Judgment & Order (Oral)
Akil Kureshi, CJ.
This appeal is filed by the original accused who have been convicted for the offence punishable under Section 302 of IPC read with Section 34 thereof and sentenced to undergo life imprisonment by the impugned judgment dated 04.01.2017 passed by the learned Additional Sessions Judge, Khowai, West Tripura.
 Briefly stated the prosecution version is that on 01.10.2014 at about 3 ‘O’ clock in the afternoon one Satyam Sukla Das, brother of the complainant Uttam Sukla Das had gone to a water supply point to wash utensils. At that time wife and daughter of the accused No.1, Manoranjan Shukla Das were present there. There was a brief quarrel between said Satyam Sukla Das and the said two ladies about the water tap being left open. Soon the ladies called the two accused Manoranjan Shukla Das, accused No.1 and Mithun Sukla Das, accused No.2 who were their relatives. Manoranjan came with a piece of wood. He gave one blow with the said object on the hand of Satyam Das. He thereafter gave another blow on the head. At which time, the accused No. 2 Mithun Das had caught hold of Satyam Das. Satyam Das thereupon fell down on the ground bleeding. He was shifted to a nearby hospital from there was referred to G.B.P. Hospital but soon succumbed to his injuries. His brother thereupon filed an FIR before the concerned police station.
 Upon completion of investigation the police filed a charge sheet against both the accused. The Sessions Court framed the charge alleging that the two accused had committed offence of murder punishable under Section 302 read with Section 34 IPC.
 PW-1, Uttam Sukla Das, the complainant, was not an eye witness. In his deposition he repeated the incident as narrated in the FIR. According to which, after a brief quarrel between the two ladies related to the accused and the deceased, the deceased was attacked by accused No.1 with a log of wood during which one blow was given on the hand another on the head. The role attributed to the accused No.2 was of catching hold of the deceased when he was thus assaulted.
 There were several eye witnesses to this incident. We may briefly refer to the testimonies of these eye witnesses. PW- 2, Smti. Tompa Rani Sukla, the wife of the complainant deposed that on the date of incident she was at her house when she heard the quarrel at the water distribution point which was situated at a distance of about 20 cubit from her house. Upon hearing the quarrel she went to the place and saw the wife and daughter of the accused No.1 quarrelling with her brother Satyam Das. Upon being called by the ladies, the two accused came to the scene. Accused No.1 was carrying a piece of wood with which he gave one blow to the deceased on his hand. Accused No.2 held in whereupon the accused No.1 gave another blow on his head. Nothing significant has come out in the cross-examination of this witness.
 PW-3, Smti. Sefali Sukla Das also a sister of the complainant was another eye witness. She was also at her home when the quarrel took place. Upon hearing the quarrel she went there and according to her, she witnessed the incident where the accused No.1 gave the said two blows to the deceased during which time the accused No.2 had held him.
 PW-4, Smti. Dipali Sukla Das also sister of the complainant was yet another eye witness. She was at her home when the incident took place. She heard the quarrel going on upon which she went to the site and saw the deceased being assaulted by the accused No.1 with the wooden plank when the accused No. 2 had caught him.
 PW-6, Smti. Purnima Sukla Das was a cousin sister of the complainant. She was at home when the incident took place. Upon hearing the shouts she went to the site and saw the accused No. 1 assaulting the deceased with wooden plank when the accused No.2 had caught him.
 PW-7, Smti. Rina Telenga was the resident of the said locality. She was at home when the incident took place. Upon hearing the shouts she went to the site and saw that after a brief quarrel the accused No.1 hit the deceased on the hand and on the head with a log of wood. Significant aspects of the deposition of this witness are that unlike other witnesses she is not related to the complainant or to the deceased and unlike other eye witnesses referred to earlier, she does not attribute the role of the accused No.2 holding the deceased when the accused No.1 gave him the blow on the head.
 PW-9, Sri Manojit Sukla Das is yet another eye witness. He was resident of the same locality. He heard the shouts upon which he went to the site and saw after a brief quarrel the accused No.1 gave a blow on the deceased on the hand and thereafter on his head by which time the accused No.2 had caught him.
 There are other witnesses examined by the prosecution who had seen the deceased in unconscious state shortly after the incident or who claim to have seen the accused No. 1 walking away with a piece of wood in his hand. None of these being the eye witness to the actual attack, it is not necessary to refer to the evidence of these witnesses.
 Dr. Pradipta Narayan Chakraborty, PW-16 had carried out the post mortem on the dead body. He had produced the PM Note, Exbt.6/1. According to him the deceased was carrying a head injury on right fronto parietal region. This had caused internal hemorrhage and damaged to the brain. In his PM note he had also recorded a skull fracture. According to him this ante mortem injury was sufficient in ordinary course of nature to cause death. Such injury could have been caused with a hard and blunt object. He had also noted minor injury on the hand of the deceased.
 PW-13, Shri Dipak Kumar Roy, Sub-Inspector of police, Khowai police station had carried out the investigation. He gave the details of the steps taken by him during the course of such investigation in his deposition. In his cross-examination the defence tried to bring about the inconsistency in the deposition of some of the prosecution witnesses. However, so far as the eye witnesses are concerned, except for pointing out that these witnesses have not referred to the presence of other eye witnesses, no major contradictions have been extracted.
 This in the nut shell is the evidence on record. From such evidence, it can be immediately seen that the involvement of the accused No.1 in causing the injuries to the deceased with a piece of wood is fully established. There are several eye witnesses who have given a consistent and clear version of the deceased having gone to the water distribution point to wash dishes when the two ladies related to the accused were present. There was a quarrel between the deceased and these two ladies about the leakage of water. The two accused thereupon arrived at the scene. Accused No.1 was carrying a piece of wood. After some heated arguments he gave one blow on the hand of the deceased first and thereafter another blow on his head. So much is coming out from the depositions of Smt. Tompa Rani Sukla Das(PW-2), Smt. Shefali Sukla Das(PW-3), Smt. Dipali Sukla Das (PW-4), Smt. Rina Telenga(PW-7) and Sri Manojit Sukla Das (PW-9). These witnesses were either relatives of the deceased or were residence of the same locality. The incident took place a short distance away from the houses of the deceased and the accused and these witnesses. There was a prelude to the assault where there was a quarrel between the two ladies and the deceased upon which the two accused arrived at the scene of incident. All the witnesses had gone to the site upon hearing such heated arguments. Their presence at the scene of incident was thus natural. The incident did not take place in a short time where there was no possibility of witnesses to collect. All the witnesses have explained that upon hearing the hue and cry they went to the site after which the incident took place. Considering the place where the incident took place, the close proximity of the place of incident to the houses of the witnesses, the time when the incident took place and lastly the fact that there was a quarrel before the actual assault took place, makes the presence of several witnesses quite natural. In fact the defence has not seriously disputed the presence of these witnesses at the scene of incident.
 Evaluating the evidence of these eye witnesses it would show that the witnesses have consistently attributed two blows on part of the accused No. 1 with a piece of wood he was carrying. First blow was given on the hand of the deceased which was followed by another blow on the head.
 The evidence of these witnesses is duly corroborated by the medical evidence. Dr. Pradipta Narayan Chakraborty, PW- 16 who had carried out the post mortem had recorded the injury on the head, on the right temporal lobe and hand. It was this head injury which was serious. It had caused internal hemorrhage, damage to the brain and also a skull fracture.
 Involvement of the accused No.1 in assaulting the deceased and causing such injuries is thus duly established form the evidence on record. However, when it comes to the involvement of the accused No.2, the evidence is not so consistent or clear. Firstly, the only role attributed to him by the eye witnesses was of catching hold of the deceased when the accused No.1 gave second blow, this time on his head. Most crucially, PW-7 who is a witness not related to the deceased, did not attribute any role to the accused No.2. All other eye witnesses barring PW-9 were related to the deceased. PW-7 and PW-9 were the only two unrelated eye witnesses. When one of them did not attribute any role to accused No.2, the version of other witnesses in this respect becomes doubtful. Even if we believe that accused No.2 had held the deceased during the quarrel, there is nothing to suggest that he shared the common intention of the accused No.1 of causing a serious injury to the deceased on his head. The possibility that the said accused might be scuffling with the deceased cannot be ruled out.
 Coming to the question of the conviction of accused No. 1, in our opinion the evidence on record does not justify his conviction under Section 302 of IPC. The facts which are relevant in this context are that there was a sudden quarrel between the lady relatives of the accused No.1 and the deceased upon which the deceased came to the site. He was carrying a piece of wood in his hand which cannot be stated to a deadly weapon. In any case, in the rural areas it would be common for agriculturist and labourers to carry such instrument in hand even under ordinary times. It cannot therefore, be stated that the accused No.1 came to the scene of incident with pre-meditation or was armed with a deadly weapon. Further, he gave only one blow on the vital part of the body of the deceased. Another blow was on the hand wh
Please Login To View The Full Judgment!
ich had not caused any serious injury. Lastly, the deceased was alone, nothing prevented the accused No.1 from giving further multiple blows after the deceased fell down on the ground, if his intention was to cause death or to cause such deadly injuries which were in ordinary course of nature sufficient to cause death. His conviction and sentence for offence under Section 302 of IPC therefore, must be reduced to that under Section 304 Part II of IPC.  In the conclusion therefore, conviction of accused No.1 for offence under Section 302 of IPC is set aside. Resultantly, life imprisonment is also set aside. His conviction is instead recorded for offence under Section 304 Part II of IPC. He shall undergo rigorous imprisonment for a period of seven years. Direction for payment of fine and default sentence against him contained in the impugned judgment remain unchanged. Conviction and sentence of accused No.2 are set aside. He is acquitted of the charges. Judgment of the trial Court is modified to this extent.  Appeal is partly allowed and disposed of accordingly. Record and proceedings be transmitted to the trial Court. Pending application(s), if any, also stands disposed of.