JUDGMENT : S.K. Medhi, J. The instant appeal has been preferred from jail against a judgment & order dated 28.01.2022 passed by the learned Sessions Judge, Karbi Anglong, Diphu in connection with Sessions Case No.26/2017 (New) arising out of GR Case No. 191/2015 convicting the appellant under Section 302 of the IPC and sentencing him to undergo rigorous imprisonment for life and also to pay fine of Rs.10,000/- with default stipulation. 2. The criminal law was set into motion by lodging of an Ejahar on 06.03.2015 by the PW3 stating inter alia that on 05.03.2015 at about 7:30 pm, the appellant had grievously injured Shri Sursingh Gaur @ Bankot Gaur, who was his father-in-law by assaulting him on the head with a lathi made of stump of bamboo whereafter, the deceased was brought to Dokmoka Primary Health Centre, where he succumbed to his injuries. Based on the Ejahar, the FIR was registered as Dokmoka PS Case No.17/2025 under Section 302 of the Indian Penal Code. 3. After completion of the investigation, the charge sheet was submitted whereafter, the charges were framed. On denial of the same, the trial had begun in which the prosecution had adduced evidence through 11 nos. of witnesses including the doctor and the IO. 4. PW1 is a neighbor who had stated that the fateful day was the day of Holi festival, when he had heard a hue and cry and had arrived in the front of the house of the deceased and could learn that the accused had assaulted the deceased. Thereafter, a 108 ambulance had come and the deceased was taken to the hospital and on the next date, he could learn that the deceased had succumbed to his injuries. 5. PW2 is the daughter of the deceased and also the wife of the accused. She deposed that there was a scuffle between the accused and deceased, following a quarrel and in the same, the head of the deceased got hit against a betel nut tree causing injury on his head and he became unconscious and fell on the ground. She had accordingly raised a hue and cry whereafter, the villagers had come and took her father to the hospital in 108 ambulance. Her father had passed away on the same night. She had accordingly raised a hue and cry whereafter, the villagers had come and took her father to the hospital in 108 ambulance. Her father had passed away on the same night. In the cross examination, she had stated that both the deceased and the accused were in an inebriated stage and the deceased was so inebriated that he could not even stand. 6. PW3 is the informant who is also the brother of the deceased. He had stated that his house is situated near the house of the deceased and after finishing his meal in the evening, he could see the appellant hitting on the wall of his house with a big lathi and accordingly, he had asked the appellant not to do so, as the same would cause damage. Thereafter, he had left his house and started hitting the wall of the house of the deceased, when the appellant was tried to be resisted by the PW3, he was pushed down when the deceased had come out of the house and at that time, the appellant had dealt a blow on his head with lathi, which was in the hand. The deceased had fallen down on the ground instantly and his head got cracked and blood started oozing out. He had accordingly called the VDP member who had come and the police was informed. In the meantime, the appellant had fled away from the place of occurrence and after searching, he was found hiding in a latrine of a villager's house. The VDP members had secured the appellant by tying him in a place near their house, whereafter the police had come. The deceased was taken to the Dokmoka Hospital and was advised to be shifted to the Nagaon Civil Hospital which was done on the night itself. However, the deceased passed away. He deposed of clearly witnessing the appellant injuring the deceased by striking him with a bamboo lathi. He had accordingly lodged the Ejahar which was proved as Exhibit 1. In the cross-examination, he clarified that he could see the hitting as he was nearby. He has also admitted that there was little darkness and yet he could witness the same. 7. PW4 is a co-villager who however appears to be a hearsay witness. He had accordingly lodged the Ejahar which was proved as Exhibit 1. In the cross-examination, he clarified that he could see the hitting as he was nearby. He has also admitted that there was little darkness and yet he could witness the same. 7. PW4 is a co-villager who however appears to be a hearsay witness. He had deposed that he heard from the villagers of the incident and also later heard that the deceased had died in the hospital. In the cross-examination, he had however stated that though the houses were adjacent, he did not hear any commotion. 8. PW5 is also a co-villager, whose residence is about a kilometer away from the place of occurrence. He had also deposed of hearing the incident from the villagers. 9. PW6 is a co-villager, who had stated that at that time, he was a Dokmoka and was informed about the death whereafter he had come to the place of occurrence. He had deposed that he had rescued the appellant from public and informed the police. He is also a seizure witness, so far as the piece of bamboo is concerned. In his cross-examination, he had however clarified that his deposition was on the basis of what he heard from the villagers. 10. PW7 is also a co-villager, who appears to be a hearsay witness and the same has been confirmed in the cross-examination. 11. PW8 is the Doctor, who had conducted the postmortem upon the deceased. As per his opinion, the death was caused due to head injuries. The following opinion was given: “In my opinion the cause of death was shock and intra cranial hemorrhage due to head injuries sustained.” In his cross-examination, he had however deposed that such injuries could be sustained by falling on hard substance. For ready reference, the same is extracted hereinbelow: “xxx Injuries can be sustained falling on the hard substance.” The Post-Mortem Report was proved as exhibit 3. 12. PW 9 is a Police Officer, who had done the preliminary investigation. He had deposed that a telephone call was received by the Officer-in-Charge whereafter GD Entry No. 285 was registered and preliminary investigation was done through him. In his cross-examination, he had stated that fingerprint of the accused was taken. However, he was not aware of any report from the FSL. 13. He had deposed that a telephone call was received by the Officer-in-Charge whereafter GD Entry No. 285 was registered and preliminary investigation was done through him. In his cross-examination, he had stated that fingerprint of the accused was taken. However, he was not aware of any report from the FSL. 13. PW10 is the Investigating Officer who had deposed that he was posted as the 2nd Officer in the Dokmoka PS. He had deposed of doing all the investigation, leading to laying of the charge sheet, which has been proved as Exhibit 5. In the cross-examination, he had however, revealed that the seized materials were not sent to FSL. 14. PW 11 is the In-Charge of the Bhugeswari Phukanani Civil Hospital, Nagaon, who had conducted the inquest. The Inquest Report has been proved as Exhibit 6. 15. After conclusion of the prosecution witnesses, the incriminating circumstances emanating from the said depositions were put to the appellant in his examination under Section 313 of the CrPC, where he had denied the allegations. The appellant had also not offered to produce any defence witness. 16. After consideration of the materials on record and after hearing the learned counsel for the parties, the impugned judgment dated 28.01.2022 has been passed, which is the subject matter of challenge in the present appeal. 17. We have heard Shri NJ Das, learned Amicus Curiae for the appellant. We have also heard Shri RR Kaushik, learned Additional Public Prosecutor, Assam. 18. Shri Das, the learned Amicus has submitted that apart from the PW2 and PW3, all other witnesses appear to be hearsay and therefore may not be relevant. He has however, submitted that even in the deposition of PW2 and PW3, there are gross inconsistencies. He has highlighted that while the PW2 has categorically stated that there was a quarrel between the appellant and the deceased which led to a fight in which the appellant had pushed the deceased and his head got hit against a betel nut tree causing the injuries, she has also stated that both the appellant and the diseased were heavily drunk. The learned Amicus has thereafter led this Court to the deposition of PW3, who had deposed of witnessing the appellant hitting the deceased with a lathi causing the injury, which caused his death. The learned Amicus has thereafter led this Court to the deposition of PW3, who had deposed of witnessing the appellant hitting the deceased with a lathi causing the injury, which caused his death. PW3 had also confirmed witnessing such incident in spite of the darkness which had set it during the time when the incident had taken place. The learned Amicus has submitted that there being apparent gross inconsistencies in the versions of PW2 and PW3, it is version of the witness, which is towards the innocence of the accused, that should be taken into consideration and accepted. He has also highlighted that PW2 was not declared as hostile and therefore, there was a legal obligation for due consideration of such evidence. 19. The learned Amicus has submitted that the prosecution had also failed in not examining the wife of the deceased, who was very much available at the place of occurrence. He has submitted that as per the opinion of the Doctor who had conducted the post-mortem, the injury can also be sustained by falling on hard substance. 20. By drawing the attention of this Court to the Post Mortem Report, more particularly to the nature of the injuries, the learned Amicus has submitted that it appears that there was only one blow which had caused death. He has submitted that the PM Report, however, does not mention the amount of clot which was found. The said statement has been made for the purpose of developing an argument that to die out of hemorrhage, certain amount is specified, which was not done by the prosecution in the instant case. 21. In support of his submission, the learned Amicus has relied upon a case of Raja Ram Vs. State of Rajasthan reported in (2005) 5 SCC 272 . In the said case, it has been laid down that if a prosecution witness is not declared hostile, the version of such witness is liable to be considered. For ready reference, the relevant observation are extracted hereinbelow: “9. But the testimony of PW-8 - Dr. Sukhdev Singh, who is another neighbour, cannot easily be surmounted by the prosecution. He has testified in very clear terms that he saw PW-5 making the deceased believe that unless she puts the blame on the Appellant and his parent she would have to face the consequences like prosecution proceedings. But the testimony of PW-8 - Dr. Sukhdev Singh, who is another neighbour, cannot easily be surmounted by the prosecution. He has testified in very clear terms that he saw PW-5 making the deceased believe that unless she puts the blame on the Appellant and his parent she would have to face the consequences like prosecution proceedings. It did not occur to the Public prosecutor in the trial Court to seek permission of the court to hear PW-8 as a hostile witness for reasons only known to him. Now, as it is, the evidence of PW-8 is binding on the prosecution. Absolutely no reason, much less any good reason, has been stated by the Division Bench of the High Court as to how PW-8 s testimony can be side- lined.” 22. The learned Amicus has also relied upon the case of Rupinder Singh Sandhu Vs. State of Punjab and Ors. reported in (2018) 16 SCC 475 by submitting that in the said case, the amount of hemorrhage was found to be 100-150 ML and the conviction was converted to one under Section 323 from Section 302 of the Indian Penal Code. He has submitted that in absence of any finding on the amount of haemorrhage, it cannot be concluded that the death was due to the haemorrhage. 23. The learned Amicus has submitted that the impugned judgment has not taken into consideration the aforesaid factors and therefore, it is a fit case for interference by this Court. 24. Per contra, Shri Kaushik, the learned Additional Public Prosecutor has submitted that the version of PW2 cannot be said to be contradictory to the version of PW3. He has submitted that the fact of causing the injury was consistently stated by both the aforesaid witnesses. He has also submitted that though PW2 had deposed that the appellant had pushed the deceased, by a mere push, a person will not suffer such injuries to cause fracture of the skull. He has submitted that the conduct of the appellant is also relevant and in this case, the appellant was found to be hiding in latrine after the incident. He has submitted that non-examination of the weapon by forensic expert will not be fatal to every case, more particularly, in those cases where there are eyewitnesses. He has submitted that the conduct of the appellant is also relevant and in this case, the appellant was found to be hiding in latrine after the incident. He has submitted that non-examination of the weapon by forensic expert will not be fatal to every case, more particularly, in those cases where there are eyewitnesses. He has submitted that the deposition of PW2, PW3 and PW9 read with the Post Mortem Report would establish the prosecution case. He accordingly submits that no interference is liable to be made in the instant case. 25. The rival contentions advanced by learned counsel for the parties have been duly considered and the materials placed before this Court have been carefully perused. We have also examined the original records. 26. The incident had occurred on 05.03.2015 at 7:30 pm, as would reveal from the Ejahar lodged on 06.03.2015 by the elder brother of the deceased, who had deposed as PW3. From the materials available on record and perusal of the depositions, it appears that apart from the official witnesses, the other witnesses, except PW2 and PW3 are hearsay witnesses. PW2 and PW3, both claim to be eyewitnesses. However, there is a stark difference in the narration of the facts by the said PW2 and PW3. While the aspect of there being a quarrel and fighting between PW appear to be consistent in the 2 depositions, the aspect of causing the fatal injury however, differs grossly. While PW2 had deposed that in course of fighting followed by a quarrel, the appellant had pushed the deceased who got hit against a betel nut tree causing the injury, PW3 had deposed that he saw the appellant hitting the head of the deceased with a bamboo stick causing the injury. Though the lathi was seized, there was no effort on the part of the prosecution to connect the seized lathi, with that of the appellant. 27. As rightly pointed out by the learned Amicus, PW2 was not declared hostile and in that view of the matter, by following the principles laid down by the Hon’ble Supreme Court in a catena of decisions, including the case of Raja Ram (supra), there would be an obligation to consider such deposition as valid deposition which the prosecution cannot discard. 28. 28. This Court is also of the view that from the deposition of PW2 and PW3, two different conclusions can be arrived at. If one goes by the deposition of PW2, though the aspect of causing the injury is proved, the intention to cause the death in all probability, cannot be invariably concluded. It may also be noted that the Doctor who had conducted the post-mortem (PW8) in his cross- examination had accepted the proposition that such injury can also be caused by falling on hard substance. 29. It is also settled principle in criminal jurisprudence that when two views are possible the one pointing to the innocence of the accused should be adopted. In the instant case, the version advanced by PW2 appears to be in favour of the accused, from where the intention to cause the death of the deceased cannot be readily inferred. In this context, one may gainfully refer to the case of the Hon’ble Supreme Court of Kali Ram v. State of Himachal Pradesh reported in AIR 1973 SC 2773 , wherein it was observed as under: "25. Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. This principle has a special relevance in cases where in the guilt of the accused is sought to be established by circumstantial evidence.” 30. In the backdrop of the aforesaid discussion, it is required to be seen as to whether the offence would be one which would come under the definition of Murder as per Section 300 of the Indian Penal Code or would amount to Culpable Homicide not amounting to Murder. 31. The Hon’ble Supreme Court in the case of Anda and Others. Vs. the State of Rajasthan reported in AIR 1966 SC 148 has laid down as follows: “5. Section 300 tells us when the offence is murder and when it is culpable homicide not amounting to murder. 31. The Hon’ble Supreme Court in the case of Anda and Others. Vs. the State of Rajasthan reported in AIR 1966 SC 148 has laid down as follows: “5. Section 300 tells us when the offence is murder and when it is culpable homicide not amounting to murder. begins by setting out the circumstance when culpable homicide turns into murder which is punishable under S. 302 and the exceptions in the same section tell us when the offence is not murder but culpable homicide not amounting to murder punishable under S. 304.Murder is an aggravated form of culpable homicide. The existence of one of four conditions turns culpable homicide into murder while the special exceptions reduce the offence of murder again to culpable homicide not amounting to murder. We are not concerned with the exceptions in this case and we need not refer to them. … 7. ...The sufficiency of an intentional injury to cause death in the ordinary way of nature is the gist of the clause irrespective of an intention to cause death. Here again, the exceptions may bring down the offence to culpable homicide not amounting to murder.” 32. Section 300 of the IPC lays down 5 exceptions where culpable homicide would not amount to murder. However, it is settled law that an offence under Section 299 of the not to fall under the offence of murder under would not be restricted only to the five exceptions. For a culpable homicide to be murder, it must come within the four provisions of . Murder is the gravest form of culpable homicide. At this stage it will be beneficial to refer to the principles laid down by the Hon’ble Supreme Court in the case of State of AP vs Rayavarapu Punnayya and Anr. reported in AIR 1977 SC 45 . “21. From the above conspectus, it emerges that 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. 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 . 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 Section300. 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 , the offence would still be ‘culpable homicide not amounting to murder’, punishable under the First Part of Section 304, Penal Code.” 33. Further in the case of Kishore Singh and Anr. vs. The State of M.P. reported in AIR 1977 SC 2267 it has been laid down as follows: “11. The distinction between culpable homicide ( Section 299 , I.P.C.) and murder ( Section 300 , I.P.C.) has always to be carefully borne in mind while dealing with a charge under Section 302 , I.P.C. Under the category of unlawful homicides fall both cases of culpable homicide amounting to murder and those not amounting to murder. Culpable homicide is not murder when the case is brought within the five exceptions to , I.P.C. But even though none of the said five exceptions are pleaded or prima facie established on the evidence on record, the prosecution must still be required under the law to bring the case under any of the four clauses of . I. P. C. to sustain the charge of murder. I. P. C. to sustain the charge of murder. If the prosecution fails to discharge this onus in establishing any one of the four clauses of , I. P. C., namely, 1stly to 4thly, the charge of murder would not be made out and the case may be one of culpable homicide not amounting to murder as described under S. 299, I. P. C.” 34. There is another aspect of the matter regarding the nature of the onslaught. Even if the version of PW3 is considered for an objective analysis, firstly, the object used for hitting the deceased was not per se any weapon of deadly nature but a bamboo stick. It also transpires from the medical evidence that there is only one injury which leads to the conclusion that only one blow was given. Though there is no strait jacket formula that where only a single blow is involved, there may not be an intention to cause death, it would be necessary to examine the particular facts and circumstances. In this connection it would be beneficial to refer to the case of Abani K. Debnath and Anr. Vs State of Tripura reported in (2005) 13 SCC 422 wherein the Hon’ble Supreme Court, on noticing that the death was caused by one blow of a dao in the spur of the moment which was preceded by a quarrel had converted the punishment from Section 302 of the IPC to 304 Part II. 35. In the case of Pularu Vs. State of M.P. reported in AIR 1993 SC 1487 , the Hon’ble Supreme Court was dealing with a case where death was caused by a single blow with an agricultural equipment. It was held as follows: “7. That takes us to the nature of the offence. All the three eye-witnesses have spoken that the appellant dealt only one blow with the agricultural implement. Having regard to the time and the surrounding circumstances it is difficult to hold that he intended to cause the death of the deceased particularly, when he was not armed with any deadly weapon as such. All the three eye-witnesses have spoken that the appellant dealt only one blow with the agricultural implement. Having regard to the time and the surrounding circumstances it is difficult to hold that he intended to cause the death of the deceased particularly, when he was not armed with any deadly weapon as such. As an agriculturist he must have been having a tabbal in his hands and if in those circumstances he dealt a single blow it is difficult to convict him by invoking clause (1) or (3) of Section 300 , I.P.C. It cannot be said that he intended to cause that particular injury which unfortunately resulted in the fracture of bones. Therefore, the offence committed by him would be one amounting to culpable homicide punishable under Section 304, Part-II I.P.C. We accordingly set aside the conviction of the appellant under Section 302 , I.P.C. and sentence of imprisonment for life awarded thereunder. Instead we convict him under Sec. 304, Part-II, I.P.C. and sentence him to undergo Rigorous Imprisonment for seven years. The appeal is partly allowed to the extent indicated hereinabove.” 36. We have also noticed that though the lathi was seized vide seizure list Ext. 2, there are no materials to show that any finger print matching was done with the aforesaid weapon. 37. In the case in hand, even if the version of PW3 is accepted, the intention of the appellant to cause the death of the deceased cannot be readily inferred. 38. Under the aforesaid facts and circumstances and the discussions made, we are of the view that the conviction is liable to be converted under Section 304 Part II of the IPC which is accordingly done. Consequently, the sentence is altered to rigorous imprisonment for a period of 7 years with fine of Rs. 5000/- (Rupees Five Thousand) in default of which simple imprisonment for 6 months. 39. The appeal accordingly stands partly allowed. 40. Let the records of the case be sent back. 41. For the valuable assistance rendered by Shri NJ Das, the learned Amicus Curiae, we placed on record our appreciation and he would be entitled to the prescribed fee.