ali. On the day of the incident, at around 12:00 p.m., one Majida Khatoon released one cattle of the accused/appellant No.1 onto their tomato cultivation and when her brother Sahjahan Ali went to drive away the cattle, the said Majida Khatoon put a rope around the neck of Sahjahan, in order to strangulate him. She also corroborated the evidence of PW.1 and PW.4 that, after hearing a hue and cry, she along with her mother (PW.1) and sister (PW.4) went to the rescue of Sahjahan and somehow they rescued him. Thereafter, the accused/appellants came to their house and started hitting the walls of their house. Her brother i.e. deceased Shah Ali, out of fear concealed himself behind the leaves of a coconut tree and at that time, she was also inside her house with her new born baby. The accused/appellants Abul Kalam and Araj Ali entered the house and assaulted her and Shah Ali with lathi. She also received injury on her hand. The accused/appellants caught hold of Shah Ali and took him away towards the road, assaulting him with a lathi. As a result, her brother Shah Ali died on the spot. When her father and her brother came to the place of occurrence, the accused/appellants, namely, Araj Ali and Rustam Ali also assaulted her father with lathi and ekkatia (pointed weapon like spear), due to which her father sustained grievous injuries on his person.

26. In her cross-evidence, the PW.8 stated that she did not make any statement before the police and the police also did not enquire from her about the incident, as her brother Taleh Hussain forbade her to do so, besides she was carrying a new born baby on her lap. The evidence of PW-8 revealed that her deceased brother was a student of Class-VIII. She denied the suggestion that she deposed falsely before the Court, regarding the fact that the accused/appellants had assaulted her father and murdered her brother.

27. PW.9 is another brother of the accused/appellant No.1 and he stated that he heard about the incident when he was in Dumdumia Bazar, to the effect that his brother i.e. the accused/appellant No.1 Abul Kalam, had killed his nephew Shah Ali.

28. PW.10 stated that he came to know about the incident and accordingly visited the house of Abdul Barek and noticed the dead body of Shah Ali. He also accompanied the dead body to the hospital and also put his thumb impression on the inquest report. He heard that the accused/appellant No.1 Abul Kalam and others assaulted Abdul Barek and others and as a result of which, the son of Abdul Barek died on the spot.

29. PW.11 is one of the injured witnesses in this case and also the father of the deceased Shah Ali. On the date of incident, at about 12.30 P.M., while returning from Masjid, he noticed that Kalam had released one cattle onto their tomato cultivation. He then sent his son Sahjahan to drive away the cattle. But the wife of the accused/appellant No.1 Abul Kalam put a rope around the neck of his son and pulled him. However, his wife and his daughter somehow rescued their son Sahjahan. Thereafter, the accused/appellant No.1 directed the other accused persons to leave Sahjahan (deceased) and to catch him (PW.11). PW-11 saw the accused/appellants namely, Abul Kalam, Arej Ali and Rustam Ali along with others, armed with weapons, come to their house and catch hold of his son Shah Ali and assaulted him. He tried to stop the accused/appellants from assaulting his son, but the accused/ appellants, namely, Araj Ali and Rustom Ali assaulted him with lathi on his back and abdomen. Accused Abul Kalam also stabbed him on his head and hand, for which he sustained grievous injuries and all the accused persons continued to assault his son Shah Ali. PW-11 could not say as to what had happened thereafter, as he became unconscious due to the assault suffered by him. He regained his consciousness in Nagaon Civil Hospital and thereafter he was referred to the GMCH. After three days of the incident, he came to know that his son Shah Ali had died. He also narrated the story as to how one of his cattle was confined by accused/appellant No.1 Abul Kalam, alleging that the said calf entered his cultivated land. On the day of incident, at about 7:00 A.M., he along with PW.3, PW.5 and PW.7 visited the house of accused/appellant No.1 Abul Kalam and requested the release of his cattle. But the appellant No.1 refused to do so, even though PW-11 had agreed to compensate the loss suffered by the accused. Instead of releasing the cattle, the accused/appellant No.1 stated that he would kill Hanif, if he comes back to take back the cattle. Though an altercation took place between him and the accused/appellant No.1, the VDP Secretary Taleh Hussain (PW.3) assured him that the case would be settled. However, on the same day, he lost his son.

30. From the cross-evidence of the PW.11, it is seen that he was not aware as to when the police visited the place of occurrence and he was also not aware as to whether the police had seized any articles/weapons from the place of occurrence. He also denied the suggestion that he did not state before the police that as per direction of Kalam, the other accused persons entered their house, brought out his son Shah Ali and assaulted him with lathi and rod, due to which his son died. He also denied the suggestion that the accused/appellants were falsely implicated and that he had cooked up a story. He denied the suggestion that his son Shah Ali had a quarrel with the villagers, for which there was a scuffle and as a result, he sustained injuries and died. He also denied the suggestion that he did not receive minor injuries and that no incident had occurred, as narrated by him.

31. PW.12 is the Investigating Officer of this case who was posted as the incharge of Singri Police Out Post under Dhekiajuli Police Station, at the time of the incident. On that day at around 2:00 P.M, the VDP Secretary, namely, Md. Taleh Hussein informed him through mobile that a mar-pit had taken place between brothers and one died due to the same. After receiving the information, he made a GD Entry and also informed the matter to the authority concerned and immediately left for the place of occurrence with his staff. At around 9:00 P.M., he reached the place of occurrence and found the dead body of one Shah Ali, kept in front of the Masjid. Accordingly he drew the sketch map, recorded the statement of witnesses and also sent the dead body of the deceased for post mortem examination. He came to know that the father and brother of the deceased received injury and they were taken to Nagaon Civil Hospital for treatment. The public apprehended the accused persons and thereafter, they were taken into custody. Inquest was done on the dead body by the Magistrate at Dhekiajuli Police Station and then the body was sent for post mortem examination. After preliminary interrogation, the accused persons were forwarded to the Court after arrest. During investigation, he collected the post mortem report and the injury reports of the victims. After completion of the investigation, he submitted the charge sheet against the accused persons under Sections 302/323/34 of the IPC. From the cross-evidence of the PW.12, it reveals that he received the information from the VDP Secretary Taleh Hussain (PW.3) at 2:00 P.M. However, he could reach the place of occurrence at about 9:00 P.M only. PW-12 was confronted with the statements of the prosecution witnesses vis-a-vis the statements made before him under Section 161 Cr.P.C.

32. It is seen that there are some minor contradictions in the evidence of the prosecution witnesses and they have not made a full description of the incident. However, the cross-examination of the I.O. reveals that the basic version of the prosecution witnesses could not be shaken. Though PW.1 did not give the full description of the incident in his testimony, she stated that her son had gone to the place of occurrence, when the appellant No.1’s cattle entered their cultivation patch. PW.1 also stated that all the accused persons formed a group and came out with bamboo lathi and iron spear to attack them. The evidence of PW-12 also reveals that PW.1 stated before him that all the accused persons assaulted Shah Ali with lathi and iron weapon, due to which her son died at the spot. She also stated before the PW.12 that all the accused persons assaulted her husband. Similarly, the PW.3 also stated before the I.O. that the accused/appellant No.1 Abul Kalam confined the cattle of Abdul Barek in his house and it is also stated by PW.3 that accused/appellant No.1 Abul Kalam told his family members to bring weapons. Similarly, PW.4 who is another eye witness in this case, also stated that at the time of recording of her statement under Section 161 Cr.P.C, all the accused persons hit her son Shah Ali on the back of his head, though she specifically did not mention as to who assaulted the deceased.

33. It seems that the PW.7 also did not elaborately speak about the incident, but the evidence of the I.O. reveals that PW.7 stated before the I.O that the accused/appellant No.1 Abul Kalam attacked Abdul Barek and he had stopped Abul Kalam from attacking Abdul Barek. Similarly, though PW.11, one of the injured of this case, did not elaborately state as to how his son was attacked or under whose instruction his son was attacked, PW.11 stated before PW.12 that Abul Kalam, in the presence of the VDP Secretary, chased him with a “cheni” in his hand.

34. Thus from the evidence of PW.12 i.e. the Investigating Officer, it is seen that though the prosecution witnesses did not give detailed descriptions of the entire incident, the statement of these witnesses supported the prosecution case, which was in consonance with the charge sheet.

35. From the discussions made above, it is seen that the entire incident started with the appellant No.1 confining Abdul Barek’s cattle. When Abdul Barek (PW.11), accompanied with PW.3 and PW.7, went to the house of accused/appellant No.1 Abul Kalam, with a request to release his cattle, he refused to release the cattle. An altercation ensued where the accused/appellant No.1 Abul Kalam threatened that he would kill PW-11’s son. The accused/appellant No.1 Abul Kalam also chased Abdul Barek, but somehow he was stopped by the PW.3 and PW.7. Thereafter, on the same day at about 12:30 P.M., the incident happened, wherein the accused/ appellants assaulted PW.11’s son, the deceased Shah Ali, who sustained grievous injury on his head and died on the spot. PW.11 also sustained grievous injuries on his person. He was also admitted initially in Dhing Hospital and thereafter in Nagaon Civil Hospital and finally he was referred to the GMCH. The evidence of the PW.11 reveals that he was unconscious and he was not in a position to say as to how his son died. He regained his senses in Nagaon Civil Hospital.

36. PW.1, PW.4, PW.8 and PW.11 are injured eye witnesses and their testimonies corroborate each others evidence. The problem started with the cow of PW.11 damaging the cultivation on the land of the accused/appellant No.1, which was confined by him for 3 days. Thereafter, as stated by them, one of the cattle of the accused/appellant No.1 Abul Kalam was released on to their tomato cultivation and the son of Abdul Barek tried to chase away the cattle. He was caught by the wife of the accused/appellant No.1 Abul Kalam, who put a rope around his neck. He was rescued by PW.1, PW.4 and PW.8. However after his rescue, all the accused persons, armed with weapons, assaulted the deceased Shah Ali, who was only 13 years old, due to which he died on the spot. The accused/appellants not only assaulted the deceased, but also caused grievous injuries on the PW.11, who was admitted in the Hospital in the same incident. The other prosecution witnesses are not eye witness to the crime but as stated above, PW.3 and PW.7 were present during the morning hours, when they also accompanied PW.11 to the house of the accused/appellant No.1 Abul Kalam, requesting the release of the cow of PW.11.

37. The evidence of the prosecution witnesses reveals that PW.3 initially gave information to the Singri Police Out Post and accordingly, PW.12 accordingly made a G.D. entry and visited the place of occurrence, after receiving the information. Thereafter one written FIR/complaint was lodged by PW.2.

38. The learned Addl. Sessions Judge, Sonitpur acquitted five co-accused, after discussing the evidence in detail in his judgment and hence, the present appeal has been preferred by the 3 convicted accused appellants, namely, Abul Kalam, Araj Ali and Rustom Ali, who were involved in the murder of the deceased, as well as causing grievous injuries to PW.1, PW.4, PW.8 and PW.11.

39. Though there are some minor contradictions in the evidence of the prosecution witnesses, the core testimonies of the prosecution witness remain unshaken, i.e the accused appellants assaulted the 13 year old boy due to which he died and that PW.11 sustained grievous injuries on his person and had to be hospitalized. After giving preliminary treatment in Dhing Hospital, he has referred to Nagaon Civil Hospital and finally admitted in the GMCH. PW.1, PW.4 and PW.8 also sustained injuries. The medical evidence also supports the prosecution version.

40. It is a settled position of law that minor discrepancies not touching upon the core of the matter does not weaken the prosecution case or vitiate the trial. In the case of Thoti Manohar Vs. State of Andhra Pradesh, reported in (2012) 7 SCC 723, the Hon’ble Supreme Court held that “No evidence can ever be perfect for man is not perfect and man lives in an Imperfect world. Thus, the duty of the court is to see with the vision of prudence and acceptability of the deposition, regard being had to the substratum of the prosecution story.”

41. It is also seen that all the eye witnesses i.e. PW.1, PW.4, PW.8 and PW.11 are also the injured witnesses of this case and belong to the same family. But only because of they being close relations, the testimonies of these witnesses cannot be disbelieved, especially when they also sustained injuries. Further, they lost their 13 year old boy in front of their eyes. In the case of Abhishek Sharma v. State (Govt. of NCT of Delhi) reported in 2023 SCC OnLine SC 1358, the Hon’ble Supreme Court held that the evidence of witnesses cannot be discarded, merely on the ground that they are interested or close relatives of the deceased, if otherwise the witnesses evidence are found trustworthy and credible. Here, in the instant case also, it is seen that there is nothing to disbelieve the evidence of all the eye witnesses cum injured witnesses as they narrated the same story, corroborating each others evidence, as to how the appellants along with other persons had assaulted them and murdered the deceased Shah Ali. The evidence of PW.3 and PW.7 also corroborates the evidence of the eye witnesses, as their evidence gives the reasons for the said incident.

42. The learned counsel for the accused appellants Mr. Mahajan submitted that the entire incident had happened only due to a quarrel between two groups and after a sudden fight. There was also provocation from the informant’s side for which the incident had occurred. There was no premeditation of mind, either to kill the deceased or to assault the PW.11. More so, there is no any evidence, specifically against the present appellants that they assaulted the PW.11 as well as the deceased. Mr. Mahajan, the learned counsel for the accused appellants accordingly submitted that that the death of the deceased is not denied by the accused appellants and the case at best, may fall under Section 304 Part I of the IPC or Exception 4 to Section 300 of the IPC. Mr. Mahajan accordingly submitted that from the circumstances of this case, it may fall under the Exception 4 of Section 300 of the IPC, which provides that “culpable homicide is not murder” if it is committed in a sudden fight without premeditation, in the head of passion, and without the offender taking undue advantage or acting in a cruel or unusual manner. Mr. Mahajan submitted that it is evident from the testimonies of the prosecution witnesses that a quarrel/altercation took place between the parties due to confinement of cattle of the PW.11, as it allegedly destroyed the bean cultivation of the accused appellants. Thus, due to altercation and a sudden fight between the parties, the incident happened, without there being any premeditation or intention to kill the deceased or to cause injuries on the person of PW.11.

43. Now it is to be seen as to whether the case falls under the Exception 4 of Section 300 of the IPC, to warrant conviction against the accused appellants under Section 304 Part I of the IPC. “Whenever a court is confronted with the question whether the offence is murder or culpable homicide not amounting to murder on the facts of a case, it will be convenient for it to approach the problem in three stages. The question to be considered at the first stage would be, whether the accused has done an act by doing which he has caused the death of another. Proof of such causal connection between the act of the accused and the death, leads to the second stage for considering whether that act of the accused amounts to “culpable homicide” as defined in Section 299 of the IPC. If the answer to this question is prima facie found in the affirmative, the stage for considering the operation of Section 300, Penal Code, is reached. This is the stage at which the Court should determine whether the facts proved by the prosecution bring the case within the ambit of any of the four Clauses of the definition of ‘murder’ contained in Section 300 of the IPC. If the answer to this question is in the negative the offence would be ‘culpable homicide not amounting to murder’, punishable under the first or the second part of Section 304, depending, respectively, on whether the second or the third Clause of Sec. 299 is applicable. If this question is found in the positive, but the case comes within any of the Exceptions enumerated is Section 300, the offence would still be ‘culpable homicide not amounting to murder’, punishable under the First Part of Section 304, Penal Code.” [State of AP vs. Rayavarapu Punnayya and anr. reported in AIR 1977 SC 45].

44. The Hon’ble Supreme Court in the case of Rampal Singh vs. State of Uttar Pradesh reported in (2012) 8 SCC 289 held that “where the act committed is done with the clear intention to kill the other person, it will be a murder within the meaning of Section 300 of the Code and punishable under Section 302 of the Code, but where the act is done on grave and sudden provocation which is not sought or voluntarily provoked by the offender himself, the offence would fall under the exceptions to Section 300 of the Code and is punishable under Section 304 of the Code. Another fine tool which would help in determining such matters is the extent of brutality or cruelty with which such an offence is committed”.

45. In case of Aradadi Ramudu vs. State reported in (2012) 5 SCC 134, the Hon’ble Supreme Court also took the view that for modification of sentence from Section 302 of the Code to Part II of Section 304 of the Code, “not only should there be an absence of the intention to cause death, but also an absence of intention to cause such bodily injury that in the ordinary course of things is likely to cause death”.

46. But here in the instant case, from the entire discussion of the prosecution witnesses, it is seen that initially there was a quarrel/altercation between the PW.11 and the accused appellants, when in the morning hours, PW.11 visited the house of the accused appellant No.1 with a request to release his cattle, when he was accompanied by PW.3 and PW.7. However, from the evidence of the prosecution witnesses, it is seen that at that time also the accused appellant No.1 threatened to kill the son of the PW.11 and in the subsequent events, all the accused persons came armed with lathi and other weapons, assaulted the victims and also hit the 13 year old boy on his head, causing instant death of the deceased. The evidence of the prosecution witnesses show that PW.1 had identified the appellant No.2 as having hit the deceased and PW.11, while the evidence of PW.8 is that the respondent No.3 had hit PW.11. The evidence of PW.11 is that the appellant No.1 hit him and stabbed in his head and hand. All these events happened together in one incident and as such, the action of the appellants was in furtherance of their common intention to kill the deceased and PW.11.

47. Thus from the circumstances of this case, it is seen that it is not a case of any sudden fight nor was there any provocation from the side of the victim. All the accused appellants came armed with lathi etc., with a with a premeditated mind to kill the 13 year old son of the deceased. Out of fear, deceased Shah Ali tried to hide himself, but the accused appellants caught hold of him and assaulted him due to which he died instantly. Thus, from the entire facts and circumstances of this case, it cannot be said that the incident had happened or the deceased died only due to a sudden fight between the parties or due to some provocation, without any premeditation of mind, to bring the case of the accused appellants under the Exception 4 of Section 300 of the IPC, to modify the conviction and sentence to Section 304 Part I or Part II of the IPC. Rather it is seen that the accused appellants had chased the victims to their house and caught hold of the deceased and assaulted him, causing grievous injuries on his head. At the same time, they also assaulted the PW.11, causing injuries on his person, for which he also had to be hospitalized for several days. They also did not spare the PW.1, PW.4 and PW.8, who were the mother/sisters of the deceased.

48. In view of the foregoing discussions, we are of the opinion that the prosecution have established that the present accused appellants, in furtherance of their common intention, had caused grievous injuries on the person of the PW.1, PW.4, PW.8 and PW.11 and had also committed the murder of the deceased Shah Ali.

49. Accordingly, we do not find any ground to interfere with the impugned judgment and order of conviction dated 19.11.2019, passed by the learned Addl. Sessions Judge, Sonitpur, in Sessions Case No.138/2018. The appeal is dismissed.

50. This Court appreciates the assistance rendered by Ms. P.B. Bordoloi, learned Amicus Curiae while conducting the case and accordingly, the Assam Legal Services Authority is hereby directed to provide her remuneration as per the applicable norm.

51. Send back the TCR forthwith with a copy of this judgment.