JUDGMENT & ORDER : M. Zothankhuma, J. 1. Heard Mr. P. K. Deka, learned counsel for the appellant and Ms. B. Bhuyan, learned Senior Counsel and Addl. PP for the State. 2. This appeal has been filed against the impugned Judgment dated 24.01.2024, passed by the learned Sessions Judge, Cachar, Silchar, in Sessions Case No. 103/2016, by which the appellant has been convicted under Section 302 IPC and sentenced to undergo rigorous imprisonment for life with a fine of Rs. 10,000/-, in default, to undergo simple imprisonment for three months. 3. The brief facts of the case is that an FIR dated 13.07.2015 was submitted by the informant (PW-1) to the Officer-in-Charge of Sonai P.S., stating that the informant’s family used a road for the purpose of ingress and egress from their house, which was claimed by the 7 accused persons as their land. This resulted in the 7 accused persons trying to occupy the road by force and not allowing the informant’s family to use it. Around 6 pm on 09.07.2015, the appellant with 6 other co-accused persons who were armed with weapons, detained the family members of the informant on the road, while they were coming back to their house from the vegetable field. The 7 accused persons thereafter chased them and trespassed into their house. They assaulted the informant’s family members with lathi, dao and shovel (wooden stick) etc., causing grievous injury on the head of Md. Burhan Uddin Barbhuiya (deceased), who is the elder brother of the informant. The informant’s sister-in-law Jyotsna Begum and nephew Imran Hussain Barbhuiya were also subjected to assault. The informant also stated that the hand of his sister-in-law was also possibly fractured in the assault. After assaulting the family members of the informant, the accused persons opened their alimirah and took away Rs. 50,000/-. They also took a Nokia mobile phone besides causing damage, by breaking the walls and windows of the house as well as the boundary fencing of the house. 4. Pursuant to the FIR, Sonai P.S. Case No. 230/2015 dated 09/07/2015 under Sections 147/148/149/447/341/325/326/379/ 427 IPC was registered and the seven accused persons mentioned in the FIR were arrested. 5. After the investigation of the case by PW Nos. 4. Pursuant to the FIR, Sonai P.S. Case No. 230/2015 dated 09/07/2015 under Sections 147/148/149/447/341/325/326/379/ 427 IPC was registered and the seven accused persons mentioned in the FIR were arrested. 5. After the investigation of the case by PW Nos. 12 & 13, charge sheet was submitted against all the 7 accused persons, as a prima facie case had been found established against them under Sections 147/148/149/447/34/323/326/379/427 and 302 of the IPC. However, due to the addition of Section 302 IPC, the case was committed to the Sessions Court. 6. After commitment of the case to the Sessions Court, Cachar for trial, the case of one of the accused, Foiz Ahmed Barbhuiya, was forwarded to the Juvenile Justice Board, as he was found to be a minor at the time of the alleged crime. 7. The learned Trial Court thereafter framed charges under Sections 148/447/323/427/302/149/380 IPC against the appellant and the other 5 co-accused persons, who all pleaded not guilty and claimed to be tried. 8. During the trial 15 prosecution witnesses were examined. Co-accused Abidur Rahman Barbhuya expired on 05.09.2018. The examination of the remaining co- accused persons was thereafter done by the learned Trial Court under Section 313 Cr.PC. The learned Trial Court thereafter convicted the accused Moklish Ahmed Barbhuiya only under Section 302 IPC and sentenced him accordingly. However, the remaining 4 other co-accused persons were acquitted of the charges framed against them. 9. The accused Moklish Ahmed Barbhuya, being aggrieved with the impugned judgment and order, has filed the present appeal. 10. The learned counsel for the appellant submits that when the evidence against all the accused persons was the same, in that they had all been identified as assaulters, the learned Trial Court could not have singled out the present appellant for conviction for the death of Md. Burhan Uddin Barbhuiya and acquitted the other 4 persons. He submits that the other co-accused persons have been named as the perpetrators of the assault on the deceased also by various witnesses. However, they have been acquitted of the charge framed against them. On the other hand, the present appellant has been named as one of the assailants by PW Nos. 5 & 6 only and the appellant has been convicted on the basis of the evidence of PW Nos. 5 & 6 only. However, they have been acquitted of the charge framed against them. On the other hand, the present appellant has been named as one of the assailants by PW Nos. 5 & 6 only and the appellant has been convicted on the basis of the evidence of PW Nos. 5 & 6 only. He submits that the learned Trial court has erred in not applying the evidence and the law equally to everybody. As 4 co-accused persons have been acquitted, he should have been acquitted of the charge framed against him also. 11. The learned counsel for the appellant submits that as the entire dispute between the parties was with regard to land and there being no intention or premeditation on the part of the appellant to kill the victim, Section 302 IPC could not be said to be attracted in this case. He further submits that the learned Trial Court had clearly observed in the impugned judgment that a quarrel ensued between the parties. Due to a grave and sudden provocation, which resulted in the loss of self control, the appellant hit the deceased with a wooden stick. He submits that in view of the above, Exception 1 to Section 300 IPC would apply and a case of murder could not have been said to have been proved by the prosecution. He accordingly submits that at best, the appellant could have been convicted under Section 304 Part-II IPC and not under Section 302 IPC. 12. Ms. B. Bhuyan, the learned APP, on the other hand, submits that there is nothing to show that there was any provocation on the part of the deceased to the appellant or others, which could have justified the assault made on the deceased by the appellant and the co-accused with weapons. She submits that the appellant and the co-accused were the aggressors in the present case and they had in fact chased them into the house of the deceased, though the actual place of assault may not have been inside the house of the deceased. Also, the evidence of PW Nos. 5 and 6 shows that they had specifically named the appellant as the person who had hit the deceased on his head with the sia (wooden stick). Further, the post-mortem examination report of the victim corroborates the evidence of the prosecution witnesses that the deceased had died due to head injuries. 13. Also, the evidence of PW Nos. 5 and 6 shows that they had specifically named the appellant as the person who had hit the deceased on his head with the sia (wooden stick). Further, the post-mortem examination report of the victim corroborates the evidence of the prosecution witnesses that the deceased had died due to head injuries. 13. The learned APP also submits that the Exception 1 to Section 300 IPC is not attracted to the facts of the case, as no such ground has been ever been taken by the appellant during trial. The evidence of the prosecution witnesses also does not show that there was any grave and sudden provocation on the part of the deceased, to give any reason to the appellant to have assaulted the deceased. She accordingly submits that the impugned judgment and order should be upheld. 14. We have heard the learned counsels for the parties. 15. As can be seen from the submissions made by the learned counsels for the parties and the evidence adduced by 15 Prosecution Witnesses, the family of the deceased had been assaulted by seven accused persons, whose names are as follows:- (1) Md. Abidur Rahman Barbhuiya, (2) Md. Moklish Ahmed Barbhuiya, (3) Md. Altaf Hussain Barbhuiya, (4) Md. Hanif Ahmed Barbhuiya, (5) Md. Faruk Ahmed Barbhuiya, (6) Md. Alaur Rahman Barbhuiya, (7) Md. Fayez Ahmed Barbhuiya. 16. Out of these 7 accused persons, accused no. 7 had been found to be a minor. His case was forwarded to the Juvenile Justice Board. Further, during the trial proceedings, accused no.1 expired on 05/09/2018. 17. PW-1 (informant) in his evidence has stated that the road which was used by the informant and his deceased brother’s family from their house, had been claimed by the accused persons as their land. To stop the informant and his brother’s family from using the land as a road, the informant's brother’s family had been assaulted on 09/07/2015. PW-1 states that he saw the accused persons assaulting the deceased without naming the names of the accused persons. He also stated that the accused persons entered the house of the deceased and assaulted his deceased brother’s wife and son. 18. The evidence of PW-2 is also to the effect that he saw the accused persons assaulting the deceased, without naming the accused persons. 19. He also stated that the accused persons entered the house of the deceased and assaulted his deceased brother’s wife and son. 18. The evidence of PW-2 is also to the effect that he saw the accused persons assaulting the deceased, without naming the accused persons. 19. The evidence PW-3 is to the effect that he saw the accused persons quarrelling with the deceased. The accused persons then entered the house of the deceased with deadly weapons and started assaulting him. Though they tried to restrain the accused persons, they were unable to stop the assault. 20. The evidence PW-4 is to the effect that on going to the place of occurrence, he found the deceased with an injury to his forehead. The wife of the deceased then told PW-4 that the accused nos. 1, 2, 4, 5 & 6 had assaulted the deceased and other inmates of the house. He also saw the accused persons coming out from the house of the informant. 21. The evidence of PW-5 is to the effect that on hearing a hue & cry, he proceeded towards the house of the deceased, wherein he saw an altercation was going on between the deceased and accused nos. 1, 2, 3, 4, 5, 6 & 7. The accused persons were armed with sia, lathi, sabol and rod. Thereafter, the accused Moklish, the present appellant, inflicted a blow on the head of the deceased with a sia, due to which the deceased fell to the ground. Thereafter, the accused Hanif assaulted the wife and son of the deceased. The same took place in the courtyard of the deceased, whereupon the accused persons then fled. 22. The evidence of PW-6 is to the effect that the accused Moklish Ahmad, the present appellant, assaulted the deceased with a sia (heavy wooden stick which is used for removing the husk from paddy). Thereafter, the accused Hanif assaulted the wife and son of the deceased with sabol (an instrument made from heavy iron for lifting). 23. The evidence of PW-7 is to the effect that he was working as Registrar of Surgery, Silchar Medical College and Hospital on 09/07/2015 when he examined the wife and son of the deceased. While there was a lacerated wound on the left forearm of the wife of the deceased, there was no external injury found on the son of the deceased. 24. While there was a lacerated wound on the left forearm of the wife of the deceased, there was no external injury found on the son of the deceased. 24. The evidence of PW-8 is to the effect that when he heard about the incident of assault made on the deceased and his family, he went to the place of occurrence and found the deceased, his wife and son lying injured in their courtyard. On inquiry about the same, the wife of the deceased informed him that the 7 accused persons had assaulted them with weapons. 25. The evidence of PW-9 is to the effect that he heard about the assault on the deceased and his family by the accused persons. 26. The evidence of PW-10, who is the wife of the deceased, is to the effect that while she was returning home from their vegetable garden along with her husband and son, the seven accused persons attacked them with a sia, lathi, sabol and dao. On entering their house, the accused persons also entered their house and started assaulting them. They then came out of their house into the courtyard where she sustained injury on her left hand and her son sustained injury on his head. Her husband was badly beaten by the accused persons and thereafter her husband became senseless. She was taken with her son for treatment to the hospital. Her husband was referred to the Guwahati Medical College and Hospital. After 9 days of treatment, her husband succumbed to the injuries sustained by him in the assault. 27. The evidence of PW-11, who is the son of the deceased, is similar to what has been stated by his mother (PW-10). 28. The evidence of PW-12, who is the S. I. of Police, is to the effect that he was asked to investigate the incident that occurred on 09/07/2015 and accordingly he conducted the investigation. He also seized one sia, one dao, one piece of iron rod, and one iron sabol. He also states that he had searched for the accused persons but did not find them in their respective houses. However, on 14/07/2015, 4 of the accused persons i.e. accused nos. 2, 3, 4 & 5, surrendered at the Police Station. 29. He also seized one sia, one dao, one piece of iron rod, and one iron sabol. He also states that he had searched for the accused persons but did not find them in their respective houses. However, on 14/07/2015, 4 of the accused persons i.e. accused nos. 2, 3, 4 & 5, surrendered at the Police Station. 29. The evidence of PW-13, who is the second Investigating Officer, is to the effect that he recorded the statements of the wife and son of the deceased and after completing the investigation, he submitted a charge sheet against all the 7 accused persons, having found a prima facie case established against them under section 147/148/149/447/341/323/326/379/ 427/302 IPC. 30. The evidence of PW-14, who is the doctor who conducted the post-mortem examination on the deceased, is to the effect that he found the following injuries on the body of the deceased:- “Injury present on the body, diffused contusion present over whole scalp. Barrhole of size 5X 4 sq cm present over right side of parietal bone and temporal bone. A surgical stitch wound of size 30 cm. in length repaired with 25 number of stitch present over right side of parietal and temporal bone. On removing of stitch margins are clean cut. Brain are congested. Membranes- bilateral subdural hammorhharge present over both side of cerebral hemisphere. Rest of the organs are congested.” In the opinion of PW-14, death was due to coma as a result of head injuries sustained as described above. All the injuries were ante-mortem in nature and caused by blunt force impact. 31. The evidence of PW-15, who is the SI of Police, is to the effect that he completed the inquest over the body of the deceased at the Advanced Neuroscience Hospital, Guwahati. 32. The accused persons were thereafter examined under section 313 Cr.P.C, wherein they all denied the evidence that they had assaulted the deceased and his family. 33. The learned Trial Court has held that though the Prosecution Witnesses had stated that the accused persons were present at the place of occurrence, the prosecution had failed to establish all the ingredients of section 149 IPC in the course of trial. 33. The learned Trial Court has held that though the Prosecution Witnesses had stated that the accused persons were present at the place of occurrence, the prosecution had failed to establish all the ingredients of section 149 IPC in the course of trial. The learned Trial Court held that there was no predetermined association of the accused persons in forming an unlawful assembly, inasmuch as, the dispute with regard to the land in question was an ongoing dispute between the family of the informant and his brother on one side and the accused persons on the other. Further, the evidence adduced showed that it was only the present appellant who had hit the deceased with a sia. As such, only the present appellant was found guilty by the learned Trial Court, of having murdered the deceased. 34. Though some of the prosecution witnesses have stated that all the accused persons had assaulted the deceased, his wife and son, no names have been mentioned by them. However, PW 5 and 6 have specifically named the present appellant as the person who had assaulted the deceased with a specific weapon, i.e. sia. 35. On considering the fact that the learned Trial Court has already come to a finding with regard to the fact that section 149 IPC was not attracted to the facts of the case and has convicted only the appellant under section 302 IPC, we cannot come to a different finding with regard to whether the acquitted co-accused persons were also guilty of having committed offence under section 302 read with section 149 IPC, inasmuch as, there is no appeal against the acquittal of the other 4 co-accused persons. 36. The evidence recorded by the learned Trial Court does not show any provocation on the part of the deceased and his family towards the accused persons or to the appellant. No weapon was in the hands of the deceased or his family. On the other hand, it was the appellant and the other co-accused persons who were waiting for the deceased and his family on the road with weapons. No weapon was in the hands of the deceased or his family. On the other hand, it was the appellant and the other co-accused persons who were waiting for the deceased and his family on the road with weapons. Though there might have been a quarrel between the parties with regard to the long standing dispute regarding ownership of the land, which was being used as a road by the deceased and his family, the same, in our view, does not lead us to believe that any of the Exceptions 1 to 5 of section 300 IPC, especially Exception-I, is attracted for the simple reason that the evidence does not show that there had been a grave and sudden provocation on the part of the deceased and his family towards the appellant. 37. With regard to the stand of the appellant that the death of the deceased was not done with the intention of causing death or bodily injury, sufficient in the ordinary course of nature to cause death, it would be profitable to refer to the decision of the Supreme Court in the case of State of Uttarakhand Vs. Sachendra Singh Rawat reported in (2022) 7 SCC 227 . In the above case, the Supreme Court considered the observations and decision made in another of it’s case, i.e. Pulicherla Nagaraju Vs. Sachendra Singh Rawat reported in (2022) 7 SCC 227 . In the above case, the Supreme Court considered the observations and decision made in another of it’s case, i.e. Pulicherla Nagaraju Vs. State of A.P. reported in (2006) 11 SCC 444 , wherein it had held that the factors to be considered for deciding whether there was intention to cause death or bodily injury sufficient in the ordinary course to cause death, would be as follows :- “(i) nature of the weapon used; (ii) whether the weapon was carried by the accused or was picked up from the spot; (iii) whether the blow is aimed at a vital part of the body; (iv) the amount of force employed in causing injury; (v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight; (vi) whether the incident occurs by chance or whether there was any premeditation; (vii) whether there was any prior enmity or whether the deceased was a stranger; (viii) whether there was any grave and sudden provocation and if so, the cause for such provocation; (ix) whether it was in the heat of passion; (x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner; (xi) whether the accused dealt a single blow or several blows.” 38. In the case of Anbazhagan Vs. State represented by the Inspector of Police , reported in AIR 2023 Supreme Court 3660, the Supreme Court has held that when a Court is confronted with a question as to whether the offence of murder has been made out, the true test is to find out the intention or knowledge of the accused in doing the act. If the intention or knowledge was such as described in Clause 1 to 4 of Section 300 of the IPC, the act will be murder even though only a single injury was caused. The Supreme Court has further held that even when the intention or knowledge of the accused may fall within Clauses Firstly to Fourthly of Section 300 of the IPC, the act of the accused, which would otherwise be murder, will be taken out of the purview of murder, if the accused’s case attracts any of the five Exceptions enumerated in that Section. 39. In the case of Gurmail Singh & Another Vs. 39. In the case of Gurmail Singh & Another Vs. State of Uttar Pradesh & Another , reported in (2022) 10 SCC 684 , the Apex Court has held that in order to make culpable homicide as murder, the act by which death is caused should fall not only under any one or more of the clauses Firstly to Fourthly under Section 300 IPC, but they should also not fall under any of the five Exceptions to Section 300 IPC. As such, in order to make the present case culpable homicide not amounting to murder, we have to see whether the case falls under any of the Exceptions 1 to 5 of Section 300 IPC. 40. In the case of Dhirajbgai Gorakhbhai Nayak Vs. State of Gujarat reported in (2003) 9 SCC 322 , the Supreme Court has observed on the applicability of Exception 4 to Section 300 IPC in para 11, as follows :- " 11 . The Fourth Exception of Section 300 IPC covers acts done in a sudden fight. The said Exception deals with a case of prosecution (sic provocation) not covered by the first exception, after which its place would have been more appropriate. The Exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of Exception 1 there is total deprivation of self-control, in case of Exception 4, there is only that heat of passion which clouds men's sober reason and urges them to deeds which they would not otherwise do. There is provocation in Exception 4 as in Exception 1, but the injury done is not the direct consequence of that provocation. In fact, Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon an equal footing. A "sudden fight" implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor could in such cases the whole blame be placed on one side. For if it were so, the Exception more appropriately applicable would be Exception 1. There is no previous deliberation or determination to fight. A "sudden fight" implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor could in such cases the whole blame be placed on one side. For if it were so, the Exception more appropriately applicable would be Exception 1. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. The help of Exception 4 can be invoked if death is caused: (a) without premeditation, (b) in a sudden fight, (c) without the offenders having taken undue advantage or acted in a cruel or unusual manner, and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the "fight" occurring in Exception 4 to Section 300 IPC is not defined in IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties had worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in a cruel or unusual manner. The expression "undue advantage" as used in the provision means "unfair advantage"." 41. In the present case, the evidence shows that the appellant and other co- accused had been waiting for the deceased and his family on the road. It must further be shown that the offender has not taken undue advantage or acted in a cruel or unusual manner. The expression "undue advantage" as used in the provision means "unfair advantage"." 41. In the present case, the evidence shows that the appellant and other co- accused had been waiting for the deceased and his family on the road. There is nothing in the evidence to show that there had been any grave and sudden provocation on the part of the deceased and his family towards the appellant for the appellant to have been deprived of any power of self control. There is also nothing to show that there was a sudden quarrel between the deceased and the appellant or the other co-accused, except the fact that there had been a lingering issue regarding ownership of the road, which the appellant and the co-accused had claimed as a part and parcel of their land. It is also not in dispute that the appellant and the others had not only chased the deceased and his family, but they also entered the house of the appellant. The appellant had thereafter hit the deceased with a sia on his head which is a vital part of the body. The above facts which have been proved by the evidence of the witnesses proves that none of the exceptions provided in Section 300 IPC were present at the time of assault by the appellant on the deceased which has been proved by the eye witnesses, i.e., PWs-5 & 6. 42. In view of the reasons stated above, this Court does not find any infirmity with the finding of the learned Trial Court that the appellant was guilty of having committed the offence punishable under Section 302 IPC. 43. The appeal is accordingly dismissed. 44. Send back the TCR.